United States v. Vincent Witort

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 13, 2021
• Docket: 18-2410
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0430n.06

Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18-2408, 18-2410, 19-1028, 19-1029

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) FILED ) Sep 13, 2021 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) MICHAEL KENNETH RICH (18-2268/2269); ) CARY DALE VANDIVER (18-2323/2324); ) ON APPEAL FROM THE PATRICK MICHAEL MCKEOUN (18-2342); JEFF ) UNITED STATES DISTRICT GARVIN SMITH (18-2364/2365); DAVID RANDY ) COURT FOR THE EASTERN DROZDOWSKI (18-2401); PAUL ANTHONY ) DISTRICT OF MICHIGAN DARRAH (18-2407/2408); VINCENT JOHN ) WITORT (18-2410); VICTOR CARLOS ) CASTANO (19-1028/1029), ) ) Defendants-Appellants. ) )

BEFORE: SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges.

GRIFFIN, Circuit Judge.

Today’s published opinion addresses two issues of first impression for our court. This

unpublished appendix to that opinion contains our decision on the remaining issues raised by

defendants on appeal.

I.

Formed in the late 1960s, the “Devils Diciples [sic] Motorcycle Club” (DDMC) was a

national motorcycle club that primarily operated out of southeast Michigan, with chapters across

the country. It had a top-down organizational structure, complete with national and local bylaws. Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Defendant Jeff Smith oversaw the Club as its national president. Defendants Paul Darrah and Cary

Vandiver also held national roles as vice-president and “warlord,” respectively. (Each chapter had

similar leadership roles for local-level control.) Members first had to go through a “prospecting”

process before fully joining the Club as a “patched” member. Chapters met on a regular basis and

the Club gathered periodically as a whole.

At its core, the DDMC was an organization that centered on methamphetamine (but

engaged in other criminal activities like stealing motorcycles and maintaining illegal gambling

machines). Its members and those associated with the Club used methamphetamine, which was

readily available at its clubhouses and social events. They also manufactured and distributed large-

scale quantities of it. Defendant Vincent Witort, a long-time California member with a national

reputation, frequently supplied other club members with distribution levels of the drug

manufactured across the country (including from an underground “lab” in Alabama). Those

members who trafficked drugs were required to “kick up” a portion of their sales to national

leaders. Smith, Darrah, Vandiver and defendant Patrick McKeoun (a respected club elder) all

helped oversee and facilitate the drug’s movement in and outside of the Club. McKeoun, for

example, convinced Smith and Vandiver to let a large-scale dealer distribute his methamphetamine

because he agreed to supply it to DDMC members and to help them financially when needed. And

Darrah collected dealers’ “taxes” and otherwise coordinated the flow of drugs throughout the

Club’s network. Defendant David Drozdowski was a prolific methamphetamine cook and an

ambitious up-and-coming member of the Club. Defendant Victor Castano was a large-scale

marijuana dealer before he joined the DDMC, and he added methamphetamine trafficking to his

repertoire when he became a fully patched DDMC member. And defendant Michael Rich, like

McKeoun, was an elder statesman of the Club who encouraged the drug’s use and distribution—

-2- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

in one poignant instance at a local clubhouse, Rich “gave permission” to those who wanted to

sample from a “gallon-size bag” of meth before it was divided and sold.

The DDMC enforced its ways through hierarchy, discipline, and violence. Failure to abide

by club rules could lead to fines, “black eyes” (being punched in the eye by order of club

leadership), and ultimately expulsion from the Club (and when that happened, the DDMC would

steal the former member’s motorcycle and take his paraphernalia, like the patched vest). But there

were more violent forms of discipline. There were at least three murders, and several assaults

against members and their associates. Innocent bystanders were not safe either, with one instance

of assault against someone who just happened to be wearing a vest that looked like a rival club’s

vest. And the Club strictly enforced its “talk s--t, get hit” motto; it made clear that “snitching” to

law enforcement officials was not to be tolerated through its use of ostracization, threats, and

violence. In at least one instance, club leadership coordinated perjurious testimony to help a

member try to defeat a firearm charge.

The original indictment in these cases was rendered in 2011. Following a separate

indictment and several superseding ones, the district court ultimately had before it over forty

defendants charged with myriad crimes. Most pleaded guilty, but those who did not were tried in

two groups. Those who pleaded guilty provided substantial testimony at both trials.

In 2015, defendants were all convicted of Racketeer Influenced and Corrupt Organizations

Act (RICO) conspiracy (Count 1), and with the exception of Rich (who was not charged), all were

also convicted of conspiracy to manufacture, distribute, and possess with intent to distribute

controlled substances (Count 3). Other convictions included an illegal gambling conspiracy,

witness tampering, obstruction of justice, subornation of perjury, and several violent crimes in aid

of racketeering (also known as VICAR). The combination of the RICO conspiracy and drug-

-3- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

trafficking conspiracy convictions became significant at sentencing because it lifted RICO’s 20-

year statutory-maximum ceiling to life in prison. The district court conducted significant fact-

finding during sentencing, and generally concluded that each defendant was accountable for

“relevant conduct” that occurred while he was a “patched” club member. This ultimately resulted

in life sentences for Smith, Darrah, Vandiver and Witort, and sentences in excess of thirty years

for the other four defendants.

These consolidated appeals are another prime example of the adage that “[l]osers in a trial

can go hunting for relief on appeal with a rifle or a shotgun. The rifle is better.” Fathera v. Smyrna

Police Dep’t, 646 F. App’x 395, 400 (6th Cir. 2016) (citation omitted). The eight defendants here

have each elected a shotgun for their own appeals, cumulatively raising over seventy issues that

span from pretrial rulings through sentencing. And through adoption of others’ briefs, each wish

to take credit for their co-defendants’ similar strategy of scattered rounds over targeted shots.

II.

There are three pretrial issues: (1) the legality of several Title III wiretap orders; (2) the

government’s alleged breach of Castano’s proffer agreement and its supposed vindictive

prosecution of him; and (3) a purported Sixth Amendment violation regarding Witort’s hiring of

new counsel just before trial.

A.

We begin with the wiretap of the DDMC’s Vice-President, Paul Darrah. Congress granted

statutory authority for law enforcement interception of private telephone conversations when it

passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510–

23. The statute permits a federal judge to issue a wiretap order if the government establishes:

(1) probable cause to believe that the targeted individual engaged or will engage in certain criminal

-4- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

activity; (2) that “normal investigative procedures have been tried and have failed or reasonably

appear to be unlikely to succeed if tried or to be too dangerous”; and (3) the wiretap application

includes “a full and complete statement” in that regard. § 2518(3)(c), (1)(c). Darrah argues that

the affidavits in support of wiretap applications for his phone did not establish probable cause or

necessity for the wiretap. We disagree.

1.

When reviewing Title III intercept orders for probable cause, we use the same standard

used to evaluate search warrants. See United States v. Alfano, 838 F.2d 158, 161–62 (6th Cir.

1988). “Certainty is not required, but rather a fair probability and something more than mere

suspicion.” United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011). We evaluate the affidavit

“on the totality of the circumstances and in a reasonable and common sense manner,” and give

“great deference” to the issuing judge’s determination that probable cause existed to issue the

intercept order because he was “in the best position to determine all of the circumstances in the

light in which they may appear at the time.” Alfano, 838 F.2d at 161–62 (citation omitted). Finally,

because the district court denied Darrah’s motions to suppress the fruits of the Title III surveillance,

“we review all evidence in the light most favorable to the government.” United States v. Young,

847 F.3d 328, 342 (6th Cir. 2017).

The affidavit provided by Special Agent Fleming more-than-adequately established

probable cause to believe that a wiretap of Darrah’s phone would lead to evidence of the DDMC

drug-trafficking organization. It was replete with information establishing Darrah’s position as

Vice President of the DDMC and his role as a “buffer” between other members of the Club and its

President, Jeff Smith. The affidavit further detailed concrete examples of Darrah’s personal

involvement in the DDMC’s criminal activities. For example, Special Agent Fleming explained

-5- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

how Darrah facilitated a controlled buy made by a cooperating witness (later identified as John

Pizzuti) from Vern Rich on September 6, 2007. On that date, Darrah and Rich exchanged several

telephone calls in the morning, and Darrah called Pizzuti to explain that Rich had dropped

something at Darrah’s house. Darrah then brought the item—methamphetamine—to Pizzuti in

exchange for money. From this incident (and many others), the issuing judge correctly determined

that the affidavit set forth a probability or substantial chance that tapping Darrah’s phone would

lead to evidence relating to criminal activity.

Arguing to the contrary, Darrah does not take the evidence in the light most favorable to

the government nor address the totality of the circumstances. For example, he downplays his role

in the drug transaction discussed above, suggesting that the affidavit establishes only “that Darrah

made a phone call as to an item left at his home by a DDMC member.” But the affidavit contains

much more detail, outlining precisely how Darrah facilitated the sale of methamphetamine from

Vern Rich to the cooperating witness. Along the same line, Darrah takes the position that he would

never discuss criminal activity on the phone, so the affidavit could not establish a reasonable

probability that a wiretap of it would lead to evidence of criminal activity. He is wrong. Even if

Darrah used coded language and veiled references in every call, it could still lead to evidence of

criminal activity because law enforcement officers were able to use cooperating witnesses,

confidential informants and other investigative techniques to break Darrah’s “code” and implicate

him in the Club’s criminal activity. Accordingly, we reject Darrah’s arguments that the affidavit

failed to establish probable cause for issuance of the original Title III intercept order.

2.

Regarding necessity, federal law enforcement officials must make “a full and complete

statement as to whether or not other investigative procedures have been tried and failed or why

-6- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C.

§ 2518(1)(c). This “[e]nsure[s] that wiretapping is not resorted to in a situation where traditional

investigative techniques would suffice to expose the crime.” Young, 847 F.3d at 343 (citation

omitted). “What is needed is to show that wiretaps are not being routinely employed as the initial

step in criminal investigation.” Id. (brackets and citation omitted). In other words, the government

“is not required to prove that every other conceivable method has been tried and failed or that all

avenues of investigation have been exhausted.” Alfano, 838 F.2d at 163. We review a district

court’s factual finding of necessity for clear error. See United States v. Cooper, 893 F.3d 840, 844

(6th Cir. 2018).

Darrah asserts that the necessity standard was not met because the government was able to

obtain “overwhelming information” from other sources. But we have held in numerous cases that

some measure of success in obtaining evidence from other sources is not determinative of

necessity. See, e.g., United States v. Corrado, 227 F.3d 528, 539–40 (6th Cir. 2000) (rejecting

argument that the government failed to demonstrate necessity where its “agents had already

gathered an exceedingly large quantum of evidence”). The same is true here. As the district court

observed, Fleming’s affidavit made clear that “[t]raditional investigative means were considered

and were correctly deemed insufficient to meet the Government’s legitimate need of uncovering

the extent of the alleged criminal enterprise, the potential participants, and determining how the

enterprise functioned.” That is exactly what Title III requires of officers seeking a wiretap. See

Alfano, 838 F.2d at 163–64; see also Poulson, 655 F.3d at 504 (finding the necessity requirement

satisfied where the government had “used a confidential informant, consensual recordings, a pen

register, physical surveillance, and documents before resorting to the wiretap”). Accordingly,

Darrah’s necessity argument fails.

-7- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

3.

Darrah separately challenges the legality of six extensions the FBI sought and received for

the wiretap. When seeking an extension of an intercept order, Title III requires “a statement setting

forth the results thus far obtained from the interception, or a reasonable explanation of the failure

to obtain such results.” 18 U.S.C. § 2518(1)(f). Our review of the affidavits in support of each

application for an extension of the Darrah intercept order establishes that the district court did not

clearly err when it found this requirement was met. Corrado again provides a comparable set of

facts. There, the court summarized the affidavits as follows:

[T]he affidavits tendered by the government in support of its Title III applications typically run seventy to one hundred pages and include a detailed description of the evidence that had already been obtained as well as a separate section detailing the aims of and need for continued electronic surveillance. The justifications listed by the government included the facts that the organization under investigation was believed to be an organized crime family that was substantially insulated against infiltration, that additional victims/witnesses would be unlikely to speak to the government out of fear of reprisal, and that attempts to interview these witnesses might compromise the government’s investigation.

227 F.3d at 539. Based on this, we concluded that the issuing judges did not abuse their discretion

by granting the government’s extension applications. Id. The same logic controls here. Each of

the successive affidavits set forth probable cause to believe that a wiretap of Darrah’s phone would

lead to additional evidence of the DDMC’s criminal enterprise and activities, recapped the

investigative efforts, and explained why an extension of the wiretap was justified. We see no basis

to reverse the district court on this ground.

4.

Darrah also takes issue with alleged misrepresentations in several of the affidavits, which

he says falsely painted him as an “enforcer” of the DDMC, even though he suffers from numerous

health issues, including a tracheotomy, a heart condition, diabetes, and a genetic blood disorder.

-8- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

He requested a hearing under Franks v. Delaware, 438 U.S. 154, 155–56 (1978). To get a Franks

hearing, Darrah had to make a “substantial preliminary showing” that the attesting agent had

knowingly or recklessly made misstatements or omissions of material information and that they

were “necessary to the finding of probable cause” of the issuing judge. Id. The district court heard

argument and denied the motion:

[Defendant argued] that [his] physical limitations were not adequately displayed or revealed to Judge Borman, and that it could have given him as the issuing judge a mistaken impression of physical vitality that Darrah did not have. I think . . . [the alleged misstatements are] insufficiently relevant to be of any importance in the issuance of a Title III intercept. In conclusion, there are no . . . omissions or misrepresentations identified. Such suggestions of misrepresentations or omissions are not material to the findings made by the issuing judge, so the motion for a Franks hearing is . . . denied.

We evaluate the “district court’s denial of a Franks hearing under the same standard as for

the denial of a motion to suppress: the district court’s factual findings are reviewed for clear error

and its conclusions of law are reviewed de novo.” United States v. Bateman, 945 F.3d 997, 1007

(6th Cir. 2019) (citation omitted). We agree with the district court that a Franks hearing was not

necessary because the alleged misrepresentations were not material to the findings of probable

cause made by the issuing judge. Whether or not Darrah had the physical capability to act as an

“enforcer,” the affidavits established a substantial basis to believe that Darrah, as the Vice-

President of the DDMC, oversaw and coordinated the Club’s criminal activity and that he was

personally involved in trafficking both meth and prescription painkillers. As the district court

found then, any reference to Darrah’s physical prowess or propensity for violence was not material

to the issuing judge’s finding of probable cause.

Accordingly, we affirm the district court’s denials of Darrah’s motions to suppress.

-9- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

B.

We next turn to Castano’s arguments that the district court should have dismissed the

indictment lodged against him because the government used statements obtained via a proffer

agreement for which he was granted immunity, and/or because his Fifth Amendment right to due

process was violated when the government engaged in a vindictive prosecution of him. We reject

both claims.

Castano first argues that the government violated Kastigar v. United States, 406 U.S. 441

(1972), by entering into a proffer agreement with him, and then using his immunized statements

in grand jury proceedings and at trial.

Some context is necessary to understand this claim. In 2006, a jury convicted Castano of

drug-distribution and firearm-possession charges. During the government’s case-in-chief, DDMC

members Vern Rich and Buck Lonsby gave testimony that contradicted Castano’s retelling of the

events leading up to his arrest. See United States v. Castano, 543 F.3d 826, 829–30 (6th Cir. 2008).

While incarcerated, Castano met with an Assistant United States Attorney and incriminated certain

members of the DDMC, namely Rich and Lonsby. After Castano’s sentence was cut short by his

successful appeal of the firearms conviction, the government requested that he submit to a proffer

as part of its larger investigation into the DDMC. The proffer letter promised that “no statement

made . . . during [the] proffer discussion [would] be offered against [Castano] in the government’s

case-in-chief in any criminal prosecution . . . for the matters currently under investigation.”

However, the government’s grant of immunity was contingent upon Castano making “a complete

and truthful statement of his knowledge of (and role in) the matters under investigation, and to

fully and truthfully answer all questions.” The letter specified that if Castano were to “omit facts

-10- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

about crimes, other participants, or his . . . involvement in the offenses,” he would be in material

breach of the agreement. Further, it clarified that the proffer letter and interview were not plea

discussions within the meaning of Federal Rule of Criminal Procedure 11 or Federal Rule of

Evidence 410, so “[a]ny use of the statements and information” was governed only by the “terms

of [the] letter.” Finally, the last paragraph reiterated that if Castano “fail[ed] to provide truthful

and complete information,” then there were “no restrictions on the government’s use of any

statements made” during the proffer interview.

Castano agreed to the terms and met with the government for an interview. He admitted

that he became a DDMC prospect in July of 2003 and earned his patch as a full member shortly

thereafter. And he spoke about some of his marijuana dealings and the obstruction of justice and/or

perjury related to his 2006 trial. Castano again implicated Vern Rich and Buck Lonsby, but he

largely did not discuss other DDMC members.

About three weeks after Castano’s proffer, the government used his testimony in the

ongoing grand jury proceedings related to the DDMC investigation. Castano was subsequently

indicted on multiple felony counts, including RICO conspiracy, drug conspiracy, and conspiracy

to suborn perjury. During pretrial proceedings, Castano filed a spate of motions, including requests

for the court to dismiss the indictment for vindictive prosecution and for an evidentiary hearing on

his claim that the government violated his rights under Kastigar. The government filed a motion

in limine affirmatively seeking to use Castano’s statements against him in its case-in-chief because

he had materially breached the terms of the proffer letter.

The district court held a hearing on the government’s motion in limine during Castano’s

trial but did not address Castano’s motions. At the hearing, “[t]he only issue” was whether Castano

made “omissions significant enough” to have materially breached the proffer agreement. The

-11- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

government argued that Castano had intentionally omitted material information about the DDMC’s

dealings. As just one example, the government highlighted that Castano omitted information that

he had arranged for DDMC member Mike Mastromatteo to purchase 400 pounds of marijuana in

a single transaction. The district court accepted the government’s argument:

It is clear to me, from the . . . comprehensive presentation made here and based upon the evidence that . . . [Castano] omitted significant facts and that from the evidence in the letters, he repeatedly, pre-2009 proffer, gave reasons why he was omitting some and advancing others. . . . His omissions are accordingly viewed . . . as being intentional and certainly material with respect to omitting significant portions of his own involvement in various of the criminal activities here and the criminal conspiracies involved. . . . There is no debate about the significance of material omissions standing alongside actual intentional false statements as qualifying for the admission of a statement that would otherwise be protected under the standards of the so-called Kastigar agreement.

Accordingly, the court granted the government’s motion in limine and allowed it to use Castano’s

statements as evidence during the trial.

The jury then convicted Castano. Just before he was sentenced, nearly three years later, he

filed a “Renewed Motion to Dismiss the Indictments for Kastigar Violations.” The district court

largely construed the motion as challenging the grand-jury phase of the case and deemed it

untimely under Federal Rule of Criminal Procedure 12. Nevertheless, the court then proceeded to

the merits and observed that the plain terms of the agreement—even assuming Castano had not

breached it—precluded the government only from using his statements in its case-in-chief, and not

during grand jury proceedings.

On appeal, Castano argues that the proffer agreement protected his statements from use

during grand jury proceedings because the term “case-in-chief” was not defined, and it could “be

construed differently[,] depending on the context[,]” to include grand jury proceedings. He further

claims the district court’s failure to conduct a pretrial hearing on his motion was reversible error

-12- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

and relitigates the district court’s factual finding that he materially breached the plea agreement.

These lines of attack are not meritorious.

To begin, the district court correctly concluded that the government’s promise not to use

Castano’s statements did not cover grand jury proceedings. We review this issue de novo to the

extent that it turns on interpretation of the proffer agreement’s terms. See United States v.

Shannon, 803 F.3d 778, 783 (6th Cir. 2015). General principles of contract law dictate that we

interpret the proffer agreement according to its plain meaning and give effect to its unambiguous

terms. See United States v. Fitch, 964 F.2d 571, 574 (6th Cir. 1992) (citation omitted) (“[W]e are

governed by normal ‘contract law standards’” when interpreting proffer agreements).

The government’s promise is set forth explicitly in the proffer letter:

Except as otherwise specified in this letter, no statement made by you or your client during this proffer discussion will be offered against your client in the government’s case-in-chief in any criminal prosecution of your client for the matters currently under investigation.

On appeal, Castano contends that “the presentation of evidence to a Grand Jury can be called the

‘case-in-chief during Grand Jury proceedings’ just like the presentation of evidence at trial can be

called the ‘case-in-chief during trial.’” Thus, he says that the contract is at least ambiguous because

“case-in-chief” is susceptible to more than one meaning.

We disagree. The term “case-in-chief” does not render the agreement ambiguous. “Case-

in-chief” is a term of art that refers to a trial, and not preliminary proceedings. See Case-in-Chief,

BLACK’S LAW DICTIONARY (11th ed. 2019). It is not used to describe grand jury proceedings

because they are one-party affairs without any defense or rebuttal. Accordingly, we agree with the

district court that proffer agreement did not restrict the government’s ability to use Castano’s

statements during grand jury proceedings.

-13- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Moving next to the government’s use of Castano’s statements at trial, proffer agreements

are contracts, so “[t]he conditions which will constitute a breach . . . are governed by the agreement

itself.” Fitch, 964 F.2d at 574 (citation omitted). “[T]he government bears the burden of proving

that the defendant failed to satisfy his part of the deal” and it “must prove that any breach was

material and substantial.” Id. “Although an inadvertent omission or oversight would not rise to

the level of a materially false statement so as to constitute a breach of the agreement, a bad faith,

intentional, substantial omission . . . does constitute a materially false statement and thereby a

breach of the agreement.” Id. (citation omitted and alteration in original). The district court made

such a finding here, ruling that Castano’s omissions were intentional and substantial, so his

statements could be used against him. We review the district court’s factual finding for clear error.

See United States v. Darwich, 574 F. App’x 582, 594 (6th Cir. 2014).

Castano has not established that the district court’s findings were clearly erroneous. He

claims that he omitted mention of the 400-pound marijuana deal because he was not a member of

the DDMC at that time. Yet Castano promised to provide the government “a complete and truthful

statement of his knowledge of (and role in) the matters under investigation”—which was not

limited to conduct that occurred while he was a DDMC member. And evidence of Castano’s

intentional omission of this information can be drawn from a letter he wrote to his girlfriend while

incarcerated, where he discussed how he had not given any information on Mastromatteo in his

earlier proffer because he “still consider[ed] Mike a friend.”1 Based on this evidence, the district

1 Castano also claims that his proffer was for a limited duration so he could not have given all of the information he knew in a single interview, and thus did not materially breach the agreement. However, the district court found that Castano intentionally protected DDMC members like Mastromatteo, so the duration of the proffer is inconsequential—no matter how long the interview went, Castano would not have provided the material information now at issue. -14- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

court could reasonably infer that Castano once again withheld material information to protect

Mastromatteo. Thus, it did not clearly err by determining that Castano’s decision to withhold

information about this drug transaction was an intentional and substantial breach of the proffer

agreement.

In addition to his many arguments stemming from the alleged breach of the proffer

agreement, Castano also claims that the district court abused its discretion by denying his motion

to dismiss the indictment for vindictive prosecution and/or outrageous government conduct.2 He

theorizes that he was indicted in these cases as retribution for his successful appeal of his

conviction for possession of a firearm during and in relation to a drug trafficking crime, which we

vacated because of a faulty jury instruction. See Castano, 543 F.3d at 828. The government opted

not to retry Castano, and the district court resentenced him to 42 months’ imprisonment after

declining to impose an upward variance for obstruction of justice that the government had

requested, based on a threatening letter Castano wrote to Vern Rich while incarcerated. Several

years later, the government charged various members of the DDMC, including Castano, with

offenses relating to perjury and obstruction of justice, which arose from Castano’s earlier trial.

The government included the Castano-to-Rich letter as an overt act in furtherance of the RICO

conspiracy.

“To punish a person because he has done what the law plainly allows him to do is a due

process violation of the most basic sort.” United States v. Goodwin, 457 U.S. 368, 372 (1982)

2 To the extent that Castano makes a freestanding claim of “outrageous government conduct,” the district court correctly observed that there is no such thing recognized in our caselaw. On appeal, Castano does nothing to refute that conclusion and instead repackages his grievances regarding the 2006 trial and the government’s supposed misuse of his proffer testimony. -15- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

(citation omitted). “A showing of vindictive prosecution requires (1) an exercise of a protected

right; (2) a prosecutorial stake in the exercise of that right; (3) unreasonableness of the prosecutor’s

conduct; and (4) the intent to punish the defendant for exercise of the protected right.” United

States v. Meda, 812 F.3d 502, 510 (6th Cir. 2015). The “Due Process Clause is not offended by

all possibilities of increased punishment, only by those that pose a realistic likelihood of

vindictiveness.” United States v. Roach, 502 F.3d 425, 443 (6th Cir. 2007) (alterations and citation

omitted).

Castano compares his case to United States v. Eddy, 737 F.2d 564, 565 (6th Cir. 1984),

where the defendant was first acquitted with making a false statement to a federally insured bank,

and then tried for perjury based on the statements he made at the first trial. There we concluded

that there was “a realistic likelihood of vindictiveness in the institution of [the] perjury

prosecution” because some of the alleged perjured statements were “literally true” and others were

so “obscure” as to be “inherently confusing and vague.” Id. at 572. Thus, we observed that the

alleged perjury was not “manifest,” and when “combined with the knowledge that the initial

criminal charges against Eddy resulted in” his acquittal, the factual predicate raised a presumption

of vindictiveness which the government had not rebutted. Id. Eddy has no bearing here. Unlike

that case, Castano was still convicted on some of the original criminal charges, and the government

has never attempted to try Castano again under § 924(c).

Additionally, we find no merit in Castano’s unsupported factual claim that the government

intentionally “waited to charge Castano with crimes in both cases until [he] successfully appealed

his § 924(c) conviction.” While it is true that some of the charges under review arose out of the

earlier legal proceedings, that fact alone falls well short of demonstrating a realistic likelihood that

the prosecutors’ actions were vindictive. Instead, as the district court noted, Castano fails to

-16- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

account for the fact that the government was engaged in a sprawling, decade-long investigation

into the DDMC criminal enterprise, and that he was likely going to be prosecuted at the

culmination of that investigation whether or not his § 924(c) conviction was vacated. Finally, the

district court’s failure to hold a hearing before trial was at most harmless because it hinges upon

Castano having made a showing of a realistic likelihood that he was being prosecuted for

successfully appealing his § 924(c) conviction, which he has not done.

We affirm the district court’s order denying Castano’s motion to dismiss for vindictive

prosecution.

C.

The last pretrial issue for review regards Witort’s Sixth Amendment right to counsel.

Approximately two months before trial, Witort’s family retained new counsel, Byron Pitts and

Phillip Comorski, to take over his defense from his court-appointed attorney, Kimberly Stout. To

that end, Pitts and Comorski filed a stipulation to substitute-in as counsel of record. After a hearing

and additional briefing, the district court allowed the attorneys to appear in the case to assist in

Witort’s defense. It did not, however, allow Stout to withdraw from the case. Instead, it ordered

Pitts and Comorski not to “interfere [with] or impede in” Stout’s direction of the defense. Witort

now claims that this arrangement, to which he did not object, violated his Sixth Amendment right

to counsel.

The Sixth Amendment guarantees “the right of a defendant who does not require appointed

counsel to choose who will represent him.” United States v. Gonzalez–Lopez, 548 U.S. 140, 144

(2006). Deprivation of the right to counsel-of-choice is structural error that does not require a

showing of prejudice or that the counsel defendant received was ineffective. Id. at 148–50. Witort

fails to consider, however, that this right “is circumscribed in several important respects.” Id. at

-17- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

144 (citation omitted). Among these limitations is the trial court’s discretion “in balancing the

right to counsel of choice against the needs of fairness” and “the demands of its calendar.” Id. at

152. We review a district court order denying a motion for substitute counsel for an abuse of

discretion, see United States v. Chambers, 441 F.3d 438, 446 (6th Cir. 2006), and we generally

consider the timeliness of the motion, the adequacy of the district court’s inquiry into any alleged

conduct between attorney and client, the extent of the alleged conflict, and the public’s interest in

the prompt and efficient administration of justice, see United States v. Powell, 847 F.3d 760, 778

(6th Cir. 2017).

The factors do not weigh in Witort’s favor. His motion was not timely; it came about two

months before trial, after his appointed counsel had expended hundreds of hours working on his

defense, and too late to ensure that the trial date would not be continued for all six defendants.

See, e.g., Chambers, 441 F.3d at 447 (finding untimely a motion for substitute counsel brought

one-and-a-half months before trial). Second, the district court conducted an adequate inquiry into

Witort’s rationale for seeking substitute counsel, even if it did not hear directly from him. Stout,

Pitts, and Comorski all agreed that the attorney-client relationship between Stout and Witort had

not broken down, and that a breakdown was not the impetus for seeking substitution of counsel.

See United States v. Marrero, 651 F.3d 453, 466 (6th Cir. 2011) (“[A] defendant’s differences of

opinions with his attorney do not create a complete breakdown of communication that

compromises his defense.”). This likewise means that the third factor weighs against Witort

because there was no claim that Stout and Witort had a “total lack of communication” which would

prevent “an adequate defense.” Powell, 847 F.3d at 778. Finally, the public interest weighed

against Witort because the prompt administration of justice would have been hindered by any delay

of the trial—a particularly weighty concern here, where the trial was expected to last months, and

-18- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

the other defendants had already been detained for two years or more awaiting their trial date.

Accordingly, the district court did not abuse its discretion by denying Witort’s request for

substitution of counsel on the eve of trial and instead allowing his newly retained counsel to assist

in his defense.

III.

We turn to the bulk of the issues on appeal—the district court’s evidentiary rulings; the

sufficiency of the evidence supporting defendants’ convictions; the district court’s jury

instructions; and the government’s conduct in prosecuting these cases.

We begin with defendants’ numerous challenges to the district court’s evidentiary rulings,

which we review for an abuse of discretion. See United States v. Mack, 808 F.3d 1074, 1084 (6th

Cir. 2015). “When reviewing for abuse of discretion, we view ‘the evidence in the light most

favorable to its proponent, giving the evidence its maximum reasonable probative force and its

minimum reasonable prejudicial value.’” United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009)

(quoting United States v. Jackson, 473 F.3d 660, 668 (6th Cir. 2007)). The question is not whether

the evidence is prejudicial, but whether it is unfairly so. Unfair prejudice “does not mean the

damage to the defendant’s case that results from the legitimate probative force of the evidence;

rather, it refers to evidence which tends to suggest decision on an improper basis.” United States

v. Mendez–Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). “We reverse only where the district court’s

erroneous admission of evidence affects a substantial right of the party.” United States v. White,

492 F.3d 380, 398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).

-19- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

The operative indictment charged several violent felonies as predicate acts of the

conspiracy: the murder of Charles Isler at the Cadillac Chapter clubhouse; the murders of William

Bausch and Thomas Thacker in Indiana; and a violent attack on five members in Arizona dubbed

the “Box Canyon Incident.” Defendants raise discrete issues regarding the admission of evidence

about these crimes.

In 1993, DDMC member William Bartell murdered Charles Isler at the Club’s Cadillac,

Michigan clubhouse after Isler complained about the quality of drugs he had purchased. Club

members then moved and buried Isler’s body. Bartell was eventually convicted of second-degree

murder and three others were convicted of obstruction of justice, conspiracy, and being an

accessory after the fact to murder.

Vandiver contends this evidence was more prejudicial than probative and thus should have

been excluded under Federal Rule of Evidence 403. However, he objected below to this evidence

on hearsay grounds only. Having lodged only that specific objection below, we review his newly

raised Rule 403 challenge for plain error.3 See United States v. Evans, 883 F.2d 496, 499 (6th Cir.

1989). Plain error means: “(1) an error occurred; (2) the error was obvious or clear; (3) the error

affected [the defendant’s] substantial rights; and (4) the error seriously affected the fairness,

3 Vandiver concedes he did not object on this ground, but argues for abuse-of-discretion review nonetheless because, he contends, making that objection during trial would have been futile given the district court’s subsequent resolution of his motion for a judgment of acquittal. He cites no caselaw for the proposition that a substantive Rule 29 motion retroactively preserves an evidentiary challenge, which would run counter to Federal Rule of Evidence 103(a)(1)’s requirement that a party “timely object[ ]” to the admission of evidence, with specificity, in order to preserve an issue for appeal. -20- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

integrity, or public reputation of the judicial proceedings.” United States v. Mayberry, 540 F.3d

506, 512 (6th Cir. 2008) (citation omitted).

Here, evidence of this charged predicate act was relevant to the RICO enterprise and its

violent proclivities. Having only generically identified a purported prejudicial effect and given

the applicable standard of review—viewing the evidence in light most favorable to the

government, maximizing its probative value and minimizing its prejudicial effect, United States v.

Zipkin, 729 F.2d 384, 389 (6th Cir. 1984), and only finding unfair prejudice if the evidence

“suggest[s] decision on an improper basis,” Mendez-Ortiz, 810 F.2d at 79—we discern no plain

error.

In 1995, the DDMC kicked out one of its Indiana members, William Bausch. And

consistent with the Club’s practice for handling members “in bad standing,” it took Bausch’s

motorcycle from him. Bausch stole it back. This prompted a visit from Larry Morgan, the warlord

of the Grand Rapids chapter. Morgan executed Bausch in front of Thomas Thacker, the Indiana

chapter’s warlord. Morgan then directed a recruit to drive Morgan and Thacker to a party. Along

the way, Morgan shot and killed Thacker. Why? Because “[t]hat son-of-a-b---h saw [him] kill”

Bausch. Morgan was subsequently convicted of both murders.

As part of its case-in-chief, the government sought to admit several autopsy pictures of

Bausch and Thacker. The district court concluded the pictures were admissible over defendants’

Rule 403 objections. In its view, the photographs supported the government’s theory that the

murders were “highly directed, assassination-type murders” and were “not highly inflammatory or

grisly as crime scene photographs go.”

-21- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Drozdowski contends the district court improperly weighed Rule 403’s prejudicial inquiry

when it commented that those who have “tried murder cases . . . [have] seen a great deal worse

than this.” We disagree. The pictures are not particularly gruesome, see, e.g., United States v.

Brady, 595 F.2d 359, 361 (6th Cir. 1979), and even if they were, “[e]vidence is not unfairly

prejudicial simply because it is gruesome or disturbing,” United States v. Boyd, 640 F.3d 657, 667–

68 (6th Cir. 2011) (collecting cases). They demonstrate a predicate racketeering activity that fits

within the modus operandi of the RICO enterprise—the Club used brutal violence (here executing

two individuals at close range) to show its exercise of control over members. Moreover,

Drozdowski offers no specific argument as to why these pictures would tend to suggest a decision

on an improper basis, other than arguing generically that bad pictures would make jurors think bad

things. For these reasons, the district court did not abuse its discretion in concluding that these

pictures were not so unfairly prejudicial to warrant exclusion.

In 2003, five members of the DDMC Tucson, Arizona chapter tortured a woman affiliated

with the Hells Angels Motorcycle Club. The president of the Hells Angels Arizona chapter

threatened reprisal, so an Arizona Diciple contacted Smith, who decided to “take care” of the rogue

DDMC members. Numerous DDMC members (including Witort) showed up at the Tucson

clubhouse and violently attacked the five perpetrators—they were restrained, tased, and beaten

with bats (and one had cigarettes put out on his face). The group then loaded the five into a pickup,

and individually dumped them in a remote desert area known as “Box Canyon.”

The government offered into evidence photographs of the five victims receiving medical

care, which showed the individuals with neck braces, supplemental oxygen, intubation tubes, black

eyes, blood, and scratches. After this incident, Smith called the attackers and congratulated them

-22- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

“on a job well done.” He also announced at a national DDMC meeting that this “Box Canyon

incident” occurred because the victims “did something that they shouldn’t have done to a Hells

Angels’ [woman].” And Smith was not the only one who spread the word to DDMC members

about the attack—a leader of the Alabama chapter sent an email to several DDMC members,

including defendant Rich, that detailed the attack and its aftermath. The email thanked those who

perpetrated the attack for the “good job,” and announced that the five victims were “out [of the

Club] for good.”

Vandiver contends the probative value of this evidence was substantially outweighed by

its danger of unfair prejudice because it “did nothing more than make the Defendants look like bad

men” and therefore should have been excluded under Federal Rule of Evidence 403. But as with

his argument concerning the Cadillac murder, he did not object on this ground below, so we again

review for plain error. Evans, 883 F.2d at 499. There was no error, plain or otherwise. Evidence

of the Box Canyon attack was relevant to a specific racketeering act charged in the indictment and

showed how the conspiracy furthered the criminal enterprise by committing violent acts to

maintain order, discipline, and standing both within the DDMC and in the eyes of others (like the

Hells Angels). This evidence was thus highly probative, and not unfairly prejudicial because the

brutal, violent acts perpetrated by the DDMC members were at the core of the Club’s modus

operandi.

Drozdowski similarly submits that the admission of the entire incident was unduly

prejudicial, arguing that it reflected a retributive act planned and perpetrated by the original

victim’s husband unrelated to the DDMC’s goals. Through this prism, he contends the district

court erred in admitting the evidence because “the jury was subjected to hours of testimony and

dozens of bloody photographs.” But other than generic assertions, he offers no argument as to

-23- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

why the introduction of the evidence regarding the incident (and not Drozdowski’s framing of it)

was so unfairly prejudicial under Rule 403. Accordingly, his appeal of this issue is forfeited. See,

e.g., United States v. Hendrickson, 822 F.3d 812, 829 n.10 (6th Cir. 2016) (repeating the oft-cited

proposition that it is not up to the court to put flesh on the bones of a skeletal argument). Nor does

he engage with the district court’s reasoning for admitting the evidence in the first place: “as a part

and parcel of the RICO activities of the entity” and because the pictures were “equivalent to

medical records” and not “inflammatory or gratuitous.” Failing to advance “any sort of argument

for the reversal of the district court[ ],” Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007), or

“cogent” the-district-court-got-it-wrong analysis, “constitutes abandonment,” Burley v. Gagacki,

834 F.3d 606, 618 (6th Cir. 2016). This notwithstanding, we see no reason to disturb the district

court’s admission of this evidence given its highly probative and minimally prejudicial value.

Defendants next challenge the district court’s admission of evidence under Federal Rule of

Evidence 801(d)(2)(E)’s exclusion from hearsay of a “statement . . . offered against an opposing

party . . . [that] was made by the party’s coconspirator during and in furtherance of the conspiracy.”

To fall within this exception, the government must demonstrate by a preponderance of the evidence

that the co-conspirator’s statement was made in furtherance of the conspiracy, United States v.

Bailey, 973 F.3d 548, 560–61 (6th Cir. 2020), which “turns on the context in which it was made

and the intent of the declarant in making it,” United States v. Warman, 578 F.3d 320, 338 (6th Cir.

2009). This is a question of fact, and we review the district court’s determination that the

government has met this standard (which is sometimes referred to as “an Enright finding,” see

United States v. Enright, 579 F.2d 980, 986–87 (6th Cir. 1978)) for clear error. Warman, 578 F.3d

-24- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

at 335. But the decision to admit the evidence under 801(d)(2)(E) is still reviewed for abuse of

discretion. United States v. Kone, 307 F.3d 430, 440 (6th Cir. 2002).

Before trial, defendants moved to require the government produce a written proffer setting

forth the basis for admission of co-conspirator statements and for the district court to, consistent

with our decision in United States v. Vinson, 606 F.2d 149, 152 (6th Cir. 1979), conduct a “mini-

hearing” on each statement and determine its admissibility. The district court denied the motion

and instead opted for a different option also approved by Vinson—it conditionally admitted the

statements, granted a standing objection to their admission, and then concluded it would revisit the

decision at the end of the government’s case-in-chief. See id. at 153. After the close of the

government’s proofs, defendants moved for a mistrial based on their claim that the government

did not meet its burden for the admission of the 170 specific statements. The district court denied

the motion on the grounds that the statements were either not hearsay or properly admitted under

801(d)(2)(E). Defendants raise three issues with this conclusion on appeal.

First, Smith lodges a procedural challenge to the district court’s Enright findings. He

broadly asserts that the district court’s lengthy findings were not specific enough, incorporates by

reference the 170 statements the defendants identified below, and says the district court erred

because it did not “address[] the specific statements objected to.” Other than this, Smith does not

set forth any argument as to why any or each of those statements were improperly admitted.4 We

can make quick work of Smith’s argument.

4 In reply, Smith advances a new argument—that the hearsay statements regarding the Indiana and Cadillac murders were inadmissible because there was no conspiracy involving the tried defendants at the time of those murders. We typically do not entertain arguments raised for

-25- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

We prefer that district courts make “specific Enright findings,” and have reversed district

courts when their findings are either “nonexistent or completely conclusory.” United States v.

Martinez, 430 F.3d 317, 328 (6th Cir. 2005) (collecting cases). But we have also found conclusory

findings to be satisfactory and that “no specific findings [are] required where the conspiracy

alleged involved many acts and people, and [when we are] able to say with confidence that the

government met its burden.” United States v. Moss, 9 F.3d 543, 549 (6th Cir. 1993) (citation

omitted). We also do not “mandate[] a particular degree of specificity with respect to the Enright

findings.” Kone, 307 F.3d at 441. And we have historically condoned broad, sweeping findings

by a district court in the face of a defendant’s challenge that the district court needed to say more

with respect to its factual findings. United States v. Maliszewski, 161 F.3d 992, 1007 (6th Cir.

1998). For example, we approved in Maliszewski this finding by the district court as adequate:

I find in the first place the evidence overwhelmingly shows the existence of conspirators here. The evidence overwhelmingly supports the maker of these various statements produced through the course of this trial as being a member of the conspiracy. The statements in each respect were made during the course of or in furtherance of a conspiracy and all of this I find by a preponderance of the evidence or more. Each of these statements is permitted because it is not hearsay under 801(d)(2)(E).

Id. (ellipsis omitted).

Here the district court’s Enright findings went far beyond those condemned as “nonexistent

or completely conclusory.” Martinez, 430 F.3d at 328. Sure, it did not walk through each of the

170 statements line by line, but we do not require a district court to provide a detailed explanation

of its evidentiary rulings. United States v. Curro, 847 F.2d 325, 329 (6th Cir. 1988). We have

the first time in reply, see United States v. Galaviz, 645 F.3d 347, 362 (6th Cir. 2011), and see no reason to do so today. Moreover, for reasons expressed elsewhere in this opinion, the substantive no-conspiracy argument is without merit. -26- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

also, and repeatedly, held that a “party is not allowed to incorporate by reference into its appellate

brief the documents and pleadings filed in the district court.” Thomas M. Cooley Law Sch. v. Am.

Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006). This is exactly what Smith has done here, telling us

that we should go looking below for the specific statements to which he objects. That “does not

comply with the Federal Rules of Appellate Procedure.” Northland Ins. Co. v. Stewart Title Guar.

Co., 327 F.3d 448, 452 (6th Cir. 2003); see also Fed. R. App. P. 28(a)(8). And regardless, the

district court’s findings here were much more specific than the conclusory finding we condoned

in Maliszewski. Smith’s position on appeal is without merit.

McKeoun takes a more substantive approach and argues the district court impermissibly

admitted hearsay testimony regarding Bartell’s murder of Isler in Cadillac. Testimonial evidence

relating to that murder came by way of DDMC member Mike Mastromatteo. He testified that he

“heard” about the murder and the members’ subsequent attempted coverup of it “through brothers

. . . in the Devils Diciples,” including from his friend “Batman.” McKeoun contends this testimony

should not have been admitted because the government did not offer any proof as to when the

hearsay statements were made, the context in which they were made, and how they furthered the

conspiracy. Thus, he claims, the statements were just mere “idle chatter” and therefore were

inadmissible. We disagree.

We have held that “mere ‘idle chatter or casual conversation about past events’ is not

considered a statement ‘in furtherance of the conspiracy.’” United States v. Darwich, 337 F.3d

645, 657 (6th Cir. 2003) (citation omitted). And we have made sure to emphasize that “out-of-

court statements made after the conclusion of the conspiracy are not made ‘in furtherance of the

conspiracy’” and thus found error when the record does not demonstrate a statement’s context or

-27- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

timing for purposes of determining whether it qualifies under Rule 801(d)(e)(E). See United States

v. Conrad, 507 F.3d 424, 430 (6th Cir. 2007). But as the district court concluded and government

ably demonstrates on appeal, that is not what we have here. Bartell’s murder of Isler in Cadillac

fits squarely within the enterprise’s take-care-of-our-own and violence-as-a-means-to-the-ends

approach. Moreover, testimony about the murder and club members’ subsequent attempted

coverup cannot be cast aside as “idle chatter or casual conversation about past events,” Warman,

578 F.3d at 338 (citation omitted)—at a minimum, it identified participants and their conspiratorial

roles, Bailey, 973 F.3d at 561, and displayed the Club’s efforts to avoid law enforcement.

Finally, Rich challenges the district court’s admission under 801(d)(2)(E) of the email that

an Alabama club leader sent following the Box Canyon incident. He too picks up on our idle-

chatter caselaw and says that the email was just a narrative rehashing of a past event and thus did

not further the conspiracy. See Darwich, 337 F.3d at 657. But as the district court recognized,

this email did not just convey historical fact—it can be rationally read to identify those who

participated in the assault and to warn others that taking actions inconsistent with the Club’s rules

and objectives would lead to swift and violent punishment. And this is of a piece with other

statements we have found to satisfy Rule 801(d)(2)(E), such as the identification of other co-

conspirators and their roles, Bailey, 973 F.3d at 561, keeping co-conspirators “abreast of a co-

conspirator’s activities,” United States v. Franklin, 415 F.3d 537, 552 (6th Cir. 2005) (citation

omitted), or promoting the conspiracy’s objectives, Warman, 578 F.3d at 338.

The next evidentiary issue concerns Special Agent Fleming. He is the FBI case agent who

oversaw the government’s investigation of the DDMC (and his affidavit supported the Title III

-28- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

wiretaps discussed above). Fleming testified several times during the trials about those recordings

under Federal Rule of Evidence 701, which allows certain opinion testimony by a lay witness.

Relying on United States v. Freeman, 730 F.3d 590 (6th Cir. 2013), defendants contend the district

court abused its discretion by admitting his opinion testimony without a proper foundation.

Only a few interpretations of the numerous recordings that Fleming testified about are at

issue here. First, Fleming testified regarding controlled buys made by a cooperating witness, John

Pizzuti, and recordings captured via wiretaps on DDMC member’s Vern Rich’s telephone. After

Pizzuti testified about purchasing methamphetamine from DDMC members, including from Vern

Rich and Vandiver, Fleming testified about some of those recordings around the controlled buys.

The prosecutor had this exchange with Fleming after playing those recordings to the jury:

Q. Based upon the context of the call, as well as the investigation that was going on at that time, what did you understand Mr. Rich to be referring to when he said, “it’s here now”?

A. In my opinion, Mr. Rich is telling Mr. Pizzuti that he got a new shipment of methamphetamine that he has, and is willing to sell it.

The government then played a call from Rich to another DDMC member, John Riede, which

Fleming interpreted as “Mr. Rich is telling Mr. Riede that he’s trying to make a sale of

methamphetamine and that he wants to get the money to Mr. Riede before he leaves.” Several

days later, Riede called Rich, and Fleming offered his interpretation of this call to the jury:

A. Mr. Rich is telling Mr. Riede that he’s got a lot of money. When he uses the term, he wants to get this out of his pocket, he’s got a lot of money that he wants to get to Mr. Riede. And in the same token, when he says he probably wants to do that, do that again, meaning he needs to refresh his supply of methamphetamine that he can get from Mr. Riede.

So he can kill two birds with one stone. If they meet, he can give him the money that he’s got that he owes Mr. Riede for methamphetamine. In return,

-29- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Mr. Riede can give him additional methamphetamine. Mr. Riede says, “things are real right,” meaning he’s fresh with methamphetamine and they can kill two birds with one stone.

Q. And is that your opinion, based upon your investigation in this case, and your review of all of the calls in this case?

A. Based upon that and my experience working drug investigations, yes.

No defendant objected contemporaneously to this testimony. But after recess, defendants objected

“to the continued testimony of Officer Fleming as it relates to his giving his opinion after

interpreting the phone calls.” The district court denied the motion but admonished the government

to “do its level best to lay an appropriate foundation” and said it would consider future Freeman

objections on an as-objected-to basis.

The only other testimony defendants point to came after this oral ruling. The government

elicited testimony from Jaime Franks, a methamphetamine cook for the DDMC. She testified

about how she made methamphetamine with Vandiver (including how they sourced

pseudoephedrine) and that the pair was arrested for possessing methamphetamine following a

cook. The government then put Fleming on the stand to testify about wire intercepts relating to

Franks and suggested (over defendants’ objections) that the call was “related to the manufacturing

of methamphetamine involving Mr. Vandiver and Mr. [McKeoun].”

Federal Rule of Evidence 701 provides that a lay witness may offer opinion testimony

provided it is: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical,

or other specialized knowledge within the scope of Rule 702.” We permit such opinion testimony

“because it has the effect of describing something that the jurors could not otherwise experience

-30- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

for themselves by drawing upon the witness’s sensory and experiential observations that were

made as a first-hand witness to a particular event.” Freeman, 730 F.3d at 595 (citation omitted).

We have both condoned and condemned law enforcement officials’ opinion testimony

regarding intercepted communications. On the one hand, “there is a risk when an agent provides

interpretations of recorded conversations based on his knowledge of the entire investigation that

he is testifying based upon information not before the jury, including hearsay, or at the least, that

the jury could think he has knowledge beyond what is before them.” Id. at 596 (internal quotation

marks, brackets and ellipsis omitted). But on the other hand, an agent’s opinion can aid the jury:

“an investigator who has accumulated months or even years of experience with the events, places,

and individuals involved in an investigation necessarily draws on that knowledge when testifying;

indeed, it is those out-of-court experiences that make the witness’s testimony helpful to the jury.”

United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) (citation omitted).

Freeman is the exemplar of when the risks have been realized. There, an agent provided

“his personal impressions” of numerous phone calls in a murder-for-hire case. 730 F.3d at 594.

We found foundational fault with his testimony because he “repeatedly substantiated his responses

and inferences with generic information and references to the investigation as a whole” without

“specif[ing] personal experiences that led him to obtain his information but, instead, repeatedly

relied on the general knowledge of the FBI and the investigation as a whole.” Id. at 596. And we

also pointed out that the agent did not testify about being present for the surveillance yet implied

to the jury that he was “better situated to interpret the words used in the calls than they were”

because he had listened to “all of the calls.” Id. at 597. So, we concluded, the agent “failed to

explain the basis of his interpretations—what experience he had that the jurors themselves did not

have—and therefore failed to lay a foundation under Rule 701.” Id.

-31- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Kilpatrick is on the other end of the spectrum. The agents there extensively testified about

the meaning of text messages in a public-corruption case involving the former Mayor of Detroit

and a city contractor. 798 F.3d at 377–78. We rejected the defendants’ analogy to Freeman and

concluded the district court there did not abuse its discretion in admitting the testimony under Rule

701 for many reasons, including that the government laid the proper foundation for those agents’

testimony:

They did not merely cite to the collective knowledge of their respective agencies as the source of their information. Each agent testified on multiple occasions concerning his or her years-long personal involvement in the case, including interviewing dozens of witnesses, reading scores of relevant documents and thousands of text messages, and listening to recorded phone calls.

Id. at 381.

This case is not, as defendants suggest, Freeman revisited. Indeed, the district court’s

comprehensive opinion more than adequately details why Agent Fleming’s testimony did not run

afoul of Rule 701 and we adopt it as our own. See United States v. Sutherland, 2014 WL 7338724,

at*2–3 (E.D. Mich. Dec. 22, 2014). Defendants’ arguments on appeal do nothing to alter the

district court’s persuasive analysis, so we dispense with them in a conclusory fashion.

Witort says, based on the excerpted call between Rich and Pizzuti, that Fleming’s

testimony was improper because he “clearly state[d] that his interpretations were based on the

entire investigation in this case” and because he did not participate in the calls or observe the

relevant conduct. But because this testimony went unobjected to (it was before defendants filed

their motion), we review here for plain error. And given Fleming’s extensive involvement in the

investigation—which was thoroughly detailed by the district court—Freeman’s investigation-as-

a-whole concern does not arise.

-32- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

McKeoun takes issue with Fleming’s testimony concerning Vandiver, McKeoun, and

Franks. Given that defendants lodged a proper objection, our review of this statement is for abuse

of discretion. McKeoun’s argument is conclusory. Other than detailing the call and criticizing

Fleming’s interpretation of it (about which he was able to cross-examine Fleming), McKeoun does

not say why Fleming lacked foundation to say he believed the call was related to the manufacture

of methamphetamine. Instead, he lays the blame at the district court’s explanation for why it

satisfied the foundational element. But as set forth above and in the district court’s opinion, Special

Agent Fleming plainly had first-hand knowledge of the investigation and the wire-intercepts at

issue. The district court correctly concluded the risks identified in Freeman played no role here.

That leaves us with Vandiver’s undeveloped argument that Fleming’s lengthy tenure with

the investigation did not establish sufficient foundation. Having offered no specific criticism of

the district court’s reasoning or identified any specific instances of objectionable testimony on

appeal, we deem his argument forfeited. Hendrickson, 822 F.3d at 829 n.10.

Drozdowski takes issue with the admission of a photograph of him brandishing two

handguns, which the district court found relevant to the DDMC’s violent proclivities and not

unduly prejudicial. He ties his argument not to its admission per se, but rather to how the

government used that gun-possession evidence in its closing argument; it tied that picture to his

charge of being a felon in possession of ammunition. Drozdowski’s challenge here conflates

whether the district court properly admitted the evidence with whether the prosecutor engaged in

misconduct by making a statement not “based on the evidence in the record.” United States v.

Davis, 514 F.3d 596, 613 (6th Cir. 2008) (citation omitted). In any event, the firearm picture was

plainly relevant for the reasons set forth by the district court, and the district court did not abuse

-33- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

its discretion in finding that its relevance was not substantially outweighed by its prejudicial

impact. And to the extent the prosecutor committed misconduct by tying his possession of the

firearms to his ammunition charge, as discussed below in examining his sufficiency-of-the-

evidence argument, the evidence supporting his felon-in-possession-of-ammunition charge was

overwhelming so the firearm picture could not have “substantially swayed” the jury’s verdict.

United States v. Hardy, 228 F.3d 745, 751 (6th Cir. 2000).

5.

The next evidentiary issue stems from Special Agent Fleming testifying that, during a

search of former DDMC national vice president Ken Roll’s house, the government found the

results of a polygraph administered by the FBI on a former DDMC member. The actual polygraph

was not admitted into evidence. Witort contends that the reference to the polygraph denied him a

fair trial because polygraph evidence is generally inadmissible. The problem with his argument,

as the government notes, is that our polygraph caselaw focuses on the reliability issues surrounding

the results of polygraphs, see Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir. 1987), and not on

whether one was administered, see United States v. Weiner, 988 F.2d 629, 633 (6th Cir. 1993).

Here, the government introduced evidence only that a DDMC member had in his possession a

polygraph exam of another DDMC member. Because it did not introduce the results of that exam,

this issue is meritless.

6.

Defendants’ last evidentiary challenges relate to limits imposed by the district court during

cross-examination.

The Sixth Amendment guarantees the right of a criminal defendant in a state or federal

prosecution “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also

-34- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Crawford v. Washington, 541 U.S. 36, 42 (2004). Cross-examination is a “primary interest”

secured by the Confrontation Clause and “the principal means by which the believability of a

witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974)

(citation omitted). A criminal defendant’s confrontation rights are not limitless, however. “[T]rial

judges [may] . . . impose reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

Where “it is merely the extent of cross-examination that is limited,” the Confrontation

Clause question is “whether the jury had enough information, despite the limits placed on

otherwise permitted cross-examination, to assess the defense theory.” Stewart v. Wolfenbarger,

468 F.3d 338, 347 (6th Cir. 2006) (citation omitted). Under this standard, it is only when “the

defense is not allowed to plac[e] before the jury facts from which bias, prejudice or lack of

credibility of a prosecution witness might be inferred,” Dorsey v. Parke, 872 F.2d 163, 167 (6th

Cir. 1989) (first alteration in original) (citation omitted), that “there is indeed a denial or significant

diminution of cross-examination that implicates the Confrontation Clause,” Boggs v. Collins, 226

F.3d 728, 739 (6th Cir. 2000). We review a claim that the admission of evidence violates the

Confrontation Clause de novo. Mayberry, 540 F.3d at 515.

In 2000, southeast Michigan law enforcement agencies formed a task force to investigate

a murder. Special Agent Fleming was part of that task force and took part in interviews of two

teenage suspects, Jonathan Kaled and Frank Kuecken. Those two falsely confessed to the murder.

After exoneration, they filed a civil-rights complaint against numerous defendants involved in their

prosecution (but not Fleming). See Daniels v. City of New Baltimore, No. 01-cv-73902 (E.D.

-35- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Mich. 2003). As pertinent here, the district court in that litigation denied qualified immunity to

the individual defendants on the plaintiffs’ 42 U.S.C. § 1983 claims. Although Fleming was not a

party, defendants suggest the Daniels district court viewed him as an “unindicted co-conspirator”

because of the following line from its summary-judgment opinion: “The Court disagrees with

Defendants Bugbee and Horton, and finds that there is sufficient circumstantial evidence to allow

a jury to find that Defendants Bugbee and Horton conspired with the other Defendants to violate

Plaintiff Kaled’s and Plaintiff Kuecken’s constitutional rights.” (Emphasis added). That same

paragraph discussed the roles of other defendants:

[A] jury could find that Defendants Esser and Borowicz told Plaintiff Kaled which facts to confess, and that Defendants Bugbee and Horton gave Plaintiff Kuecken the facts that he should confess. Moreover, given the undisputed high-profile nature of this murder, the jury could reasonably infer that the task force would have [had] a motive to conspire; the jury could find that the task force was under public pressure to find someone—anyone—to blame for this murder, and that these Plaintiffs seemed like good people to blame.

Defendants here sought to question Fleming about his role in allegedly assisting in

procuring the false confessions, asserting it went to “his credibility for truthfulness and how he

went about [the DDMC] investigation [was] at issue.” The district court limited questioning to

Fleming’s general investigative methods but ruled inadmissible specific questions concerning his

role in interrogating Kaled and Kuecken. Rich claims this was error requiring reversal, arguing

that the record supports Fleming’s conduct in the Kaled/Kuecken matter “was neither honorable,

faithful to the Constitution or any genuine truth seeking effort” and thus defendants should have

been able to cross-examine him about that matter to undermine his credibility. We find no

violation of the Confrontation Clause.

The discretion district courts possess to reasonably limit cross-examination on prejudicial

topics of marginal relevance that could mislead the jury is great. Van Arsdall, 475 U.S. at 679.

-36- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Here, the district court gave defendants the opportunity to extensively cross-examine Fleming’s

interrogation techniques in this case. How Fleming allegedly conducted an interrogation of two

individuals fifteen years prior is irrelevant, especially given the lack of claims of false confessions

or facts concerning impermissible interrogation tactics here. And despite the assertion to the

contrary, there is no record evidence establishing Fleming conspired with the other defendants in

the Daniels case, as that opinion limits that claim to defendants in that case (in which Fleming was

not a party). Therefore, the jury “had enough information, despite the limits placed on otherwise

permitted cross-examination, to assess the defense theory” that Fleming was not credible. Stewart,

468 F.3d at 347 (citation omitted).

Ronald Roberts was a DDMC member. He played a pivotal role in the Club’s

manufacturing and distribution of methamphetamine. He was also involved in several physical

altercations and the theft of motorcycles. During defendants’ cross-examination of Roberts,

Drozdowski’s counsel sought testimony regarding Roberts’ purported role in a 2001 assault and

murder, claiming it would impeach Roberts’ credibility. But following the government’s objection

that it was improper impeachment evidence under Federal Rule of Evidence 609, Drozdowski’s

attorney withdrew his argument and offered the court an alternative:

Let me file the reports [that purportedly substantiated the allegation] . . . and let the Court know exactly how this ties in, whether we should get into it. And we can always have him called back. . . . And we can always have him called back later, if the Court deems that I can go into this topic.

The district court agreed and confirmed it would provisionally sustain the objection as irrelevant

and inadmissible under Rule 609. Neither Drozdowski’s lawyer, nor any other defense attorney,

provided the district court with the records or sought to recall Roberts during the trial. But eight

-37- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

months after the jury issued its verdicts, Drozdowski’s lawyer filed the records “[i]n order to

complete the record, and negate the Government’s implication that counsel did not have a good-

faith basis on which to question Ronald Roberts regarding his participation in a 2001 murder.”

Defendants Rich and Drozdowski contend the district court’s limitation on the cross-

examination of Ronald Roberts infringed upon their Sixth Amendment right to confrontation.

However, the district court did not err, plain or otherwise. “Trial judges retain great discretion to

impose reasonable limits on the cross-examination of witnesses based on concerns such as

harassment, prejudice, confusion of the issues, the witness’s safety, and marginal relevancy.”

United States v. Davis, 430 F.3d 345, 360 (6th Cir. 2005) (citation omitted). And this includes

when a district court limits cross-examination in some respects while permitting defense counsel

to explore “other benefits [a witness] was receiving from the government in order to highlight [the

witness]’s bias in favor of the government.” Id. at 361 n.5. The district court here made specific

findings as to why it was not going to let defendants explore this topic—it was irrelevant with

respect to Roberts’ credibility and inadmissible under Federal Rule of Evidence 609 because there

was no substantiation of a murder conviction. And its irrelevance finding—that it was a stale and

unsupported assertion—is certainly supported under an abuse-of-discretion review, let alone plain

error (given defendants did not renew their objection or file the reports until eight months after the

trial ended). Moreover, defendants were given multiple avenues to attack Roberts’ credibility,

including by examining his history of lying to the FBI and the details of his cooperation agreement.

Id. This claim is meritless.

Anthony Clark was a member of another motorcycle gang, the Highwaymen. He provided

extensive testimony about his dealings with the DDMC, which involved its distribution of

-38- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

methamphetamine. But before providing this testimony, he told the jury of his RICO conspiracy

conviction for his role as the national president of the Highwaymen. He was sentenced to 292

months in prison, but we vacated that sentence because it exceeded the statutory maximum, absent

special findings by the jury. See United States v. Nagi, 541 F. App’x 556, 576–77 (6th Cir. 2013).

While awaiting resentencing, the government approached Clark and asked him to cooperate in this

case in exchange for the possibility of the government filing a motion for a reduced sentence under

Federal Rule of Criminal Procedure 35. The terms of his cooperation agreement referenced a

separate and ongoing investigation into the murder of Lon Butler (to which Clark was apparently

connected), but “acknowledge[d that] there are no promises or other agreements regarding the

disposition of that matter by the United States Attorney’s Office.” Over defendants’ objection, the

district court prohibited cross-examination that specifically referenced the alleged “homicide,

murder, death, killing, assault, and the like,” and instead allowed only questions about whether

Clark was a person of interest in a “very serious criminal offense.”

As they did with their arguments concerning the scope of cross-examination of Ronald

Roberts, Rich and Drozdowski argue the district court’s limitation here was an abuse of discretion

because the introduction of the alleged murder would have shined light on his motive to testify—

i.e., he was testifying for the possibility of avoiding a murder charge. We again disagree. The

district court had wide latitude when imposing cross-examination limits, Davis, 430 F.3d at 360,

and as above, the jury heard many reasons why Clark could have been motivated to give

incriminating testimony against the DDMC, including that he was under investigation for other

suspected criminal activity. The district court was well within its discretion to limit the inquiry.

-39- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Defendants raise a host of sufficiency-of-the evidence challenges. A defendant claiming

insufficient evidence to support a conviction “faces a high bar” on appeal. United States v.

Persaud, 866 F.3d 371, 379–80 (6th Cir. 2017). This is because we must uphold a jury’s

conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will sustain a conviction based on

circumstantial evidence alone, and the evidence need not disprove every hypothesis except that of

guilt. United States v. Lindo, 18 F.3d 353, 357 (6th Cir. 1994). When we consider a sufficiency

claim, we do not “weigh the evidence presented, consider the credibility of witnesses, or substitute

our judgment for that of the jury.” United States v. Jackson, 470 F.3d 299, 309 (6th Cir. 2006)

(citation omitted). Rather, we “draw all available inferences and resolve all issues of credibility

in favor of the jury’s verdict.” Id. (citation omitted).

The substantive RICO offense makes it “unlawful for any person employed by or

associated with any enterprise engaged in, or the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C.

§ 1962(c). And under § 1962(d), it is unlawful “for any person to conspire to violate” § 1962(c).

As examined further with respect to defendants’ jury-instruction challenges, the elements of these

two crimes are different: “Unlike 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). Instead, the government need only establish a defendant “intended to

-40- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

further ‘an endeavor which, if completed, would satisfy all of the elements of a substantive

criminal offense and it suffices that he adopt the goal of furthering or facilitating the criminal

endeavor.’” United States v. Saadey, 393 F.3d 669, 676 (6th Cir. 2005) (brackets omitted) (quoting

Salinas v. United States, 522 U.S. 52, 65 (1997)). Defendants raise multiple arguments regarding

the evidence supporting their RICO conspiracy convictions (Count 1).

RICO defines “enterprise” to include “any individual, partnership, corporation,

association, or other legal entity, and any union or group of individuals associated in fact although

not a legal entity.” § 1961(4). The Supreme Court has opined that an “enterprise is an entity, for

present purposes a group of persons associated together for a common purpose of engaging in a

course of conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981). Put differently, “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.” Boyle v. United States, 556 U.S. 938, 946 (2009). But it need

not be rigidly structured in order to qualify given “[t]he breadth of the ‘enterprise’ concept in

RICO.” Id. at 949. So, to establish the existence of such an associated-in-fact enterprise, the

government must only prove “an ongoing organization, formal or informal” and that “various

associates function as a continuing unit” “for a common purpose.” Turkette, 452 U.S. at 583.

Defendants challenge the existence of an enterprise, contending that individual DDMC

members were engaged in illegal activities for their own interests and thus did not rise to the level

of a “continuing unit.” Darrah provides a useful analogy to sum up defendants’ view of the

evidence: “[E]veryone who engaged in the illegal activities alleged, engaged as independent

contractors, not as a continuing unit.”

-41- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

The district court extensively discussed the evidence supporting the jury’s enterprise

finding when it denied defendants’ motions for judgment of acquittal, focusing on the DDMC’s

top-down governance, use and distribution of methamphetamine, and frequency of gambling

activities, theft, and violence. This reasoning is well supported by the record. Consider the

government’s expansive evidence concerning the Club’s hierarchical approach to manufacturing

and distributing methamphetamine. Numerous members testified about how they had to pay

“taxes” up the chain to Club leadership and that Darrah was especially active in collecting these

“taxes.”5 William Smith’s testimony is but one example of this. He testified about having to “kick

up” money to Ken Roll (then the DDMC National Vice-President) and ultimately to Jeff Smith

based on his entire drug business, even the portion that he established before he joined the DDMC.

He explained:

He would tell me on numerous occasions, he was like, “Hey, you’re going to have to start kicking before they start making you kick.”

I was like, “What do you mean kick? I had this way before that.” They are like, “It don’t matter. You’re a Devil Diciple. By being that, if you don’t start kicking, you’re going to get taxed. And when you get taxed, it’s going to be a whole lot more than you think it is.”

He estimated he “kicked in” over $50,000 during his time.

The jury also heard many witnesses testify about how they manufactured, obtained, and

distributed large quantities of methamphetamine, and how each of the defendants here played a

role in those processes. For example, one of the Club’s leaders of the Mount Clemens chapter,

Mike Mastromatteo, was a large-scale methamphetamine dealer. Vandiver and a “boss” of the

Alabama chapter attempted to shut down Mastromatteo’s operation, telling him “[y]ou’re not

5 The taxes were not limited to drug sales, and also applied to the chapters’ gambling operations. -42- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

dealing dope here anymore unless you go through us.” Mastromatteo sought help from McKeoun,

who vouched for him to Smith because Mastromatteo was “doing what [he was] supposed to” by

providing drugs for parties and cash to members when needed. Or consider testimony from John

Riede, who had to seek Smith’s approval to purchase methamphetamine from Witort, and who

told the jury that McKeoun wired money for that purchase. These are just two examples of the

many ways the methamphetamine flowed in and out of the DDMC.

And that is just the drugs. The government also presented significant testimony regarding

the DDMC’s violent proclivities, spanning from its “black eye” policy to violent confrontations

with former members and customers (including the Cadillac and Indiana murders and the Box

Canyon incident) and even those thought to be rivals (Drozdowski’s attack on a civilian, discussed

below). The government also provided evidence of the DDMC’s efforts to stifle collaboration

with law enforcement through its “no snitching” policy and its proactive attempts to obtain

information related to law enforcement’s investigations. And as set forth in more detail below,

the government entered into evidence the Club’s illegal gambling activities.

Defendants’ arguments on appeal are not persuasive, especially given the “high bar” they

face. See Persaud, 866 F.3d at 379–80. Although they all pick at individual statements made by

individual witnesses that they say establish nothing more than people making and dealing drugs

independently and gathering for other own reasons, none engage with the evidence set forth above.

In sum, sufficient evidence supports the jury’s conclusion that an enterprise existed.

Drozdowski and Witort challenge the sufficiency of the evidence supporting the

association-with-the-enterprise element of their RICO conspiracy conviction. “The concept of

‘association’ requires both interpersonal relationships and a common interest.” Boyle, 556 U.S. at

-43- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

946 (brackets and citations omitted). We read this requirement, as with RICO’s other terms,

broadly. Id. at 944. So, we focus not on whether “each conspirator . . . participate[d] in every

phase of the criminal venture,” but rather on whether each conspirator gave “assent to contribute

to a common enterprise.” United States v. Gardiner, 463 F.3d 445, 457 (6th Cir. 2006) (citation

omitted). And, as relevant here, we have found that a formal leadership role in an enterprise “more

than satisfies RICO’s loose association requirement.” United States v. Nicholson, 716 F. App’x

400, 406 (6th Cir. 2017) (collecting cases).

The district court concluded Witort’s association with the enterprise was well established,

especially given he “was a member of the DDMC for more than 30 years and was president of the

California chapter.” As for Drozdowski, it concluded that the “[e]vidence at trial well supported

the jury’s conclusion that . . . Drozdowski w[as] associated with the DDMC enterprise” because

he “became a patched member in 2010, in the Blue Water Chapter.” These conclusions are well

supported.

Witort argues that because he did not hold a formal leadership role within the DDMC, the

government did not demonstrate he associated with it. But that reading conflicts with the Supreme

Court’s directive that we broadly interpret “association.” Boyle, 556 U.S. at 944, 946. The jury

heard testimony from other members that Witort “was a man with a lot of respect” within the Club;

one who “ha[d] a lot of pull in the Devils Diciples,” and was “the boss” of its California chapter.

This testimony, along with the extensive testimony linking Witort to the Club’s methamphetamine

operation and the Box Canyon incident, supports the jury’s associational finding for Witort.

Drozdowski makes a different argument, painting himself as a deadbeat DDMC member

who just happened to “share” his methamphetamine at the Club’s parties. But this self-portrait

does not take the facts in the light most favorable to the jury’s verdict. He was a patched DDMC

-44- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

member, was viewed as “the next generation of Devils Diciples,” and even had the Club’s motto

tattooed on his knuckles. He possessed various DDMC items, including a document listing DDMC

“down brothers” (those in prison) and the bylaws of the Blue Water chapter, which listed him as

“No. 3, . . . warlord.” This, along with the evidence supporting his participation in the cooking

and distribution of methamphetamine (and the attack on Robert McClure discussed below), amply

supports the jury’s finding here.

McKeoun challenges the government’s proof establishing a “pattern of racketeering

activity.”6 A RICO conspiracy conviction requires the government to prove a “pattern of

racketeering activity”—two predicate acts occurring within ten years of each other. §§ 1961(5),

1962(c). As pertinent here, “[t]he government [is] charged with proving that the predicate acts in

connection with the conspiracy were related to its illegal purposes, and that these acts constitute a

threat of ongoing criminal activity.” Corrado, 227 F.3d at 554. Yet, RICO’s pattern requirement

is not defendant specific; the government “does not need to prove that the defendant committed or

agreed to commit two predicate acts himself, or even that any overt acts have been committed.”

Saadey, 393 F.3d at 676. Put differently, “conspirators are liable for the acts of their co-

conspirators” “so long as they share a common purpose.” Salinas, 522 U.S. at 64. Thus, to

demonstrate the pattern requirement for an individual defendant, all that is required is proof that

“[a] conspirator must intend to further an endeavor which, if completed, would satisfy all of the

6 Witort’s brief raises this issue in name only. He nominally contends that there was insufficient evidence as to the pattern element by repeating that the DDMC “was nothing more than various groups of men who were acting independent of one another” argument raised as it relates to the existence of an enterprise. Having failed to specifically challenge the predicate acts at issue, he has forfeited any review of this issue. Hendrickson, 822 F.3d at 829 n.10. -45- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

elements of a substantive criminal offense [and] it suffices that he adopt the goal of furthering or

facilitating the criminal endeavor.” Id. at 65.

On appeal, McKeoun contends the government did not prove that he “conspired and agreed

to . . . the murders in Michigan and Indiana.” In his words, “[t]here was no testimony that

McKeoun had anything to do with those murders or that McKeoun even knew about them.” But

that wholly misses the point of conspirator liability under RICO. It was sufficient to prove that

McKeoun agreed to join the DDMC enterprise and agreed that a conspirator would commit two or

more acts of the types of racketeering activity alleged. United States v. Rios, 830 F.3d 403, 434–

35 (6th Cir. 2016). And the district court capably explained the link between McKeoun and the

murders:

The Government also presented evidence that DDMC members who left the organization in bad standing were often required to surrender their motorcycles to the club or have their property taken by force. When member Jeff Arnold left the group, McKeoun, Vandiver, and other DDMC members took Arnold’s motorcycle. The Government offered evidence that, after leaving the club, Thomas Thacker was murdered by fellow DDMC members, and thereafter one of those murderers, William Bausch, was himself killed. The Government provided evidence showing that McKeoun, as well as other patched members of the DDMC, knew that the enterprise robbed and murdered members who refused to surrender their property after leaving the organization.

(Record citations omitted). In addition, as the district court also explained, McKeoun’s active role

in the DDMC and his meth distribution and manufacturing activity alone were sufficient to show

McKeoun’s agreement to join a conspiracy that involved a pattern of racketeering activity.

d.

Rich and Drozdowski next challenge the jury’s drug-quantity findings pursuant to

Apprendi v. New Jersey, 530 U.S. 466 (2000).

-46- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

The jury found Rich “agree[d] that at least 50 grams of Methamphetamine (or 500 grams

or more of a mixture of a substance containing a detectable amount of Methamphetamine) was or

would be involved in the conspiracy.” Rich argues that the evidence does not support that finding

(and it is worth noting he was not charged with conspiracy to manufacture, distribute, or possess

with intent to distribute methamphetamine like the other defendants). But we, like the district

court, disagree. Jeffrey Armstrong testified that he “fronted” “eight-ball amount[s]” of

methamphetamine to Rich, which Rich would then turn around and sell. This occurred maybe

“two or three times.” Rich focuses on this testimony and says this “small amount”—three-eighths

of an ounce equates to just over 10 grams— “fails to come close to any necessary threshold amount

to support the jury[’s] finding.” But that is not all the jury was presented. They heard testimony

that Rich was present when Darrah and his wife showed up at the Port Huron clubhouse with a

“gallon-size bag” of methamphetamine, which was sampled by those present (with Rich’s

permission) and then sold. And more generally, they heard about the Club’s extensive

methamphetamine network, with Rich being a member of the Club since the 1980s. Given this,

and the “high bar” that we apply to sufficiency-of-the-evidence challenges, we reject Rich’s

argument here.

The jury also made the same finding for Drozdowski for Count 1 (RICO conspiracy),

Count 3 (conspiracy to manufacture, distribute or possess with intent to distribute

methamphetamine), and Count 39 (aiding and abetting the manufacturing of methamphetamine).

The record supports this conclusion. Indeed, we need only consider the testimony of Heather

Kaster. She was a DDMC member’s girlfriend and a bartender. Kaster convinced the bar’s patrons

to purchase at least one hundred boxes of pseudoephedrine for her. She would then give it to her

boyfriend and Drozdowski for them to cook (and then distribute) methamphetamine. Each box

-47- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

would yield about two grams of “uncut dope,” and a final product yield of “four to six grams.”

These quantities alone more than establish the 50/500 grams requirement set forth in the jury’s

findings, irrespective of Drozdowski’s position that “uncut” methamphetamine does not

necessarily mean “pure” methamphetamine. (We also note Kaster was not the only one who linked

Drozdowski to cooking methamphetamine. Consider, for example, Jesse Williams’ testimony that

he cooked methamphetamine maybe 10 to 20 times with Drozdowski, with each cook requiring

four boxes of pseudoephedrine and yielding about 5-6 grams).7 This claim is not well taken.

Smith, Darrah, and Witort challenge the sufficiency of the evidence supporting the jury’s

finding that they conspired to manufacture, distribute, or possess with the intent to distribute

controlled substances in violation of 21 U.S.C. §§ 841, 846 (Count 3). As they did below, they

advance on appeal their position that there were multiple drug-conspiracies, not one overarching

one. The caselaw does not mandate that we convert a “single conspiracy . . . to multiple

conspiracies simply because it can be subdivided, . . . because each member of the conspiracy did

not know every other member, or because each member did not know of or become involved in

all of the activities in furtherance of the conspiracy.” United States v. Beals, 698 F.3d 248, 259

(6th Cir. 2012) (citation omitted). Rather, “whether single or multiple conspiracies have been

shown is usually a question of fact to be resolved by the jury” by examining “the existence of a

7 Drozdowski also posits that the district court erred because the jury did not apportion the drug amounts across the different counts. But he made no such argument to the district court in his Rule 29 motion. A defendant must preserve a sufficiency-of-the-evidence claim by moving for judgment of acquittal under Rule 29. United States v. Hamm, 952 F.3d 728, 739–40 (6th Cir. 2020). And “where a Rule 29 motion is made on specific grounds,” we find forfeited all non- specified grounds. Id. Thus, he has forfeited this aspect of his sufficiency-of-the-evidence claim. -48- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

common goal, the nature of the scheme, and the overlapping of the participants in various

dealings.” United States v. Adams, 722 F.3d 788, 806 (6th Cir. 2013) (citation omitted).

We adopt as our own the district court’s rejection of defendants’ arguments when it

resolved their motions for acquittal. United States v. McKeoun, 2018 WL 5634216, at *9–10 (E.D.

Mich. Oct. 30, 2018). In short, the evidence supporting this conviction is part and parcel to the

RICO conspiracy conviction (Count 1). The government put on significant proof of the DDMC’s

structure, the prevalence of methamphetamine in nearly every aspect of the Club, and Smith’s,

Darrah’s, and Witort’s involvement in that scheme—Smith and Darrah ran the Club’s

methamphetamine network (and required their dealers to “kick up” proceeds to them) and Witort

was a major supplier of the Club’s methamphetamine. The government thus amply demonstrated

the existence of a single conspiracy to manufacture, possess, and distribute methamphetamine.

Defendants’ generic arguments on appeal merit no more discussion.

The DDMC clubhouses across the country, including in Alabama, Indiana, Michigan, and

Ohio, had illegal gambling machines. Members and nonmembers alike could use them, and the

DDMC used the proceeds to pay its expenses. And as it relates to Smith and Darrah’s claim of

appeal, the jury heard significant testimony linking numerous individuals to the placement and

maintenance of those machines at numerous clubhouses. On these facts, the jury convicted Smith

and Darrah of conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. §§ 371,

1955.

RICO criminalizes participating in “an illegal gambling business,” which is an illicit

gambling business that “involves five or more persons” and “has been or remains in substantially

continuous operation” for at least 30 days or grosses $2000 in a single day. 18 U.S.C. § 1955(a)-

-49- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

(b)(1). This is a broad prohibition: “any act, duty or function which is necessary or helpful in

operating the enterprise” is sufficient. United States v. Merrell, 701 F.2d 53, 55 (6th Cir. 1983).

Put differently, with the “except[ion of] participation as a mere bettor,” “any degree of

participation in an illegal gambling business” will merit a conviction under § 1955. Sanabria v.

United States, 437 U.S. 54, 70 n.26 (1978).

Smith and Darrah challenge two aspects of the gambling-conspiracy convictions. First,

they assert that “[t]here was no evidence introduced regarding the length of time any slot machines

remained in continuous use for an extended period of thirty days, or that revenues from any slot

machine, individually or combined, generated revenues of $2,000 in any single day.” They did

not raise that as a ground for dismissal below in their Rule 29 motions, rendering it forfeited.

Hamm, 952 F.3d at 740.

Second, they dispute witness testimony regarding specific individuals’ involvement and

knowledge of the machines. Their argument ignores the statute’s broad coverage—any act that is

helpful to the enterprise suffices to establish the five- person minimum threshold. Sanabria, 437

U.S. at 70 n.26; Merrell, 701 F.2d at 55. And that is what we have here: two members were the

only ones to have keys to the machines at the Blue Water clubhouse; Mastromatteo and Vernon

Rich maintained the machines; and another member sold a machine to Smith when the latter said

“[h]ey, that Cherry Master at the clubhouse, I could use that in Alabama.” These five actions alone

are enough, not to mention the actions of other members, which Smith and Darrah do not contest.

Darrah challenges the sufficiency of the evidence supporting his conviction under

21 U.S.C. § 841(a)(1) for possessing methamphetamine with intent to distribute. The evidence

relating to this charge arose from the controlled buy we briefly summarized above as part of our

-50- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

discussion of the Title III intercept, where Darrah facilitated a transaction between the supplier,

Vern Rich, and a cooperating witness, DDMC member John Pizzuti. Pizzuti testified about that

purchase, which was audio recorded. Darrah gave Pizzuti methamphetamine contained in a

cigarette pack in exchange for $1000. While counting out the money, Darrah was asked if the

methamphetamine was “f--kin good s--t,” to which Darrah replied “it looks pretty good.” Darrah

argues in conclusory fashion that “[t]here is absolutely no credible evidence that establishes that

Paul Darrah knew what was hidden inside the box.” This strains credulity. We cannot consider

Pizzuti’s credibility on appeal, see Jackson, 470 F.3d at 309, and drawing all inferences in the

jury’s favor, a rational trier of fact could conclude that Darrah knew he exchanged

methamphetamine for cash based on Pizzuti’s testimony and Darrah’s own words, to wit, that the

drugs “look[ed] pretty good.”

Smith, Darrah, and Drozdowski challenge the sufficiency of the evidence supporting their

VICAR convictions, which prohibits the commission of certain violent crimes “in violation of the

laws of any State or the United States” “for the purpose of . . . maintaining or increasing position

in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959. Although VICAR does not

cover all violent crimes committed by those associated with an enterprise, we do not require the

government “to prove the defendant acted ‘solely’ or ‘primarily’” for an enterprise-related

purpose. United States v. Hackett, 762 F.3d 493, 500 (6th Cir. 2014) (citation omitted). Rather,

it need only demonstrate “an ‘animating purpose’ of the defendant’s action was to maintain or

increase his position in the racketeering enterprise.” Id. (citation omitted). So, for example, we

have held that a jury can reasonably infer this motive “where the evidence shows that a defendant

committed the violent crime ‘because he knew it was expected of him by reason of his membership

-51- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

in the enterprise or that he committed it in furtherance of that membership,’” United States v.

Ledbetter, 929 F.3d 338, 358 (6th Cir. 2019) (citation omitted), like retaliating violently in

response to disrespectful behavior, United States v. Odum, 878 F.3d 508, 519 (6th Cir. 2017).

Smith, Darrah, and Drozdowksi’s VICAR convictions stem from three different incidents, which

are set forth in turn.

David Drozdowski assaulted an innocent citizen, Robert McClure, at a Detroit-area club.

McClure went to the club to see a heavy-metal band play. He was wearing a vest that contained

patches for another band, Black Label Society. Those patches were akin to motorcycle-club

patches generally, and quite unfortunately for McClure, resembled the patch of one of DDMC’s

rivals, the Black Pistons. Drozdowski noticed McClure when he entered the club and called

Smiley Villa, a frequent associate of the DDMC, for assistance. Villa told a witness that he left

the DDMC clubhouse after receiving a call from Drozdowski that night because “his brother

needed him.” Drozdowski then pointed McClure out and told Villa to “watch out” because he

thought McClure was a Black Piston. Toward the end of the show, Villa approached McClure,

got “in his face,” and repeatedly screamed at him to take off his vest. McClure’s friend tried to

defuse the situation by unsuccessfully explaining to Villa that the vest showed support for a band,

not the rival motorcycle club. McClure started to remove the vest, but then Drozdowski—wearing

a DDMC vest—approached from the side and “sucker-punched” McClure on the side of his head.

The punch caused McClure to fly back several feet, hit a wall, and lose consciousness. He was

ultimately diagnosed with acute head trauma, a broken jaw and broken sinus bones. Villa and

Drozdowski then ripped the vest off the unconscious McClure, left, and excitedly displayed it.

Drozdowski later told the FBI case agent that he believed Villa had hit McClure. On this and other

-52- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

evidence, the jury convicted Drozdowski of assault in aid of racketeering activity in violation of

18 U.S.C. § 1959. Drozdowski contends this evidence was insufficient for three reasons.

First, Drozdowksi says that, by this point, there was no longer a RICO enterprise, so he

could not have been associated with it and his assault could not have been in aid of racketeering.

But as set forth above, there was evidence of an enterprise and Drozdowski’s association with it.

Second, he paints the assault as an isolated incident driven by Villa’s desire to steal a rival’s

vest and thus claims his sucker punch was not an attempt to maintain or increase his position in

the enterprise. Viewing the facts in the light most favorable to the government, we must disagree.

The jury heard that Drozdowski identified McClure and called Villa for help because of the patches

on McClure’s vest. It heard that before Drozdowski assaulted McClure, Villa had done the same.

It heard the pair proudly displayed the vest later that night. And it heard extensive testimony about

Drozdowski’s interest in “climb[ing] the ladder” of the DDMC, including leading its Blue Water

chapter. This is more than enough to establish that Drozdowski’s unprovoked attack was done to

either maintain or increase his position in the RICO enterprise. See Ledbetter, 929 F.3d at 358;

Odum, 878 F.3d at 519.

Finally, Drozdowski concedes he forfeited his third argument—that the government did

not establish that he assaulted McClure with the intent to cause great bodily harm—by failing to

raise it in his Rule 29 motion. See Hamm, 952 F.3d at 740.

DDMC member Scott Perkins permitted Villa (of the McClure assault) to move into

Perkins’ house, which he shared with his then-girlfriend, Kim Hood. Villa had been kicked out of

another motorcycle club and stored a motorcycle that he had reported stolen at Perkins’ house.

-53- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Darrah instructed Perkins to get the motorcycle out of his house “asap” because, according to

Darrah, “you don’t need his s--t over there to get you dirty.”

Villa frequented DDMC bars. And at one, the Green Street Tavern (where Darrah’s “old

lady” worked), he “tore it up and disrespected people.” The government introduced into evidence

calls between Perkins and Darrah wherein Darrah says he had “a problem” with Villa’s behavior.

Darrah told Perkins that Villa was not to go into the bar again because “he’s embarrassed, he’s . . .

threatened people that I . . . care for over there.” And if Villa did not listen to Darrah, he would

“come out there and beat the f--kin s--t out of him.”

After that incident (which occurred five days after the get-the-motorcycle-out-of-the-house

instruction), Smith, Darrah, and Vandiver then pulled up to Perkins’s house “at a high rate of

speed.” They got out of the car with Smith carrying a club typically used to lock a steering wheel,

and gave Perkins an ultimatum: “get that Vigilante out of [his] house” or “both [would] get hit

with a . . . club.” So, Perkins kicked Villa out. (The Vigilantes are another motorcycle club.)

Based on this and other evidence, a jury convicted Smith and Darrah of VICAR.

Smith and Darrah contend this evidence was insufficient to establish a VICAR conviction,

challenging only whether the government proved this confrontation was “for the purpose of

maintaining [their] position . . . [in] a racketeering activity.” To support this claim, they point to

a different portion of testimony than cited above—Perkins noted that Villa’s drinking and presence

at the home strained his relationship with Kim Hood. And at some point, Hood contacted Darrah

about her problems with having Villa at the house. So, Smith and Darrah argue, this was at most

a personal feud that Darrah resolved and thus its animating purpose was not enterprise related.

Smith and Darrah are correct that one view of the facts supports their this-was-a-personal-

dispute claim. But that is not how the appellate review of sufficiency-of-the-evidence claims

-54- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

works. We must “draw all available inferences and resolve all issues of credibility in favor of the

jury’s verdict.” Jackson, 470 F.3d at 309 (citation omitted). And through that prism, the evidence

discussed above presents a picture of an assault not because of domestic issues, but because Darrah

viewed Villa as embarrassing the DDMC and its associates with his drunk and disorderly conduct.

Hackett, 762 F.3d at 500.

Danny Burby was a DDMC member. He dated Michelle Richards. Richards knew the

DDMC’s rules for women: “We just weren’t to disrespect any of the brothers. . . . [W]e couldn’t

like talk rude to them or be mean to them or disrespect them.” And if they did, they “would get

punished or beat up.” Indeed, she recounted a time where she witnessed this firsthand—she saw

Smith push a member’s girlfriend to the ground and then kick her out of a party for getting into a

fight with the member and “getting loud and obnoxious.” A similar instance happened to Richards

at one of the DDMC’s parties.

After Burby and Richards got into an argument, Richards went looking for her purse in the

saddlebags of their motorcycle so she could leave. In the process, she threw Burby’s DDMC

patched vest on the ground. This caused Smith (and others, including Darrah and Vandiver) to

approach. Things escalated quickly. Smith told her to go sit by a fire and Richards declined. He

then yelled at her, calling her a “c--t.” She responded by telling him to “f--k off,” so he repeated

the remark and then “smacked” her. Richards told Smith “he hit like a b---h” and again “to f--k

off.” So Smith punched her, grabbed her by her hair, threw her to the ground, got on top of her,

and hit her with his fists and opened-hands “[p]robably at least 20 times.” Smith stopped only

when Burby pulled him off her. The attack left her with a black eye, lumps, bruises, blood coming

-55- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

from her nose and mouth, and pain. And for this the jury convicted Smith of attempted assault in

aid of racketeering activity in violation of 18 U.S.C. § 1959.

Smith presses three agreements on appeal, none of which persuade.

First, Smith contends the evidence demonstrates he assaulted Richards only after her

provocation and thus did not satisfy VICAR’s purpose element. But this argument ignores the

record evidence establishing how the DDMC expected women to “behave” and the value it placed

on the “patch” sewn on to a member’s vest. With this understanding, a rational juror could

conclude Richards’s actions disrespected Smith (regardless of being provoked), and that it was

expected of him to display his disgust with physical violence in order to maintain his role as Club

president. See Ledbetter, 929 F.3d at 358; Odum, 878 F.3d at 519.

Second, he says the government failed to prove that he intended to do great bodily harm as

required for a conviction under M.C.L. § 750.84. He provides no facts or argument in support.

Regardless, there is more than sufficient evidence in the record to satisfy that element—Smith (a

large man) sat on a petite woman and hit her until he was pulled off by Burby. Given the

surrounding facts and circumstances, People v. Beaudin, 339 N.W.2d 461, 463-64 (Mich. 1983),

a rational juror could infer such intent.

Finally, Smith selectively quotes § 1959(a) to argue the government did not prove the

assault “resulted” in a serious bodily injury. But he omits the other part of VICAR—one who

“attempts or conspires . . . to” “commit[] assault resulting in serious bodily injury” also violates

VICAR. § 1959(a). That is what the jury convicted Smith of.

Smith’s assault of Richards also resulted in conspiracy-to-obstruct-justice-by-witness-

tampering convictions. After the assault, several DDMC members (including Smith and Darrah)

-56- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

were recorded talking about how they did not want Richards or Burby to “do anything stupid” and

wanting to find out if either had talked to law enforcement. Burby says he immediately quit the

Club, so Darrah instructed others to take his DDMC materials and to “tell him to shut his motherf-

-king mouth before he doesn’t have one to shut.”

This happened around the same time federal agents executed search warrants at multiple

DDMC locations. So the DDMC labeled Burby a snitch, and even went as far as flyering bars and

other Club gathering spots with a photograph of Burby that said “Snitches get stitches.” This

caught the FBI’s attention, and Special Agent Fleming reached out to Burby with reason to believe

DDMC members were “looking to do harm to [him.]” This fear was well-founded—the jury heard

testimony indicating that Darrah asked a member several times to beat up Burby. Fleming also

approached Darrah, stating that he “had received information that members of the Devils Diciples

might try and harm Mr. Burby”; Darrah responded “that he would talk to the members of the Devils

Diciples about the situation.” A few days later, Burby was assaulted by several DDMC members

at a bar. Based on this and other evidence, a jury convicted Smith and Darrah of conspiracy to

witness tamper.

On appeal, Smith and Darrah focus almost exclusively on the events just before and during

the assault. In their view, the assault happened because Burby sought it out—he showed up at the

bar “expecting a confrontation” and even brought some friends as backup. They also focus on

Burby’s testimony that he was not afraid of them and at one point even threatened Darrah after

hearing of the snitch posters.

But this matters not for a conviction to conspire to witness tamper. 18 U.S.C. § 1512(b)(3),

makes it a crime to conspire to use intimidation or threats with the intent to “hinder, delay, or

prevent the communication to a law enforcement officer . . . of information relating to the

-57- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

commission or possible commission of a Federal offense.” §§ 1512(b)(3), (k). A jury could ably

conclude that Smith, Darrah, and others tried to make sure Burby did not report Smith’s assault of

Richards (the federal crime) through their phone calls trying to figure out if he had talked to the

police (and trying to get him not to), the snitch flyers, and the assault.

7.

In 2006, a jury in a separate case convicted Castano of drug-distribution and firearm-

possession offenses. See Castano, 543 F.3d at 829. The FBI later learned several DDMC members

lied about the circumstances supporting Castano’s conviction for being a felon in possession. See,

e.g., United States v. Castano, 906 F.3d 458, 461–62 (6th Cir. 2018) (detailing the lies by four

individuals). As relevant for this issue, Keith McFadden falsely testified that his girlfriend, Stella

Herron, purchased the gun discovered in a truck Castano was driving (which happened to be loaded

with fifty pounds of marijuana), that the gun belonged to McFadden and Herron, and that Castano

did not know about the gun. Id. According to McFadden, he did so only after a visit from Smith

and Darrah. They, like others in the DDMC, approached him after Castano’s arrest and told him

“it would be a good thing if [he] was to take care of a brother.” McFadden testified that he “didn’t

have a choice,” and they hatched a plan for him to “claim the gun as Stella’s.” So Castano,

McFadden, and Herron got their stories “straight,” with Smith confirming with Herron that she

was going to “help” Castano out and Darrah calming Castano’s fear that she was “not going to be

believable.” On this (and other) evidence, the jury in this case convicted Smith and Darrah of

conspiracy to suborn perjury and obstruct justice.

Defendants claim that this conduct does not demonstrate a conspiracy to suborn perjury for

two reasons. First, they contend the evidence shows McFadden testified for Castano in exchange

for Castano’s money and drugs, that McFadden alone convinced Herron to perjure herself given

-58- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

she was in an abusive relationship with McFadden, and that McFadden is not credible because he

lied about abusing her. Second, they assert only Smith made the “take care of a brother” comment.

Forfeiture dooms these arguments from the start. Defendants’ Rule 29 motion was

specifically, and only, predicated on attacking the credibility of McFadden and Herron. Having

failed to raise the arguments they press here in their Rule 29 motions, these claims are forfeited.

Hamm, 952 F.3d at 740. And even if not forfeited, the evidence set forth above—that the DDMC’s

president (Smith) and vice-president (Darrah) approached the two to “help” a member avoid a

firearm charge and then assisted with their testimony—more than demonstrates that a rational juror

could conclude Smith and Darrah conspired to suborn the perjury of McFadden and Herron.

8.

Law enforcement officials executed a search warrant on Drozdowski’s trailer and

discovered rifle and shotgun ammunition. The ammunition was in two different locations in the

trailer—the rifle rounds were on a display case in the living room and the shotgun shells were in a

closet near the bedroom. On this evidence, a jury convicted Drozdowski of being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g).

The offense of being a felon in possession under 18 U.S.C. § 922(g) consists of three

elements: (1) being a prior felon; (2) knowing possession of ammunition; and (3) an interstate

nexus. Drozdowski contends he did not constructively possess the ammunition. Constructive

possession occurs “when the defendant does not have possession but instead knowingly has the

power and intention at a given time to exercise dominion and control over an object, either directly

or through others.” United States v. Vichitvongsa, 819 F.3d 260, 275 (6th Cir. 2016) (citation

omitted). “Proof that the person has dominion over the premises where the [prohibited item] is

located is sufficient to establish constructive possession.” United States v. Kincaide, 145 F.3d 771,

-59- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

782 (6th Cir. 1998) (citation omitted). Put differently, “[a] jury is entitled to infer that a person

exercises constructive possession over items found in his home.” United States v. Hill, 142 F.3d

305, 312 (6th 1998) (citation omitted).

Drozdowski contends the government did not establish constructive possession because

“[t]here is no indication in the record that Drozdowski knew either the shotgun shells or the rifle

rounds were in the trailer.” To make this argument, he mainly points to the testimony of his

roommate, who testified that she placed the shells in the closet after unpacking a box belonging to

Drozdowski’s former roommate. And he argues there was no evidence about how visible the rifle

rounds were.

This argument is meritless. It is undisputed that numerous rounds of ammunition were

found in Drozdowski’s home and that alone is enough to establish constructive possession. See

Kincaide, 145 F.3d at 782. That the rounds may have belonged to someone else or perhaps were

not in plain view does not hurdle the high bar required to set aside the jury’s constructive

possession finding. Persaud, 866 F.3d at 379–80.

Defendants next challenge various jury instructions. We have already rejected one of their

challenges in the published opinion issued with this appendix, concluding that the district court

properly instructed the jury as to the elements of RICO conspiracy. We now address, and reject,

the remaining jury instruction issues.

Where defendants preserved the issue by objecting below, we must determine “whether the

charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.”

Hendrickson, 822 F.3d at 818 (citation omitted). We review “the legal accuracy of jury

instructions de novo, . . . [b]ut a district court’s refusal to give an instruction requested by the

-60- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

defendant must amount to [an] abuse of discretion in order for us to vacate a judgment.” United

States v. Pritchard, 964 F.3d 513, 522 (6th Cir. 2020) (citation omitted). Further, a jury instruction

that omits or misdescribes an offense’s elements is subject to harmless-error review. See Neder v.

United States, 527 U.S. 1, 9–10 (1999).

Defendants first claim that the district court incorrectly instructed the jury regarding the

interstate commerce nexus requirement of the RICO conspiracy charge. They requested an

instruction that advised the jury that the government was obligated to prove that the Club’s “non-

economic activities” had “a substantial effect on [interstate] commerce.” The district court instead

opted for the government’s proposed instruction, which required the government to prove only

that the DDMC “engaged, or would engage in interstate economic activities” for which “a minimal

effect” on interstate commerce suffices. The district court’s instruction was correct. As set forth

in United States v. Riddle, “a de minimis connection suffices for a RICO enterprise that ‘affects’

interstate commerce.” 249 F.3d 529, 537 (6th Cir. 2001).

Defendants derived their proposed instruction from Waucaush v. United States, 380 F.3d

251, 255–56 (6th Cir. 2004). There, a defendant charged with RICO conspiracy challenged his

conviction on grounds that the enterprise he took part in had not been involved in interstate

commerce. Id. at 255. We agreed and set forth an exception to Riddle. Id. The general rule, we

said, complied with the Commerce Clause of the Constitution where “the enterprise itself had

engaged in economic activity,” for example by operating an illegal gambling business, extorting

money, and fencing stolen merchandise. Id. But where an enterprise engaged only in “violence

qua violence,” it was purely non-economic activity, so Congress could not criminalize it under the

Commerce Clause without showing a substantial effect on interstate commerce. Id. at 256; see

-61- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

United States v. Morrison, 529 U.S. 598, 617–18 (2000). Waucaush does not apply here because

the DDMC enterprise was engaged in quintessentially economic activity like selling narcotics and

stolen motorcycle parts. In other words, the district court correctly used the “minimal effect”

language endorsed by the Riddle court, rather than the “substantial effect” instruction required by

the non-economic activity at issue in Waucaush.

Defendants’ last RICO-centric challenge to the jury instructions is a claim that the district

court abused its discretion by declining to give the jury special interrogatories requiring it to

unanimously agree or disagree to the acts of racketeering charged in the indictment. This argument

fails. First, the jury need not be unanimous as to specific acts of racketeering. See United States

v. Wilson, 579 F. App’x 338, 347 (6th Cir. 2014) (collecting cases). To the extent that unanimity

as to the type of racketeering act is required, the district court gave such an instruction. Defendants

thus sought the special interrogatories only to confirm that the jury followed the court’s

instructions. In this circumstance, the “decision whether to use special interrogatories in criminal

RICO cases is left to the discretion of the trial judge.” United States v. Applins, 637 F.3d 59, 83

(2d Cir. 2011); cf. United States v. Blackwell, 459 F.3d 739, 766–67 (6th Cir. 2006) (finding no

abuse of discretion in the district court’s refusal to use special verdict form where the instructions

accurately set forth the law). We conclude that the district court’s decision not to give the special

interrogatories was not an abuse of discretion.

Defendants also appeal the district court’s instructions on two of the alleged predicate

racketeering activities defined under Michigan law (second-degree murder and assault with intent

to murder) because, in their view, the court was required to instruct the jury to consider, as an

-62- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

element of the offense, whether the charged acts were justified or mitigated by circumstance. The

district court’s instructions tracked Michigan’s Model Criminal Jury Instructions, which make

clear that the mitigation instruction is situational and only required when supported by the

evidence. This is consistent with Michigan caselaw. See, e.g., People v. Stevens, 858 N.W.2d 98,

104 (Mich. Ct. App. 2014) (“Once a defendant raises the issue of self-defense and satisfies the

initial burden of producing some evidence from which a jury could conclude that the elements

necessary to establish a prima facie defense of self-defense exist, the prosecution must exclude the

possibility of self-defense beyond a reasonable doubt.” (internal quotation marks and citation

omitted)). Accordingly, because the district court found that the defendants had introduced no

evidence of justification or excuse, and because defendants do not challenge that conclusion on

appeal, it could not be an abuse of discretion for it to refuse to give the mitigation instruction when

defining the crimes of second-degree murder and assault with intent to commit murder.8

Drozdowski, Castano, and Rich challenge the district court’s alleged refusal to give a

multiple-conspiracy instruction. While it is true the district court initially declined to give such an

instruction, it ultimately decided to give one after hearing the “tenor” of the closing arguments.

After so instructing the jury, the court specifically asked whether counsel were satisfied with the

multiple conspiracy instruction, and counsel for all three defendants confirmed that they were.

Consequently, defendants concede that this claim has been waived.

8 At argument, Smith argued for the first time that the evidence produced at trial mandated the inclusion of a mitigation and/or justification instruction. But “a party does not preserve an argument by raising it for the first time at oral argument.” United States v. Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir. 2009). -63- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Defendants next claim the district court erred when giving supplemental instructions

regarding the nature of conspiracies during jury deliberation in the first trial.

The district court instructed the jury on multiple conspiracies in its main set of instructions.

But after the jurors sent out questions implicating the issue and the district court unsuccessfully

referred them back to the written instructions, the court gave a supplemental instruction, stating in

part: “[T]he question before you is whether a defendant has been proven, beyond a reasonable

doubt, to have knowingly and intentionally engaged with another person—named or unnamed,

known or unknown—in the single conspiracy charged in the indictment[.]” The next day, the jury

sent out another question: “Does ‘one single’ conspiracy . . . mean that each defendant charged in

Count 3 must be part of an interconnected conspiracy or are they charged with an individual

conspiracy that is not interconnected to the other defendants charged?” After conferring with

counsel, the court gave another supplemental instruction over defendants’ continued objection:

Your question refers to a conspirator or a conspiracy being “interconnected” to or with the other defendants. A conspiracy is, by its very nature, an agreement. In my instructions, I do not use the term “interconnected.” It is your task, in this regard, to determine whether there is agreement between at least two people, or more, to commit the crime or crimes charged. That is the essence of a conspiracy. Now, in order for the Government to prove that a particular defendant was a member of a particular conspiracy, it is necessary to prove only that the defendant knew of the conspiracy, intentionally associate[d] himself with it, and knowingly contribute[d] his efforts in its furtherance. So, the essential question before you in this regard is whether the government has proved the existence of at least the conspiracy alleged in Count 3: a single conspiracy to manufacture, distribute, or possess with intent to distribute one or more kinds of controlled substances as specified in that Count.

Finally, remember, of course, that proof that a defendant was a member of another conspiracy is not enough by itself to convict that defendant of being a member of the conspiracy in Count 3; on the other hand, bear in mind that even if a defendant has been proved to be a member of another conspiracy, that fact is not necessarily inconsistent with also being a member of the conspiracy charged in Count 3, as

-64- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

long as the government has proved, by the requisite burden, that the defendant was, in fact, a member of the conspiracy charged in Count 3.

Defendants contend these instructions either constituted a constructive amendment of the

indictment or eliminated the defense of multiple conspiracy in violation of their right to due

process.9 More specifically, they take issue with the court’s instruction that as long as the jury

found a defendant had engaged with another person “known or unknown” in the charged

conspiracy, it could find him guilty; this, they say impermissibly “broadened the indictment to

charge a conspiracy with any person to manufacture or traffic in methamphetamine over 500 grams

from 1992 to 2012 in the Eastern District of Michigan, Alabama, Arizona, California, Indiana, and

Ohio.” The government asserts that there was no constructive amendment of the indictment

because the district court’s supplemental instructions accurately clarified basic principles of

conspiracy law.

“A constructive amendment results when the terms of an indictment are in effect altered

by the presentation of evidence and jury instructions which so modify essential elements of the

offense charged that there is a substantial likelihood that the defendant may have been convicted

of an offense other than the one charged in the indictment.” Martinez, 430 F.3d at 338 (citatiom

omitted). Constructive amendments are “per se prejudicial because they infringe upon the Fifth

Amendment’s grand jury guarantee.” United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006)

9 Without a single citation to authority and with little developed argument, Smith says that the supplemental instructions were “legally incorrect” and that they prejudiced the defendants. While not entirely clear, we understand him to be arguing that the district court omitted as an element that a defendant must knowingly and intentionally join the conspiracy. But the district court adequately conveyed that by stating that “it is necessary to prove only that the defendant knew of the conspiracy, intentionally associated himself with it[,] . . . and knowingly contributed his efforts in its furtherance.” Accordingly, we conclude that Smith has not presented any meritorious argument regarding the supplemental jury instructions. -65- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

(internal citations, brackets, and quotations omitted). Because of the constitutional injury that

results from a constructive amendment, when proven, a defendant is entitled to a reversal of his

conviction. Id. Where preserved, we review a claim of constructive indictment de novo. Id. at

961.10

It is black-letter law that a single conspiracy may be proved even if a defendant did not

know every other member, and even if he did not participate in every aspect of the conspiracy.

See Maliszewski, 161 F.3d at 1014–15. It does not change matters if the government fails to

identify every person who joined the conspiracy or expressly decides not to charge some members

of the conspiracy. See, e.g., United States v. Fishman, 645 F.3d 1175, 1190 (10th Cir. 2011)

(“The . . . indictment specifically stated that there were more conspirators, ‘known and unknown,’

and the fact that not all were charged does not necessarily mean they operated in a separate

conspiracy.”). “In short, the case law makes plain that evidence of multiple players and multiple

locales does not equate with evidence of multiple conspiracies.” Maliszewski, 161 F.3d at 1015.

Nothing in the court’s supplemental instructions allowed for the jury to find a defendant guilty on

Count 3 for engaging in a conspiracy other than the one charged in the indictment. Accordingly,

the district court’s supplemental instructions did not constitute a constructive amendment of the

indictment.

However, “where no specific objection is raised regarding a constructive amendment” 10

below, and the government raises the failure on appeal, we review for plain error. See United States v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008). The government has not pressed for plain- error review, so despite defendants’ failure to raise constructive amendment of the indictment below, we review this issue de novo. See United States v. Williams, 641 F.3d 758, 764 (6th Cir. 2011). -66- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Defendants also challenge two of the district court’s instructions, which deviated slightly

from the Sixth Circuit Pattern Jury Instructions.

First, Smith claims reversible error from the district court’s reasonable doubt instruction,

which omitted language from the model instruction that reads “[p]roof beyond a reasonable doubt

means proof which is so convincing that you would not hesitate to rely and act on it in making the

most important decisions in your own lives.” However, we recently decided that the exact

instruction given by the district court was not an abuse of discretion in an appeal from another trial

conducted by the same district judge. See United States v. Ashrafkhan, 964 F.3d 574, 577–80 (6th

Cir. 2020). That decision controls here.

Additionally, defendants challenge the district court’s instruction regarding the

consideration of evidence because of a minor deviation from Sixth Circuit Pattern Instruction

1.04(5). The district court instructed the jury as follows:

Don’t speculate about what some potential witness who did not testify might have said or what some potential document or exhibit that was not introduced into evidence might have shown. Such things that are not received in evidence are not evidence and you are bound by your oath to not let them influence your decision in any way. In other words, make your decision based on the evidence as I have defined it here, and not on anything else.

This instruction, they claim, “completely undermine[d] the concept of reasonable doubt[,]”

because it forbade the jury from considering the lack of evidence.

But when the jury instructions are put in context and viewed as a whole, they are not

confusing or misleading as is required to demonstrate an abuse of discretion. The district court

accurately instructed that the “presumption of innocence stays with [a defendant] unless the

Government presents evidence here in court that overcomes the presumption and convinces you

-67- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

beyond a reasonable doubt that the defendant is guilty.” And it later reiterated its do-not-speculate

instruction while specifically directing the jury to remember that “the law does not impose upon

any defendant in a criminal case the burden or duty of calling any witness or producing any

evidence.” In sum, the jury was properly instructed to consider only the evidence properly vetted

by the court, while keeping in mind that the government bore the burden of establishing beyond a

reasonable doubt the charged offenses. Accordingly, the district court’s instruction regarding the

consideration of evidence was not an abuse of discretion.

Defendants claim the district court abused its discretion by declining to give a limiting

instruction (as part of its closing jury instructions) regarding the Cadillac murder. The defendants

requested that the district court tell the jury that this episode was

offered for the limited purpose of providing background or context and is not substantive evidence against any individual defendant nor is it substantive evidence which you can consider in determining the existence of an enterprise. Nor can you use this information to determine whether the government has proven beyond a reasonable doubt those elements of Racketerring [sic] as I have defined them for you.

The district court declined, reasoning that it had given limiting instructions throughout the trial

“where testimony was elicited regarding background information.” It further observed that the

proposed instruction was not accurate—some of the testimony had been admitted as substantive

evidence of the conspiracy. Defendants do not address the district court’s ruling that evidence of

the Cadillac murder was admitted as substantive evidence of the conspiracy, rather than as

background. They therefore have forfeited review, and we decline to excuse the forfeiture.

Hendrickson, 822 F.3d at 829 n.10.

-68- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Defendants next claim that the district court abused its discretion by declining to give the

Sixth Circuit Pattern Jury Instruction directing the jury to consider the testimony of addict-

informants “with more caution than the testimony of other witnesses.” The court declined to give

the instruction after referencing United States v. Combs, 369 F.3d 925, 939 (6th Cir. 2004), which

observed that “there is less need for a special jury instruction about the credibility of an addict-

informant where the jury is aware that the witness is an addict and where there was substantial

corroboration for the witness’s testimony.” The district court concluded that it faced precisely that

set of facts: “[i]t is undisputed that multiple witnesses used drugs during the time periods about

which they testified. As defendants note, the record is replete with examples of witnesses

admitting to their drug use.” Further, the court indicated that it would give an instruction on

“Testimony of Paid Informants and Witnesses Under Promise of Reduced Criminal Liability,”

which it believed “adequately warn[ed] the jury” to use increased caution when evaluating the

testimony of addict-informants and “render[ed] superfluous” defendants’ requested instruction.

On appeal, defendants rely on United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967),

to argue that an addict-informant instruction was mandatory under the facts of this case. There,

the government’s star witness was an addict, and his uncorroborated testimony was the only

evidence of the defendant’s personal involvement in the violation of narcotics laws at trial. Id.

Defendant did not request an addict-informant instruction, and the district court did not give any

type of cautionary instruction regarding witness credibility. Id. at 826. On appeal, we vacated

Griffin’s conviction, holding that it was plain error for the district court not to sua sponte give the

addict-informant instruction. Id. at 829. We find Griffin easily distinguishable because the

defendants have not pointed to any uncorroborated testimony by the drug-using witnesses, and

-69- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

moreover, their “financial motivations” for testifying “were sufficiently addressed in another, more

appropriate jury instruction.” United States v. Smith, 624 F. App’x 385, 392 (6th Cir. 2015)

(distinguishing Griffin on analogous facts). Accordingly, the district court did not abuse its

discretion by declining to give the addict-informant instruction.

9.

Next, Smith claims it was reversible error for the district court to submit to the jury for its

deliberations a “Consolidated Redacted Indictment” and a separate list of overt acts that the

government believed had been supported by the evidence. Defendants argue that “[i]n effect,” the

list of overt acts improperly provided the jury “an evidentiary road map of the government’s case.”

For example, the list included as overt acts the Cadillac murder, Indiana murders, and Box Canyon

incident. Other alleged overt acts were non-RICO predicates that tended to show the relationships

between the defendants through their shared bond as DDMC members, as well as their efforts to

evade law enforcement. Defendants assert the overt acts were surplusage because the government

need not prove them to establish a RICO conspiracy under § 1962(d).

Federal Rule of Criminal Procedure 7(d) provides that, “[u]pon the defendant’s motion, the

court may strike surplusage from the indictment or information.” Fed. R. Crim. P. 7(d). We review

the denial of a motion brought under Rule 7 for an abuse of discretion. Moss, 9 F.3d at 550.

In one sense, the defendants are right. “Unlike a substantive RICO charge, a RICO

conspiracy charge does not require proof that the defendant committed any predicate acts and does

not even require proof that the defendant agreed to commit two predicate acts himself, or even that

any overt acts have been committed.” Rios, 830 F.3d at 424 (citation omitted). However, our

caselaw establishes that the government is not limited solely to pleading the elements of the offense

(with anything falling outside the elements subject to being struck as surplusage). In Moss, a case

-70- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

involving a conspiracy to distribute marijuana, we determined that a district court did not abuse its

discretion by declining to strike an allegation in the indictment that one of the defendants had

attempted to bribe a witness even though it was not an overt act in furtherance of the conspiracy.

9 F.3d at 549–50. We explained that “if the language in the indictment is information which the

government hopes to properly prove at trial, it cannot be considered surplusage no matter how

prejudicial it may be (provided, of course, it is legally relevant).” Id. at 550 (citation omitted).

Here, the overt acts were legally relevant because they tended to show either an agreement to form

a RICO enterprise or the actual existence of the enterprise. Accordingly, the district court did not

err by including the overt acts that were supported by the evidence in the indictment.

10.

Smith makes a claim of cumulative error based upon the alleged jury instruction errors

detailed above. Because we conclude that the district court’s instructions were permissible in all

instances, their cumulative-error arguments lack merit. See, e.g., United States v. Eaton, 784 F.3d

298, 311 (6th Cir. 2015).

We turn our attention next to defendants’ various issues regarding about how the

government prosecuted this case.

Defendants chiefly contend the prosecutor engaged in prosecutorial misconduct during her

closing argument. These purportedly out-of-bounds statements came in rebuttal. See United States

v. Henry, 545 F.3d 367, 377 (6th Cir. 2008) (noting the importance of analyzing disputed

comments in the context of trial). The district court’s description of defendants’ closing arguments

is helpful: “Defendants, individually and as a cooperating collective, presented a combined

-71- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

argument that was sometimes merely vigorous and at other times wildly vitriolic. Throughout, it

was spotted with ad hominem accusations and evidence-free attestations.” United States v.

McKeoun, 2018 WL 5777395, at *3 (E.D. Mich. Nov. 2, 2018). Interested readers can see for

themselves such specific examples in the district court’s opinion.

We apply a two-step inquiry to resolve questions of prosecutorial misconduct. “First, we

determine whether prosecutorial statements allegedly constituting misconduct were improper.

Next, if we find impropriety, we ‘then determine whether the improprieties were flagrant such that

a reversal is warranted.’” Eaton, 784 F.3d at 309 (citation omitted). Under this second prong of

the analysis, we consider four factors: “(1) whether the conduct and remarks of the prosecutor

tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were

isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and

(4) whether the evidence against the defendant was strong.” United States v. Modena, 302 F.3d

626, 635 (6th Cir. 2002) (citation omitted).

We review the challenged statements “within the context of the trial to determine whether

such comments amounted to prejudicial error.” United States v. Carter, 236 F.3d 777, 783 (6th

Cir. 2001). And we also give “wide latitude to a prosecutor during closing argument, analyzing

disputed comments in the context of the trial as a whole and recognizing that inappropriate

comments alone do not justify reversal where the proceedings were otherwise fair.” Henry,

545 F.3d at 377 (citation omitted). Put differently, “a criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct

must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct

affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11 (1985). We review

-72- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

preserved claims of prosecutorial misconduct de novo and unpreserved claims for plain error.

Boyd, 640 F.3d at 669.

We begin first with statements that drew objections, thus meriting de novo review.

During the beginning of her rebuttal, the prosecutor generically referred to defendants’

closing arguments as “illusions” and “magic tricks.” Vandiver and McKeoun contend these

references represented an “improper[] insult[ against] various members of the Defense team.” We

disagree. The context of the statement makes clear it was directed towards defendants’ arguments,

not their attorneys. And after the prosecutor made that statement, she then went through and briefly

responded to those arguments. Our review of prosecutor’s rebuttal reveals no improper remarks

against defense counsel.

One of the witnesses, Allen Mancini, testified about his experience as a meth cook. The

prosecutor characterized that testimony in rebuttal as demonstrating Mancini cooked meth “with”

Devils Diciples members. Tying Mancini to the Devils Diciples was important for purposes of

establishing the conspiracy to distribute more than 500 grams of a mixture or substance containing

a detectable amount of methamphetamine. McKeoun says this statement improperly characterized

Mancini’s testimony. He points out that Mancini testified that when he cooked in the underground

methamphetamine lab in Alabama, he did not cook with anyone else. But this “snippet” of

testimony was not the only evidence presented to the jury about Mancini’s connection to the Devils

Diciples and their methamphetamine operation—McKeoun vouched for Mancini and offered him

“cook” tips, and Arnold testified Mancini helped secure ephedrine for “all of” them to use. In

-73- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

general then, it was not a material misstatement of fact to say Mancini cooked “with” the others

who used that lab.

In one closing, one of the defense attorneys commented on the complexity of RICO cases:

The racketeering acts are very specific. And it takes a lot of hard work to figure this out. It is so hard for you to figure this out, that I can promise you that the lawyers in this case can’t agree on anything. They can’t agree on what the words mean, what the Government says, what the defense lawyers say. We can’t agree on it. And yet, we’re asking you to figure it out. Good luck. Good luck. That’s how complicated this case is.

That garnered a prosecutorial rebuttal:

Is RICO conspiracy too difficult to understand, as Mr. Daly suggests? Tell that to the jury that convicted Mad Anthony for the RICO conspiracy. Tell that to Iron Mike, who pled guilty to RICO conspiracy. And tell that to the countless federal juries in the courthouse and across the nation.

The district court sustained an objection to this argument.

Defendants argue the “countless federal juries” comment represented an improper

“assertion[] of personal knowledge” by the prosecutor. See Berger v. United States, 295 U.S. 78,

88 (1935). But the district court sustained the objection and then reasonably rejected this as a

fleeting comment that responded to the critique that RICO is just too confusing to be understood

by any jury:

[T]he Government was simply refuting Sutherland’s attorney’s intimation that RICO was too confusing, that the jury could not possibly understand it. The Government’s remark was narrow, fleeting, and not of any serious moment.

That the district court did not strike the comment is of no moment—the jury plainly heard the

district court sustain that objection (and many others), and regardless, the district court properly

concluded that there was no prejudice resulting from it.

-74- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

We next turn to those statements we review for plain error given no contemporaneous

objection.

McKeoun’s counsel drew an analogy between friends sharing whiskey together while

around the kitchen table and McKeoun’s approach to distributing methamphetamine. That is, in

his view, the jury should see McKeoun’s distribution of methamphetamine as “sharing” it amongst

friends and not a conspiracy to distribute massive quantities. The prosecutor began her rebuttal to

this suggestion as follows:

Do you remember Mr. Kraizman’s argument? Let’s examine it. Because only in a case of this length, magnitude, and overwhelming evidence of guilt would someone actually be forced, with a straight face, to make the last-ditch argument that you should acquit the defendant because he is a sharing man. Remember the slides, ladies and gentlemen? He’s a sharing man?

Think about it. How outrageous is it to suggest to a jury that has witnessed firsthand all of the destroyed lives that were put on full display here that [McKeoun] be acquitted because he had shared, meaning distributed, ladies and gentlemen, amounts of one of the most addictive and dangerous drugs on the planet. He is a caring man. Really?

What he’s really admitting to you is that he is feeding people’s addictions, or introducing new people like young Stephen Wilson, for instance, to meth. Real nice guy. Conduct of that sort is normally condemned, not embraced, of a person’s good nature. You should not be confused, ladies and gentlemen.

McKeoun claims the reference to “straight face” and “last-ditch argument” was an impermissible

argument that McKeoun’s attorney “knew that his client was guilty.” We find no plain error here,

for the context of the rebuttal makes clear it was a forceful rejection of the argumentative spin

advanced by McKeoun’s counsel that passing out methamphetamine to friends was just the polite

thing to do. And as set forth below and in other portions of this opinion, reversal would not be

-75- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

required on the grounds of this one fleeting comment given the overwhelming evidence against

McKeoun.

Regarding Drozdowski’s closing argument, the prosecutor focused on his attorney’s

characterization of the assault on Robert McClure. Of note, she suggested McClure had a cane

and maybe “looked handicapped.” And she focused on pictures of Drozdowski that she said were

“highly relevant and certainly strong evidence of intent and guilt,” commenting:

And you know, it just drove Mr. Machasic nuts, every time we showed photos and addressed them in court, of course it does. He would love for that to go away. What am I talking about? The tattoos of the brass knuckle -- the brass knuckles, and the “talk s--t” on the fists of David Drozdowski. What could be more relevant to the charge of violent crime in aid of racketeering enterprise?

As with the “last-ditch” and “straight face” references regarding McKeoun, defendants say the

“drove Mr. Machasic nuts” line represented an attack that implied Drozdowski’s attorney “thought

that his client was guilty.” But that cannot be—there is a difference between denigrating counsel

(which the statement does not) and pointing out that, as the government notes, it should drive one

crazy if “you couldn’t easily explain” away incriminating evidence.

Drozdowski separately raises a few points regarding this rebuttal. First, he says the

reference to McClure’s “cane” was not supported by the record, but it was—the jury heard

testimony that McClure regularly used a cane to walk (even though there was no testimony about

his use of it on the night of the assault). He also contends that comment, the related “handicapped”

comment, and the reference to his “[t]alk [s]--t” tattoos were irrelevant, “needlessly

-76- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

inflammatory,” and inappropriately labeled him a violent felon.11 Even if that is true (and that is

a difficult conclusion given the inferential leap one can make based on the evidence presented

about Drozdowski and the DDMC’s violent proclivities), there cannot be plain error here due to

the lack of prejudice from such isolated remarks.

Finally, even if any of the above comments could be construed as flagrant, we discern no

prejudice meriting reversal here. As set forth above, the evidence against defendants was

extremely strong, the comments were fleeting, and were invited by defense counsel’s closing

statements. Young, 470 U.S. at 11.

Defendants Witort and Vandiver contend the district court erred in denying the defendants’

various motions for a mistrial after the government allegedly failed to produce required discovery

materials in a timely fashion. It appears that the government produced thousands of pages of

electronic documents on several different occasions, including during trial. Defendants argue the

timing and manner of the disclosures inhibited their ability to properly prepare a defense. We

review for abuse of discretion a district court’s management of criminal discovery and denial of a

motion for mistrial. United States v. Warshak, 631 F.3d 266, 296 (6th Cir. 2010); Martinez, 430

F.3d at 336.

We address this issue in summary fashion. It is hard to review for abuse of discretion when

defendants do not even tell us where in the record the district court resolved their motions, let alone

11 And as referenced in the sufficiency-of-the-evidence discussion, Drozdowski also relies on the prosecutor’s misstatement that tied his possession of those guns to his ammunition charge. But as set forth in that section, that amounts at most to harmless error. -77- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

its reasoning for doing so.12 It is not the court’s job to do the parties’ work, and that well-worn

principle applies with significant force here given nearly 2,600 documents have been filed on the

district court’s docket, amounting to over 43,000 pages. Knight Capital Partners Corp. v. Henkel

AG & Co., 930 F.3d 775, 780 n.1 (6th Cir. 2019) (recounting the apt saying that “judges are not

like pigs, hunting for truffles that might be buried in the record” (internal quotation marks and

brackets omitted)). Moreover, defendants’ briefing identifies no specific wrongful disclosures and

no specific prejudice resulting from those delayed disclosures, which renders their arguments

forfeited. See Hendrickson, 822 F.3d at 829 n.10.

Witort asserts the prosecutor improperly vouched for government witnesses when she

inquired about their agreement to testify. Improper vouching “occurs when a prosecutor either

(1) bluntly states a personal belief in a witness’s credibility, thereby placing the prestige of the

office of the United States Attorney behind that witness, or (2) implies that the witness’s testimony

is corroborated by evidence known to the government but not known to the jury.” Henry, 545 F.3d

at 378–79 (citation omitted). Our review tracks the review of defendants’ claims for the

prosecutor’s alleged misconduct during closing argument—we first determine whether it was

improper, and then next if improper through the prism of the four factors discussed above (tend to

mislead/prejudice; isolated vs. extensive; accidental or deliberate; and strength of evidence against

the accused). Id. at 376.

12 Indeed, Vandiver’s brief reads as if it were copied and pasted from a motion filing below, with many references to “this court” even though it is clearly describing something the district court did. It also “incorporate[s] by reference into its appellate brief [the applicable mistrial motion] filed in the district court,” which is improper. Thomas M. Cooley Law Sch., 459 F.3d at 710. -78- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Testimony from Danny Burby is an exemplar. Here is the relevant direct examination

passage to which Witort directs us:

Q. All right. So as part of your cooperation, did you enter into an agreement with the Government?

A. I did.

Q. And what was your understanding of what that agreement involved?

A. To come here and give the whole truth and nothing but the truth. Be honest about everything you’ve done in your past, and --

Q. Were you allowed to hold back?

A. Can’t hold anything back.

Q. Can you protect anybody at this point?

A. No.

Q. What happens if you hold back or protect someone?

A. The plea is no good. The offer is no good.

Q. And what will happen to you?

A. Potentially be charged back with what I had.

And the prosecutor revisited this testimony on redirect:

Q. Okay. I want to talk to you about your deal. After you turned the corner and decided that you wanted to cooperate with law enforcement, you indicated that you were truthful with law enforcement at that point with one exception; is that correct?

A. Yes.

Q. And what is your understanding of how it is that you -- what it is you have to do before you’re going to be getting this deal? In other words, what do you have to do here today before you’re going to be able to receive the benefit of any deal with the Government?

A. To be completely honest. To tell the truth, the whole truth, and nothing but the truth.

-79- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Witort apparently contends this exchange shows improper vouching because “the

prosecutor elicited testimony that Burby understood that, under the terms of his plea agreement, if

he testified untruthfully, his ‘deal’ would be set aside and he would be fully prosecuted.” In his

view, this exchange shows “[t]he jury was likely to have been misled into believing that the

government has a special way of telling when someone is telling the truth.” He did not

contemporaneously object to these exchanges, thus plain error review applies.

We condone the government’s use of witnesses’ plea agreements that, among other things,

discuss their requirement to truthfully testify, when the use does not otherwise cross over into

improper vouching. See United States v. Trujillo, 376 F.3d 593, 608–09 (6th Cir. 2004). The

prosecutor’s line of questioning here in no way implied the witnesses’ ultimate “deals” depended

upon if the prosecutor believed them, see United States v. Francis, 170 F.3d 546, 550–52 (6th Cir.

1999), and represented an accurate depiction of the plea-agreement process. There was no error

here, plain or otherwise.

For completeness, we note that Castano contends the government engaged in prosecutorial

misconduct when it vindictively prosecuted him.13 But as set forth above, that argument misses

the mark.

E.

After verdict, defendants filed a joint motion for a new trial under Federal Rule of Criminal

Procedure 33. It was a motion in form only, adopting and incorporating by reference numerous

13 Castano appears to also argue the prosecutor committed misconduct by “telling the jury Castano must be convicted because he confessed to the crimes charged, disparaging defense counsel, improperly bolstering the credibility of government evidence, and falsely stating that 50

-80- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

written and oral motions and objections that they had lodged with the district court throughout

trial. The district court denied the motion in one paragraph, noting their incorporation by reference

was improper—it “point[ed] to no specific allegation of error or [and did not] articulate any form

of reasoned analysis giving context to their motion.”

Vandiver argues on appeal that this was error. He acknowledges that the general caselaw

prohibits incorporation by reference at the appellate stage, see, e.g., Thomas M. Cooley Law Sch.,

459 F.3d at 710, but says those cases are inapplicable to adoptions made in the district court. We

disagree for two reasons. First, it is well settled that a party forfeits skeletal arguments,

Hendrickson, 822 F.3d at 829 n.10, and presenting a district court with only incorporated-by-

reference filings did just that. And second, Vandiver did here what doomed the initial filing in

district court—he did not advance any argument as to why the district court’s denial of the Rule

33 motion was wrong in substance. That is, even if the district court erred at the outset in finding

the motion forfeited, he does not set forth why the district court substantively erred. And because

his briefing fails to do that, he has abandoned that argument on appeal. See Vander Boegh v.

EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014). To the extent he offers some

argumentation in reply for the first time, that is too little, too late. Galaviz, 645 F.3d at 362.

IV.

Finally, every defendant challenges his sentence on procedural and/or substantive

reasonableness grounds.

pounds equated to more than 100 kilograms.” But he supports this brief sentence with no factual citations, or argument, thus forfeiting it. Hendrickson, 822 F.3d at 829 n.10. -81- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Before we take up their individualized arguments regarding the sentences imposed by the

district court, we address one matter of general applicability. Defendants Smith, Darrah, Vandiver,

McKeoun, and Witort have raised an issue under Apprendi v. New Jersey, 530 U.S. 466, pointing

out that the maximum sentence for violation of the RICO statute is “not more than 20 years” unless

“the violation is based on a racketeering activity for which the maximum penalty includes life

imprisonment.” 18 U.S.C. § 1963. Under the Apprendi line of cases, any fact (other than a prior

conviction) that increases the penalty for a crime beyond the prescribed statutory maximum must

be alleged in the indictment and proved beyond a reasonable doubt at trial. See United States v.

Cotton, 535 U.S. 625, 627, 632 (2002).

The district court ruled that a life sentence was available on Count 1 because the

government had separately alleged in Count 3 that each defendant was guilty of conspiracy to

possess with intent to distribute at least 500 grams of a mixture containing methamphetamine, and

the jury made a special finding to that effect, which enhanced the sentencing penalties under 21

U.S.C. § 841(b)(1)(A)(viii) and § 846. But because no drug quantity was alleged in Count 1’s

specification of the meth conspiracy as a predicate act, defendants assert that raising the maximum

sentence for the RICO conviction violated Apprendi:

Regarding trafficking in controlled substances, the indictment identified trafficking in controlled substances under Arizona and Michigan law and 21 U.S.C. §§ 841 and 846, none of which carry a maximum sentence of life. Yet the district court submitted to the jury, as the only activity that would increase the maximum penalty from 20 years to life, a conspiracy involving at least 500 grams of a substance containing methamphetamine was an activity not charged as a racketeering activity.

Even if defendants are correct, we deem this harmless error because the district court in

each case imposed concurrent sentences on Count 1 and Count 3. So even if the sentences on

-82- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Count 1 are technical violations of Apprendi, “the sentences for each run concurrently with valid

and equally lengthy sentences.” United States v. Upshaw, 114 F. App’x 692, 716 (6th Cir. 2004)

(recognizing that Apprendi violation in RICO conspiracy case was harmless error).14 Accordingly,

the alleged error cannot have any effect on these defendants’ substantial rights. Id.

We now turn to the individual arguments defendants make for review of their respective

sentences. We review a defendant’s sentence for reasonableness, using an abuse-of-discretion

standard. United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008). “Reasonableness review has

both substantive and procedural components.” United States v. Keller, 498 F.3d 316, 322 (6th Cir.

2007). The procedural component requires us to ensure that the district court: “(1) properly

calculated the applicable advisory Guidelines range; (2) considered the other § 3553(a) factors as

well as [arguments for a sentence outside the range]; and (3) adequately articulated its reasoning

for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir.

2007). In evaluating the procedural reasonableness of a defendant’s sentence, “we review the

district court’s factual findings for clear error and its legal conclusions de novo.” United States v.

Angel, 576 F.3d 318, 320 (6th Cir. 2009). And the substantive component requires us to consider

whether a defendant’s sentence “is too long” because the district court “placed too much weight

on some of the § 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d 436,

442 (6th Cir. 2018). A within-Guidelines sentence is presumptively reasonable. United States v.

Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc).

14 The Supreme Court subsequently vacated the judgment in Upshaw for further consideration of United States v. Booker, 543 U.S. 220 (2005). See Rice v. United States, 545 U.S. 1136 (2005) (Mem.). However, the proposition for which it is quoted above is well-established in our precedent. See, e.g., United States v. Burns, 298 F.3d 523, 544–45 (6th Cir. 2002). -83- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Smith was convicted of: (1) RICO conspiracy; (2) illegal gambling conspiracy;

(3) conspiracy to manufacture, distribute or possess with intent to distribute controlled substances;

(4) witness tampering conspiracy; (5) attempted VICAR against Michelle Richards; (6) VICAR

against Scott Perkins; and (7) conspiracy to obstruct justice. The district court calculated Smith’s

offense level at 57, which it then reduced to the maximum level of 43 and combined with Smith’s

Criminal History Category of I to produce a Guidelines range of life imprisonment. The court then

imposed a life sentence. Smith now challenges the district court’s handling of the relevant-conduct

inquiry and the substantive reasonableness of his sentence.

At the sentencing hearing, the court first referenced its prior orders addressing relevant

conduct and its conclusion that methamphetamine and violence were at the core of the DDMC—

“[m]ethamphetamine acquisition, use, and distribution was to the DDMC as water is to an

aquarium” and “violence was used to . . . subdue those members who were contemplating

cooperating with law enforcement, . . . resolve disputes between members, to maintain discipline

within the DDMC . . . , to discourage defection, to confiscate property, . . . to promote the

DDMC’s self-advertised description as an ‘outlaw motorcycle club,’ and to further their industry

of manufacturing and distributing methamphetamine.” It then confirmed that Smith was

accountable for all of the racketeering acts of the DDMC that occurred while he was the National

President of the Club because

his continued leadership in the club stands for, at a minimum, an implicit if not in some ways explicit agreement to participate in the DDMC’s activities across the board.

-84- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

***

So I’m intending to confirm my provisional finding of my August 2018 order, which says in substance, with respect to the national leaders of DDMC especially, and the enforcers of its rules and bylaws, specifically including Defendant Smith, the Court provisionally found that there was virtually no criminal activity that occurred in the club of which they are not aware or did not sanction, encourage, expect, reward, and therefore, reasonably foresee. The activities are certainly within the scope of the criminal enterprise, in furtherance of it, I’m prepared to say here with finality well within the reasonable foreseeability of somebody such as Mr. Smith.

The court then took up Smith’s objections one-by-one and made several relevant conduct findings

as to acts of racketeering that Smith claimed were not reasonably foreseeable to him. We review

de novo whether conduct constitutes “relevant conduct” under Guidelines § 1B1.3(a)(1)(B), and

review for clear error the underlying factual findings regarding whether that conduct is “within the

scope” of, “in furtherance” of, and “reasonably foreseeable” in connection with jointly undertaken

criminal activity. United States v. Tocco, 306 F.3d 279, 284, 289 (6th Cir. 2002) (citation omitted).

On appeal, Smith broadly claims that the district court’s relevant-conduct findings were

not sufficiently “individualized and particularized” to explain why the racketeering acts were

attributable to him as relevant conduct. He does not however explain why the district court’s

findings undergirding the relevant conduct determination were clear error, nor does he specifically

challenge any of the court’s determinations.

The district court took up these issues one-by-one over about fifty transcript pages, and in

each instance, made the necessary findings to hold Smith accountable for the charged act of

racketeering. In the sole case Smith cites to support his relevant conduct argument, the entirety of

the district court’s analysis was limited to a statement that “[t]he court finds, based on the evidence

at trial and sentencing, that during Defendant’s involvement in the conspiracy, approximately

$449,000 was laundered and was reasonably foreseeable by Defendant.” United States v. Orlando,

-85- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

281 F.3d 586, 600 (6th Cir. 2002). We vacated that sentence because the court “did not make a

specific determination of when Orlando entered the conspiracy, nor did it indicate ‘the scope of

the criminal activity [he] agreed to jointly undertake.’” Id. at 600-01 (quoting U.S.S.G. § 1B1.3,

cmt. n.2). Here, the district court did far more to explain its reasoning, and certainly enough to

enable appellate review. Accordingly, Smith has not established that the district court’s sentence

was procedurally unreasonable.

Smith also argues that his within-Guidelines sentence was substantively unreasonable

because the district court “engaged in what could be described as belittling name-calling” and

ignored “his age (61), personal background, medical condition, and lack of a serious criminal

record.” We disagree. The district court considered Smith’s positive personal characteristics

briefly but concluded his “lengthy history” of presiding over the DDMC warranted a life sentence

to reflect the seriousness of the offenses, the need for general deterrence, and the need to protect

the public. The court also considered and rejected defendant’s suggestion that the Bureau of

Prisons would be unable to manage his medical conditions as justification for a lesser sentence.

The district court’s weighing of the § 3553(a) factors is “a matter of reasoned discretion, not math,”

so our review of a district court’s sentencing decision is “highly deferential.” Rayyan, 885 F.3d at

442. Thus, because the district court gave a reasoned decision for imposing a life sentence while

considering and rejecting Smith’s arguments for a lesser sentence, we conclude that the sentence

imposed was substantively reasonable.

Darrah was convicted of: (1) RICO conspiracy; (2) illegal gambling conspiracy;

(3) conspiracy to manufacture, distribute or possess with intent to distribute controlled substances;

-86- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

(4) distribution of methamphetamine; (5) witness tampering conspiracy; (6) VICAR against Scott

Perkins; and (7) conspiracy to obstruct justice. The district court calculated Darrah’s adjusted

offense level at 56, dropped it to the maximum offense level of 43, and determined his Guidelines

range to be life imprisonment. It then imposed a life sentence. Darrah challenges his sentence on

grounds that the district court’s drug-quantity finding violated Apprendi, as procedurally

unreasonable because the district court’s relevant conduct and drug-quantity findings were flawed,

and as substantively unreasonable.

Darrah first argues that the district court violated Apprendi by conducting routine drug-

quantity and relevant conduct fact-finding at sentencing. He is apparently under the impression

that it was the district court’s fact-finding that enhanced the statutory maximum for the RICO

conspiracy from 20 years’ imprisonment to life. The argument is meritless. As discussed above,

the jury made a special finding on Count 3 that the defendants had conspired to manufacture and

distribute 500 grams or more of a mixture or substance containing methamphetamine. That is a

life offense under 21 U.S.C. §§ 841(b)(1)(A)(vii) and 846. Accordingly, that special finding

served to elevate the maximum sentence under Count 1 to life, see United States v. Corrado, 304

F.3d 593, 608–09 (6th Cir. 2002), and it had nothing to do with the district court’s drug-quantity

finding at sentencing.

Darrah also challenges the district court’s relevant-conduct and drug-quantity findings. He

first contends that the district court clearly erred by holding him responsible for the Indiana

murders, which occurred before he became a fully patched member of the DDMC. Second, he

-87- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

asserts that the district court erred by relying on the chart the government had “cobbled together”

to establish the drug quantity attributable to him.

The district court considered and rejected Darrah’s relevant-conduct argument at the

sentencing hearing. It found that even if Darrah did not receive his patch until shortly after the

Indiana murders took place, they were reasonably foreseeable to him:

THE COURT: He knew a lot, and that, I think is illustrated by his rapid rise to national leadership responsibilities in the early 2000s/late 1990s. Did he know enough to have him attributable to him these murders? Defendant, through counsel, suggests that these were not ordinary club business murders.

I disagree. They were. It was all revolving around DDMC “property” being the motorcycle in question here, Wild Bill’s motorcycle. The cross dressing motivation for running him down the road is nothing more than an odd detail of background.

The principal point here is that he was, a decision was to separate him from the club, to run him down the road, to confiscate his motorcycle, and to use whatever force by whatever means may be necessary, to accomplish the criminal aim at issue.

He resisted. The motorcycle was retrieved from his possession, Wild Bill’s that is, and he got it back, right? He went and didn’t he steal it or repossess it back into his possession?

MS. MOHSIN, FOR THE GOVERNMENT: That’s correct. When they ran him down the road, his motorcycle was taken. He then went ahead and repoed it, or repossessed it himself, leading to—

THE COURT: From the clubhouse or from somebody’s private—

MS. MOHSIN: Letherman’s apartment I believe or premises. The motorcycle had been given to Letherman to use.

THE COURT: As, as exemplifying its DDMC property status, according to DDMC rules and regulations?

MS. MOHSIN: That’s correct, Judge. It was a practice to provide motorcycles and require the new prospects to pay the leadership for, you know, like kind of front them the motorcycle they had to pay back what was owed on the motorcycle to the club.

-88- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

THE COURT: The degree of knowledge exemplified in these things is typical of other testimony indicating the degree of knowledge and the intensity of knowledge that prospects were expected to know, at least by the time that they were eligible for full patched status.

Again, this is not Venus emerging fully formed. This is a process, and it’s a process that included more and more detail revelations, more and more assistance in criminal activities, more and more responsibility. And accordingly, more and more attributions of responsibility for specific acts.

A preponderance of the evidence demonstrates that the defendant should be held responsible for the Bausch and Thacker murders in the course of, and in the furtherance of, and was reasonably foreseeable to an individual at Defendant Darrah’s level of participation in the club at the time that these things were going on in Indiana, though, without direct participation of course, without his personal pre-knowledge, of course, but they were nonetheless reasonably foreseeable to a person in his position with his degree of knowledge. A preponderance of the evidence so demonstrates.

We cannot conclude that the district court’s factual finding that the Indiana murders were

foreseeable to Darrah was clearly erroneous. The district court heard considerable evidence

regarding the DDMC rules and prospecting process, and based on its understanding of the DDMC

enterprise, it determined that acts of violence—including murder—were foreseeable even to

members who had not received their full patch when the Club had to repossess one of “its”

motorcycles by force.

Darrah also claims that the district court’s drug-quantity finding attributing to him fifteen

kilograms of methamphetamine rendered his sentence procedurally unreasonable. The district

court largely relied on the Government’s Exhibit 1 to establish the drugs for which Darrah would

be held responsible. This chart, which was adapted from the government’s “sentencing treatise,”

pinned to Darrah low-end estimates of 23,055 grams of meth-mixtures, 19,129 grams of

ephedrine/pseudoephedrine, and 5,305 grams of “pure meth.” In converted drug weight that

equated to 344,222 kilograms of marijuana, well beyond the 90,0000 kilograms needed to establish

-89- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Darrah’s base offense level of 38. The district court endorsed the chart as “extremely well

supported by the evidence.” The court was entitled to rely on the government’s presentation and

the exhibit it proffered, which it found to be supported by the evidence. And upon review, the

chart sets forth specific examples of both Darrah’s personal involvement in the DDMC’s meth

enterprise, as well as examples which would be foreseeable to him. Accordingly, we conclude

that the district court did not render a procedurally unreasonable sentence by attributing clearly

erroneous drug quantities to Darrah.15

Darrah lastly challenges the substantive reasonableness of his life sentence. He argues

essentially that his medical conditions warranted a lesser sentence by downward departure from

the Guidelines range, and that the district court did not give due consideration to that factor in its

discussion of the § 3553(a) factors.

Our review of the sentencing transcript confirms that the district court acknowledged that

Darrah’s “health concerns” were “significant.” Yet it dismissed that rationale as a justification for

a lesser sentence because it did not “believe that the Bureau of Prisons [was] incapable of providing

appropriate medical treatment.” And it further observed that Darrah’s physical condition had not

inhibited him from being an “enthusiastic and gleeful participant” in the RICO enterprise, serving

as a “loyal lieutenant and a constant advisor” to Smith. The district court also found that Darrah

15 Darrah also makes a fleeting argument that he was improperly scored as a leader/organizer for conduct that occurred before he became the National Vice-President of the DDMC. Even if he is correct, Darrah’s adjusted offense level was far beyond the maximum adjusted offense level of 43. So regardless of the leadership enhancement Darrah received, his total offense level would not change, his Guidelines range remained life, and application of the enhancement could not have affected his substantial rights. See United States v. Cruz, 976 F.3d 656, 664 (6th Cir. 2020). -90- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

lacked remorse, based on his statement that “reveal[ed] no comprehension of the harm that he’s

assisted in doing to the community, no comprehension of the seriousness of the offenses with

which he’s been accused and proven guilty, and no concern for anyone residing in the law abiding

quadrant of society, now or in the future.” The court also opined that the “most salient factor” in

guiding its sentencing was “the seriousness of [the] offense conduct,” while also expressing a need

for general deterrence.

In short, the district court considered the § 3553(a) factors it found most relevant, explained

its disagreement with defendant’s argument for a lesser sentence based on his medical conditions,

and imposed a presumptively reasonable Guidelines sentence of life imprisonment. The deference

we owe to district courts to fashion an appropriate sentence counsels in favor of affirming Darrah’s

sentence. Rayyan, 885 F.3d at 442.

McKeoun was convicted of: (1) RICO conspiracy; and (2) conspiracy to manufacture,

distribute or possess with intent to distribute controlled substances. The district court calculated

McKeoun’s offense level at 50 by holding him accountable for all of the racketeering activity that

occurred while he was a patched member of the DDMC, and then reduced to 43 because it

represented one of “those rare instances where the total offense level is calculated in excess of 43

. . . [and thus was] treated as a level 43.” It then varied downward and imposed a 372-month

sentence. McKeoun challenges the district court’s relevant-conduct finding, a factual finding

rejecting his assertion that he cooked methamphetamine only for “personal use,” and the

substantive reasonableness of his sentence.

-91- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Like Darrah, McKeoun contends the district court erroneously calculated his Guidelines

range by including the Indiana murders as foreseeable relevant conduct.16 As an example for why

the murders were foreseeable to McKeoun, the district court noted “DDMC members who left the

club in bad standing were frequently required to surrender their motorcycles to the club, or have

their property taken by force and violence.” McKeoun was also “present” when Vandiver and two

other members stole a former member’s motorcycle. McKeoun is correct that he and another tried

to stop the theft, but we discern no clear error in the district court’s finding that his “com[ing] to

the aid of an individual who was being threatened and assaulted per standard operating procedure

of the Devils Diciples entity does not translate into a lack of awareness on his part that such things

would regularly happen to Devils Diciples members who ran afoul of the system.” See Tocco, 306

F.3d at 284.

McKeoun objected below to the PSR’s description of why the racketeering activity was

reasonably foreseeable to him. Part of his objections went to his claim that he only cooked

methamphetamine in small amounts for his own personal use. The district court disagreed:

The testimony at trial well supported the foreseeability of criminal activity generally, and repossession of motorcycles in particular, as well as the production of methamphetamine, which is the principal focus I think of this controverted item. Being a member of leadership, producing methamphetamine, and so forth, it’s an unsustainable assertion that he was a personal-use cook only. There is overwhelming evidence of his, the centrality of this figure in terms of producing for numerous others and for other chapters.

16 He also implies that because he was not a formal national “leader,” the district court improperly characterized him as such. But for decades, McKeoun played a significant role in the organization, even without an official title. -92- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

I recall also testimony that he always had at least an 8th of an ounce, an “8 ball” I think that’s called.

It’s not a personal use quantity. That’s a distribution quantity. And he shared with brothers, always was ready to give them, “a little bump,” if they needed it. I interpret that as being a hit of illegal drugs, methamphetamine. This objection is unfounded and is rejected.

McKeoun contends the district court clearly erred here for two reasons. First, he argues

that the trial testimony did not support the conclusion that he “always had at least . . . an 8 ball.”

And even if it did, he argues an 8-ball (an eighth of an ounce) is just a personal-use amount, not a

distribution level amount. The government does not respond to this point, but that does not

mandate reversal as McKeoun insists. See Kennedy v. City of Villa Hills, 635 F.3d 210, 214 n.2

(6th Cir. 2011). And reversal is not required here.

The government put forth such facts demonstrating this point in its sentencing

memorandum and McKeoun did not counter these facts:

David Roberts . . . advised that while living in Alabama, he became aware of the fact that Defendant and Little Dog were manufacturing meth and distributing it to DDMC members in Michigan. Defendant always had at least 1/8 ounce of meth on him at all times and frequently gave D. Roberts and others a “bump” whenever requested.

Whenever Defendant came to DDMC functions in Michigan from California, there was an influx of meth, and Defendant came to Michigan a couple times a year. When D. Roberts lived with Defendant at Jeff Arnold’s property in Alabama, Defendant frequently complained about the need to obtain Red Phosphorus and would disappear for 8-10 hours a day and return with freshly made, “wet” meth.

During this time, Defendant always carried approximately 1/4ounce of meth on his person. D. Roberts learned that Defendant was cooking at the underground meth lab on the property with Al [Mancini] and Jeff Arnold. Al brought D. Roberts into the lab to assist him with the manufacturing process once when Defendant and Arnold were unavailable.

-93- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Moreover, McKeoun advances no argument as to how this alleged error influenced the ultimate

sentence. Given the abundance of evidence supporting McKeoun’s role in facilitating the drug

trade on behalf of the DDMC, any error here would be harmless. See Cruz, 976 F.3d at 664.

McKeoun’s substantive-reasonableness challenge is equally meritless. When a defendant

attacks a below-Guidelines sentence as substantively unreasonable (as McKeoun does here), the

sentence is presumed reasonable and a “defendant’s task of persuading us that the more lenient

sentence [that he received] is unreasonably long is even more demanding.” United States v. Curry,

536 F.3d 571, 573 (6th Cir. 2008). He appears to claim the district court improperly weighed the

3553(a) factors and that the sentence was disproportionate, but other than listing facts in his favor

(namely his service in the military, family support post-conviction, and expressions of remorse),

McKeoun offers no argument as to why the district court misbalanced the factors. And upon

review of the sentencing transcript (which reflects that the district court balanced the enormity of

his offense conduct, his individual characteristics, and the interest of the public), nothing in the

record demonstrates the district court gave “an unreasonable amount of weight to any pertinent

factor.” United States v. Massey, 663 F.3d 852, 857 (6th Cir. 2011) (citation omitted).

Witort was convicted of: (1) RICO conspiracy; and (2) conspiracy to manufacture,

distribute or possess with intent to distribute controlled substances. The district court calculated

his offense level at 48 by holding him accountable for all of the racketeering activity that occurred

while he was a patched member of the DDMC, which it then reduced to 43. It then imposed a life

sentence. Witort now challenges the district court’s relevant-conduct finding as it relates to its

drug-quantity calculation and the substantive reasonableness of his sentence.

-94- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Like several others, Witort contends the district court erroneously attributed to him a drug-

quantity finding that elevated his base offense level to 38. He complains that the district court “did

not engage in an individualized analysis” when evaluating Witort’s relevant conduct. The record

belies this assertion.

The district court largely relied on Government Exhibit 1 to establish the drugs for which

Witort would be held responsible, which attributed to Witort low-end estimates of 23,615 grams

of meth-mixtures, and 5,305 grams of “pure meth.” In converted drug weight that equated to

354,342 kilograms of marijuana, well beyond the 90,0000 kilograms needed to establish Witort’s

base offense level of 38. The district court also found unpersuasive Witort’s position that there

were multiple drug-conspiracies and not one, concluding Witort “was involved with very large

quantities of precursors, and accordingly, massive quantities of produced drugs, he didn’t produce

them himself, but he shepherded the production . . . . I’m very well persuaded that the drug

amounts are easily well borne out here.” And what was said about Darrah’s identical challenge

above can be repeated here. The court was entitled to rely on the government’s presentation and

its exhibit, which set forth many specific examples of both Witort’s personal involvement in the

DDMC’s meth enterprise, as well as examples which were foreseeable to him. It therefore did not

render a procedurally unreasonable sentence by attributing drug quantities to Witort that led to his

base offense level of 38.

Witort argues his life sentence is substantively unreasonable because he “is [a] 68-year old

elderly man who lived in California for a good portion of his life, has substantial ties to his family,

and has no significant involvement with the DDMC since the early 2000’s.” But a review of the

-95- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

district court’s sentencing transcript reflects careful consideration of the two sides of Witort, with

an emphasis on the extreme severity of his crimes and the need for deterrence. It also explained

its disagreement with defendant’s argument for a lesser sentence based on his medical conditions

and imposed a presumptively reasonable within-Guidelines sentence of life imprisonment. The

deference we owe to district courts to fashion an appropriate sentence counsels in favor of

affirming Witort’s sentence here. Rayyan, 885 F.3d at 442.

Although Vandiver lists as an issue the procedural and substantive reasonableness of his

sentence, he does not make a substantive argument regarding either and instead just adopts the

arguments of McKeoun and Rich. Federal Rule of Appellate Procedure 28(i) permits the adoption

of other parties’ arguments, but a party seeking to preserve an issue through adoption must ensure

“that the arguments adopted must be readily transferable from the proponent’s case to the adopter’s

case.” United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996). And we cannot think of an

argument less susceptible to ready transfer than one concerning a defendant’s sentence. At its

core, a district court’s decision to impose a sentence requires “an individualized assessment based

on the facts presented.” Gall v. United States, 552 U.S. 38, 50 (2007); United States v. Perez-

Rodriguez, 960 F.3d 748, 756 (6th Cir. 2020) (“[S]entences must be fashioned on an individual

basis[.]”). Put differently, reviewing a district court’s sentence “is an individual, fact-specific

exercise that requires individual, fact-specific briefing.” United States v. Hough, 276 F.3d 884,

891 (6th Cir. 2002). Having only adopted McKeoun’s and Rich’s briefing without tailoring their

arguments to his individual circumstances, we find forfeited Vandiver’s sentencing challenge. Id.

-96- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Drozdowski was convicted of: (1) RICO conspiracy; (2) conspiracy to manufacture,

distribute or possess with intent to distribute controlled substances; (3) manufacturing

methamphetamine; (4) VICAR against Robert McClure; and (5) being a felon in possession of

ammunition. The district court calculated his base offense level at 34 based on its drug-quantity

finding attributing to him between 500 and 1.5 kilograms of “actual” methamphetamine. The court

then applied a series of enhancements to produce an adjusted offense level of 48, which combined

with Drozdowski’s Criminal History Category of V to produce a Guidelines range of life

imprisonment. The district court imposed a below-Guidelines sentence of 456 months’

imprisonment—420 months on the RICO and meth convictions and a consecutive 36-month

sentence for VICAR.

Drozdowski’s first procedural argument is that the district court’s drug-quantity finding

attributing to him 1.5 kilograms of methamphetamine was clearly erroneous. But as the

government points out, the jury found beyond a reasonable doubt that Drozdowski was responsible

for at least 50 grams (or 500 grams of a mixture) of methamphetamine. If the district court had

used that quantity and attributed no additional methamphetamine to Drozdowski, his base offense

level would have been 30, and the sentencing enhancements—which Drozdowski does not

challenge on appeal—would raise his offense level to 44. An offense level of 44 would have

produced the same Guidelines range of life imprisonment. So even if Drozdowski’s lengthy

critique of the district court’s drug-quantity calculation has merit, the error is harmless because it

ultimately could not affect the sentence. See Cruz, 976 F.3d at 663.

-97- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Drozdowski also claims that the district court made clearly erroneous factual findings

regarding his assault of McClure.

At the close of the sentencing hearing, the district court imposed a consecutive 36-month

sentence upon Drozdowski for his assault of McClure, on top of the 420-month sentence imposed

on RICO and drug offenses. It remarked that McClure “walked only with [the] aid of a cane” and

Drozdowski had “put the man down, . . . knocked him out, fractured his jaw, fractured his skull,

[and] rendered him unconscious.” The district court professed that it could not “express adequately

how shocking and horrifying that act was. It deserves harsh punishment, and I have attempted to

impose it here.” Evidence adduced at Drozdowski’s trial establishes that McClure’s skull was not

fractured—though he did suffer a fractured jaw and cheekbone. Thus, the district court’s factual

findings relating to the assault of McClure were at least partially in error.

Nevertheless, we conclude that the district court’s error does not require remand because

the record as a whole establishes “that the error did not affect the district court’s selection of the

sentence imposed.” See United States v. Williams, 503 U.S. 193, 203 (1992). It is apparent from

our review of the sentencing transcript that the district court would have imposed the same 36-

month consecutive sentence whether Drozdowski managed to fracture McClure’s skull or only

inflicted the other severe injuries. In other words, even if we set that erroneous fact aside, the tenor

of Drozdowksi’s vicious “sucker punch” remains the same, and it still left McClure unconscious,

on the floor, with a broken jaw. Accordingly, the district court’s erroneous factual finding as to

the specific nature of McClure’s injuries did not affect Drozdowski’s substantial rights and we

thus disregard it as harmless error. See id.

-98- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Drozdowski also argues that his below-Guidelines sentence was substantively

unreasonable because the district court did not place much stock in a chart he provided that

purported to show lesser sentences that similar offenders involved in motorcycle gangs had

received. He says that it was unreasonable for the district court to view him as “fairly unique”

because all he did was make “some quantity of methamphetamine” and “punch[] some people.”

We find his argument markedly unpersuasive.

Drozdowski, like McKeoun, faces a decidedly uphill battle by challenging the substantive

reasonableness of his below-Guidelines sentence. See Curry, 536 F.3d at 573. We first conclude

that the district court expressed legitimate reasons for declining to rely on the chart of similar

offenders that Drozdowski produced; the court knew nothing about the other individuals other than

that they were involved in “motorcycle gang kind of activities” and had no information regarding

their criminal history or individual sentencing characteristics. Accordingly, when the court

weighed the § 3553(a) factors, it did not abuse its discretion by giving little weight to avoiding

sentencing disparities among allegedly similar defendants and focusing instead on Drozdowski’s

criminal history, the nature and seriousness of the offense conduct, and the need for general and

specific deterrence—particularly in light of the below-Guidelines sentence it imposed. We thus

affirm the sentence imposed by the district court.

Michael Rich was convicted of: (1) RICO conspiracy; (2) conspiracy to obstruct justice;

(3) subornation of perjury; and (4) obstruction of justice. Based on an offense level of 43 (adjusted

downward from 48), the district court calculated Rich’s Guidelines range as life imprisonment.

The district court however granted a downward variance and sentenced Rich to 360 months’

imprisonment.

-99- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

Rich first challenges the district court’s determination that the Box Canyon incident was

relevant conduct. But even if he prevails, he has not challenged any aspect of the district court’s

Guidelines calculation based on the DDMC’s meth trafficking. The PSR establishes that based on

drug weight alone, Rich’s offense level would have been 43. Therefore, even if he is correct that

the Box Canyon incident should not have been attributed to him as relevant conduct, it would not

have changed his Guidelines range. Thus, any error in attributing the Box Canyon incident to Rich

as relevant conduct was harmless, and we need not delve further into the district court’s relevant-

conduct inquiry. See Cruz, 976 F.3d at 663–64.

Rich also claims that he was punished for exercising his right to a jury trial, based on a line

of questioning the district court engaged in during the sentencing hearing. This claim is subject to

plain-error review because Rich did not object below. Vonner, 516 F.3d at 385. We have reviewed

the transcript of Rich’s sentencing and seeing nothing to suggest that Rich was punished for

exercising his right to trial-by-jury. While it is true that the court inquired as to plea negotiations,

that is not impermissible per se. See United States v. Daneshvar, 925 F.3d 766, 788–90 (6th Cir.

2019). Thus, we see no error, let alone plain error, in the district court’s inquiry.

Finally, Rich claims that his below-Guidelines sentence is substantively unreasonable

because the district court did not give enough weight to his military service, disability, and health

problems and instead used a “one size fits all” approach to sentencing. By attacking the substantive

reasonableness of his below-Guidelines sentence, Rich must persuade us “that the more lenient

sentence [that he received] is unreasonably long.” Curry, 536 F.3d at 573. But the district court

-100- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

gave a reasoned decision that expressly accounted for mitigating factors like Rich’s military

service and medical conditions. It nevertheless concluded that a sentence of 360 months’

imprisonment was sufficient, but not greater than necessary based on recognition of the seriousness

of the offense, general deterrence, and the need to protect the public from further crimes of the

defendant. That is the essence of a substantively reasonable sentence. See Rayyan, 885 F.3d at

442.

Victor Castano was convicted of: (1) RICO conspiracy; (2) conspiracy to manufacture,

distribute or possess with intent to distribute controlled substances; (3) conspiracy to obstruct

justice; (4) subornation of perjury; (5) obstruction of justice; and (6) conspiracy to possess with

intent to distribute marijuana. At sentencing, the district court calculated Castano’s offense level

as 41 after applying several offense-characteristic enhancements, which combined with Castano’s

Criminal History Category of II to produce a Guidelines range of 360 months’ imprisonment to

life. The district court granted Castano’s request for a downward variance and imposed a sentence

of 336 months’ imprisonment. On appeal, Castano challenges the procedural and substantive

reasonableness of his sentence on many grounds, including the application of three sentence

enhancements for specific offense characteristics. In our published opinion, we held that the

district court properly applied an enhancement for maintaining a drug premises to Castano under

U.S.S.G. § 2D1.1(b)(12). We now consider his arguments concerning the remaining sentencing

enhancements, as well as the overall procedural and substantive reasonableness of his sentence.

First, Castano maintains that the district court erroneously held him accountable for 1,129

grams of pseudoephedrine, which had a marijuana equivalency of 11,290 kilograms and resulted

-101- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

in a base offense level of 34 for the grouped narcotics convictions. The district court’s calculation

was based on a spreadsheet that was admitted into evidence during trial. That chart identified

numerous persons associated with the DDMC enterprise that had purchased pseudoephedrine in

retail stores to be used in methamphetamine cooks (as well as the amounts they had purchased).

Castano argues that he should not be held accountable for the pseudoephedrine because he

was acquitted by the jury of possessing methamphetamine precursors and/or because the full scope

of the pseudoephedrine-buying ring was not reasonably foreseeable to him. That Castano was

acquitted of possessing methamphetamine precursors is not dispositive of the issue because

acquitted conduct may be used in sentencing so long as the district court finds the relevant facts

by a preponderance of the evidence. United States v. White, 551 F.3d 381, 383 (6th Cir. 2008) (en

banc). Moreover, Castano’s personal possession of pseudoephedrine is irrelevant to the drug-

quantity finding if the purchases made by others were within the scope of the conspiracy and

reasonably foreseeable to Castano. See U.S.S.G. § 1B1.3(a)(1)(B). And they certainly were. The

district court found that Castano was responsible under relevant conduct principles for all DDMC-

related meth activities that occurred while he was a full member—from 2003 through 2012. In

that time, Castano was heavily involved in the meth trade; he was part of the group actively

manufacturing and distributing it. As the government observes, Castano, his girlfriend, and several

of his associates made pseudoephedrine purchases for the purpose of manufacturing meth.

Accordingly, even if Castano did not know every person who purchased pseudoephedrine for the

Club’s meth cooks, it was reasonably foreseeable to him that other members of the organization

were acquiring it either in exchange for the finished product or for money. Accordingly, the district

court’s factual finding that Castano was responsible for 1,129 grams of pseudoephedrine was not

-102- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

clearly erroneous, and on that basis alone, Castano’s drug equivalency was greater than 10,000

kilograms of marijuana, which resulted in a base offense level of 34.

After determining Castano’s base offense level, the court applied the previously discussed

enhancement for maintaining a drug-involved premises and two additional enhancements for

possession of a dangerous weapon under U.S.S.G. § 2D1,1(b)(1) and endangering others under

U.S.S.G. § 2D1.1(b)(14)(C)(ii). Based on these three enhancements, the court calculated

Castano’s total offense level at 41. We now take up Castano’s challenges to the remaining two

enhancements.

The court found that a three-level enhancement for endangering others applied because it

found that it was reasonably foreseeable to Castano that Drozdowski would carelessly dispose of

chemical byproducts from his meth cook by dumping them in the trailer park where he produced

the meth, resulting in a substantial risk that the environment would be harmed. Castano now claims

that the district court erred by not applying the four-prong test from United States v. Davidson,

409 F.3d 304, 313 (6th Cir. 2005), and by not making particularized findings to establish that

Drozdowski’s conduct was reasonably foreseeable to him. But Castano waived the former

argument by stating “I believe the Court has addressed the factors under the Davidson case.”

Furthermore, the district court’s factual finding of reasonable foreseeability was adequately

supported, such that it was not clearly erroneous. The court stated, “[I]t’s a reasonable

foreseeability analysis. Mr. Castano is wise enough and experienced enough to know that his

association with Devils Diciples is going to implicitly convey the knowledge to him of these things

that are being done and the creation of methamphetamine, its possession, its use, its distribution

and so forth.” Accordingly, we affirm the application of this enhancement to Castano.

-103- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

We likewise affirm the application of the enhancement for possession of a dangerous

weapon. Castano claims that the enhancement was improper because “the Sixth Circuit rejects

guilt by association and rejects ‘the fiction that a firearm’s presence always will be foreseeable to

persons participating in illegal drug transactions.’” However, we conclude that the district court’s

finding that “firearms were part and parcel of the DDMC operating regime” was not clearly

erroneous. There was ample testimony discussing the use and possession of firearms by DDMC

members at trial, and the district court specifically recalled at Castano’s sentencing testimony that

there were “circumstances in which members were required to arm themselves out of the back of

the traveling armory . . . when going to various events.” Accordingly, this is not a case—as

Castano would have us believe—where the mere fact that the defendant was “involved in the drug

trade” was used to establish that the presence of a firearm was reasonably foreseeable to him. See

United States v. Woods, 604 F.3d 286, 291–92 (6th Cir. 2010).

For these reasons, we conclude that Castano’s sentence was procedurally reasonable. The

district court properly calculated Castano’s base offense level by determining the drug-quantity

for which he should be held responsible, and it correctly applied the sentencing enhancements at

issue here to reach Castano’s adjusted offense level.

Castano makes no developed argument regarding the substantive reasonableness of his

below-Guidelines sentence, which, again, is presumed reasonable. Vonner, 516 F.3d at 389–90.

In any event, the district court outlined the § 3553(a) factors at the sentencing hearing and

-104- Nos. 18-2268, 18-2269, 18-2323, 18-2324, 18-2342, 18-2364, 18-2365, 18-2401, 18-2407,18- 2408, 18-2410, 19-1028, 19-1029, United States v. Rich, et al.

explained its decision. We see no basis to vacate Castano’s sentence as substantively

unreasonable.

V.

For these reasons and those set forth in the published opinion, we affirm defendants’

convictions and sentences.

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