United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT NORWOOD'S MOTION FOR NEW TRIAL (Dkt. 744/762), DEFENDANT GILLS'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, IN THE ALTERNATIVE, FOR A NEW TRIAL (Dkt. 736), AND DEFENDANT JONATHAN WALKER'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR A NEW TRIAL (Dkt. 735), and REJECTING THE ARGUMENTS RAISED IN NORWOOD'S SUPPLEMENTAL BRIEF (Dkt. 732)
MARK A. GOLDSMITH, District Judge.
Now before the Court are various post-trial motions filed by Defendants in this case: Defendant Alexandra Norwood's Motion for New Trial (Dkts. 744/762),  Defendant Leon Gills's Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial (Dkt. 736), and Defendant Jonathan Walker's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial (Dkt. 735). Defendant Norwood also filed a Supplemental Brief in Support of Motion for Judgment of Acquittal (Dkt. 732). The Government filed a consolidated response to these filings (Dkt. 752), and Defendants Norwood and Gills filed replies (Dkts. 756 and 757, respectively).
The Court concludes that oral argument would not assist with resolution of the instant motions and the arguments raised in Norwood's supplemental brief. See E.D. Mich. Local Criminal Rule 12.1; E.D. Mich. Local Rule 7.1(f)(2). For the reasons described below, the Court denies the motions (Dkts. 744, 762, 735, 736) and rejects the arguments raised in Norwood's supplemental brief (Dkt. 732).
The facts of this case have been fully set forth in the numerous decisions issued in this case, and need not be repeated in full here. For an extensive summary of the facts, see the following Opinions and Orders: United States v. Norwood, No. 12-20287, 2013 WL 5965328 (E.D. Mich. Nov. 8, 2013) (regarding Norwood's motion to dismiss); Memorandum Opinion Granting the Government's Motion for the Admission of Coconspirator Statements (Dkt. 784); and Opinion and Order Denying Defendants' Motions for Judgments of Acquittal (Dkt. 785).
To the extent there are particular facts relevant to a specific argument raised in the instant motions, the Court will discuss those facts in detail in the relevant sections below. For ease of reference, however, the Court provides a brief factual overview of the case:
The Howard Boys - also known as Hot Boys, Murda Ville, MV, Howard Estate Hustlers, 858, and MV/HB - were a neighborhood street gang based out of the Howard Estates, a public housing complex in Flint, Michigan. Members identified themselves and the gang through various hand signs, tattoos, graffiti, rap lyrics, and photographs on social networking websites.
Members of the Howard Boys sold drugs within what they believed to be their exclusive territory; outsiders were not permitted to sell drugs within these boundaries. To enforce this rule, members committed acts of violence against those whom they perceived to be wrongfully selling in their territory. They also committed acts of violence against people who they believed had disrespected them and against members of a rival neighborhood gang, T-Hood. Howard Boys members were expected to retaliate against slights with acts of violence, and members supported one another with these violent acts. According to one former member, committing retaliatory violent acts was important for maintaining a reputation for violence so as to dissuade others from trying to interfere with the Howard Boys and their drug-selling territory. Violence also served as a way for members to garner respect from other members.
Although members of the Howard Boys did not generally pool their profits from individual members' drug selling, they did assist each other with sales and protecting the selling territory. For example, members would warn others about police or a rival gang's presence in the area, take turns selling, and sometimes share sales in "five off the dub" transactions - a deal in which one individual provides drugs to another individual who has a customer, in exchange for a portion of the sale proceeds.
Before trial, six coconspirators pled guilty to racketeering conspiracy due to their association with the Howard Boys. At trial, five of the remaining Defendants - Norwood, Jatimothy Walker, Jonathan Walker, Oldham, and Gills -were convicted of racketeering conspiracy. One Defendant, Jamil Cureton, was acquitted of this charge. The jury also convicted Norwood, Jatimothy Walker, Jonathan Walker, Oldham, and Gills of various other crimes, including murder in aid of racketeering (Norwood, Jatimothy Walker, Jonathan Walker, and Oldham), attempted murder in aid of racketeering (Jonathan Walker, Oldham, and Gills), use and discharge of a firearm during and in relation to a crime of violence (Jonathan Walker, Oldham, and Gills), distribution of cocaine base (Oldham), possession of a firearm with an obliterated serial number (Oldham), possession of an unregistered firearm (Oldham), and dealing in firearms without a license (Oldham). The jury acquitted Gills of one count of use and discharge of a firearm during and in relation to a crime of violence, relating to the attempted murder of Charles Orr.
Op. and Order Denying Defendants' Motions for Judgments of Acquittal at 2-4.
Defendants subsequently filed the instant post-trial motions, pursuant to Federal Rules of Criminal Procedure 29(c) and 33.
III. RULE 29 AND RULE 33 STANDARDS
The standards for deciding a motion brought pursuant to Rule 29 are clear:
When considering a Rule 29 motion for a judgment of acquittal, the Court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). "Circumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt." Id . (quoting United States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996)). Furthermore, the Court must "draw all available inferences and resolve all issues of credibility in favor of the jury's verdict." United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001). The granting of a motion to acquit should be "confined to cases where the prosecution's failure is clear." Keeton, 101 F.3d at 52 (6th Cir. 1996) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
United States v. Blanchard, No. 05-80355, 2008 WL 3915007, at *1 (E.D. Mich. Aug. 20, 2008). As Defendants recognize, a defendant "bears a very heavy burden" in a challenge to the sufficiency of the evidence. United States v. Davis, 577 F.3d 660, 671 (6th Cir. 2009) (quotation marks and citation omitted).
Federal Rule of Criminal Procedure 33 allows a court, "[u]pon the defendant's motion, " to "vacate any judgment and grant a new trial if the interest of justice so requires." The Sixth Circuit has stated that "[t]he rule does not define interest of justice' and the courts have had little success in trying to generalize its meaning." United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (quotation marks, brackets, and citation omitted). However, case law has established certain grounds for granting a new trial, which include: (i) the jury verdict was "against the manifest weight of the evidence" or (ii) substantial legal errors or omissions occurred. Id. at 373-374. The grant or denial of a new trial is within the district court's discretion. Id. at 366 (noting that the Sixth Circuit reviews "a district court's decision to grant or deny a Rule 33 motion for abuse of discretion"); see also United States v. Hoffa, 382 F.2d 856, 862 (6th Cir. 1967) ("[G]ranting or refusing to grant such motions rests within the sound discretion of the District Court and its action must stand in the absence of a clear showing of abuse of discretion."). The defendant bears the heavy burden to show that a new trial is warranted. United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994).
The Court will first address the arguments raised in Norwood's supplemental brief: (i) the insufficiency of the evidence on Count Two; (ii) the unconstitutional vagueness of the Violent Crimes in Aid of Racketeering statute ("VICAR"), 18 U.S.C. § 1959, as applied to Count Two; and (iii) the unconstitutionality of the VICAR statute, as applied to Count Two, under the Commerce Clause. Next, the Court will address Norwood's Motion for New Trial, which raises claims regarding: (i) jury intimidation; (ii) the admission of Defendant Gills's rap lyrics; (iii) jury instructions about the definition of an "enterprise"; and (iv) the effectiveness of the limiting instructions that were given to the jury.
The Court then addresses Gills's motion, which makes arguments regarding: (i) the sufficiency of the evidence regarding the existence of the enterprise and Gills's participation in it; (ii) the sufficiency of the evidence on Counts Eight and Thirty-Five; and (iii) the Court's response to a jury question about aiding and abetting. Finally, the Court reviews the arguments raised in Jonathan Walker's motion: (i) the sufficiency of the evidence on Count Three; (ii) whether severance from Gills was required; and (iii) whether the Court erred in admitting statements that Jonathan Walker gave to Government agents as part of a proffer agreement with the Government.
A. Defendant Norwood's Supplemental Brief (Dkt. 732)
1. VICAR Motive - Count Two
In his supplemental brief in support of the motion for judgment of acquittal that was filed at the close of the Government's case-in-chief, Norwood first reiterates his arguments regarding the lack of evidence sufficient to satisfy the motive requirement under VICAR, 18 U.S.C. § 1959, for Count Two: regarding the murder of Jonathan Parker. Norwood Supp. Br. at 2-6. Norwood claims that the evidence at trial "supports only the conclusion that the shooting was done for money. It permits nothing more than guesswork to even suggest that the shooting was done for the purpose of Norwood increasing his status in the Howard Boys." Id. at 4. Norwood also argues - without citation to any case authority - that, to establish motive, the evidence must reveal the defendant's state of mind "before the event, not reactions of others to the event after the fact." Id. at 5-6.
The Court addressed and rejected this same argument in its Opinion and Order Denying Defendants' Motions for Judgments of Acquittal, and does so again here for the same reasons. Indeed, the Court included citation to case authority suggesting that the reactions of others to the violent act can be relevant in inferring the defendant's state of mind. See Op. and Order Denying Defendants' Motions for Judgments of Acquittal at 20, 22-23 (citing United States v. Rubi-Gonzales, 311 F.Appx. 483, 486 (2d Cir. 2009); United States v. Mayes, Jr., No. 12-385, 2014 WL 3530862, at *8 (E.D.N.Y. July 10, 2014)).
To the extent other Defendants seek to join in this argument with respect to their individual VICAR convictions, the Court addressed each of the VICAR convictions in its previous Opinion and Order. Defendants raise no new arguments in their notices of joinder. Accordingly, the Court rejects the claim that the Government did not sufficiently prove the necessary VICAR motive for each count.
2. VICAR Statute's Constitutionality As Applied to Count Two
Norwood raises for the first time in his supplemental brief two additional claims, both regarding the constitutionality of the VICAR statute as applied to his VICAR conviction. Norwood Supp. Br. at 6-13. First, Norwood claims that he was not provided fair notice that the shooting of Parker would constitute a federal offense. Id. at 6-10. Second, Norwood asserts that the VICAR statute, as applied here, exceeds Congress's authority under the Commerce Clause. Id. at 10-13. The Court examines each argument in turn.
i. Notice Requirement
Norwood first argues that, in light of the broad definition of "enterprise" used in this case, the application of the VICAR statute to the murder of Jonathan Parker was unconstitutional due to vagueness. Norwood Supp. Br. at 6-10. Specifically, Norwood claims that "[t]he application of [VICAR] along with RICO enterprise as defined in Boyle v. United States, 556 U.S. 938, 946 (2009), to make Norwood criminally responsible for a state murder offense, based on the VICAR element that only requires proof that his motive was to increase his status in a loosely defined RICO enterprise - one that requires no status - is unconstitutional in this case." Id. at 6-7. Norwood argues that neither VICAR nor RICO "provides notice of the kind required by the constitution that a street crime, the homicide of Jonathan Parker, based on the facts presented in Norwood's trial, comes within their scope." Id. at 9. Therefore, Norwood suggests the VICAR statute, as applied here, is void for vagueness. Id. at 9-10. He asserts that this constitutes a violation of the Due Process Clause. Id.
Under the United States Constitution, "a criminal statute must give fair warning of the conduct that it makes a crime." Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). The "void-for-vagueness" doctrine thus requires that a penal statute "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Accordingly, a law fails to satisfy the Due Process Clause of the Constitution "if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits...." Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966). Where, as here, "the first amendment is not implicated, a void for vagueness' challenge must be unconstitutional as applied to the defendant and must be examined in light of the facts of the case at hand.'" United States v. Levy, 904 F.2d 1026, 1032 (6th Cir. 1990) (quoting United States v. Barnes, 890 F.2d 545, 552 (1st Cir. 1989)).
As relevant here, the VICAR statute provides as follows:
Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished -
(1) for murder, by death or life imprisonment, or a fine under this title, or both....
18 U.S.C. § 1959(a)(1). The statute defines "racketeering activity" as meaning the same as under 18 U.S.C. § 1961(1), and "enterprise" as including "any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce." 18 U.S.C. § 1959(b).
Norwood challenges the VICAR statute as unconstitutionally vague as applied to the murder of Jonathan Parker. He claims that the statute does not put a reasonable person on notice that this "street crime" would come within the statute's scope, particularly given the non-hierarchical nature of the alleged enterprise. Norwood Supp. Br. at 7, 9-10. In other words, Norwood claims that with such a loose "assortment of individuals, " without any discernible hierarchy, the "maintaining or increasing position" requirement of the VICAR statute is unconstitutionally vague as applied to Count Two. Norwood cites no authority discussing the VICAR statute in the context of an as-applied vagueness challenge. Nevertheless, the Court concludes that the statute is not unconstitutionally vague as applied here.
First, Norwood's argument relies on his inaccurate view of the evidence. Norwood claims that the evidence offered at trial was that "of a non-hierarchical assortment of individuals, who happened to be relatives or friends, and who were commonly engaged in the drug trade within a geographic subdivision of Flint, Michigan. Their purported enterprise purpose was nothing more than that the enterprise associates were to watch each others' backs.'" Norwood Supp. Br. at 7. But the evidence revealed much more than that. Although members may not have pooled their profits from drug sales, the evidence at trial revealed an identifiable group that worked together to enforce an exclusive territory - maintained by developing a reputation for violence - in which only members and associates were permitted to sell drugs. The evidence also showed that members would help one another with sales, including warning of police presence, taking turns selling, and sometimes sharing customers and drugs. This is more than a random assortment of individuals who simply "watch[ed] each others' backs."
Second, the Court is not persuaded by Norwood's suggestion that the non-hierarchical nature of the enterprise and corresponding lack of officially defined roles means that VICAR's "maintaining or increasing position" language failed to provide adequate notice that the murder of Jonathan Parker could fall within the statute's purview. This argument assumes that maintaining or increasing a "position" requires a formalized rank or title. In other words, Norwood's claim presupposes that the word "position" cannot mean a more informal "status" or "reputation." See Norwood Reply at 3 ("Norwood... has argued that the application of [VICAR] along with RICO enterprise as defined in Boyle v. United States, 556 U.S. 938, 946 (2009), to make Norwood criminally responsible for a state murder offense based on the [VICAR] element that only requires proof that his motive was to increase his status in a loosely defined RICO enterprise - one that requires no status - is unconstitutional in this case." (emphasis added)).
That argument has been rejected by other courts. For example, in United States v. Whitten, 610 F.3d 168, 180 (2d Cir. 2010), the defendant argued that maintaining or increasing his gang "status" was not a purpose that fell within the category of qualifying statutory motives. The Second Circuit rejected this argument, noting that "in ordinary usage the words [position and status] are synonyms, and in the dictionary they reference each other." Id . For example, according to Webster's Third New International Dictionary Unabridged, the term "position" means "social or official rank or status." Id . Accordingly, in upholding the VICAR conviction, the Second Circuit concluded that it did not matter "that the [alleged enterprise] did not promote by grade in a ramified hierarchy." Id . Other courts have followed this same reasoning in upholding VICAR convictions. See, e.g., United States v. Banks, 514 F.3d 959, 970 (9th Cir. 2008) ("[F]ormal recognition by an organization's hierarchy has never been required to establish the purpose element of the VICAR statute [T]he evidence is sufficient for a VICAR conviction even if, for example, the jury could reasonably infer no more than that Banks acted out of concern for his status in the eyes of his little homies' within the gang, or his reputation among other gang members generally."); see also United States v. Heilman, 377 F.Appx. 157, 204-205 (3d Cir. 2010) (listing different types of evidence that courts have considered sufficient for purposes of satisfying VICAR, including testimony "that members acted to enhance their reputation generally or in the eyes of a specific faction or individual, about the violent nature of the organization, ... and acknowledging the importance of maintaining status").
Indeed, there are many reasons why an individual may seek to maintain or increase his status in the enterprise, independent of trying to either maintain or move up in formalized rank. For example, members of an enterprise engaged in the drug trade may seek to maintain or increase a reputation for violence to dissuade potential intruders from interfering with the member's and other group members' drug sales within the protected territory. Testimony at trial revealed this to be a particularly important attribute to the Howard Boys, and it also revealed that the victim here - Jonathan Parker - had been causing problems for Eddie Williams, an associate of the group and drug supplier for some of its members. See X. Turner Vol. I at 33-34, 75-82, 116; X. Turner Vol. II at 11-13; E. Williams Vol. I at 7-8.
Further, even if the enterprise did not include a formal rank structure at the time of the crime, the assailant may be seeking to cement his reputation for the future, in case such a formalized system is implemented. To that end, Norwood's statement that he had to calm down the younger members suggests that he did ultimately view himself in an authority role. T. Sondgeroth, 6/16/2014 (Rough Tr.) at 110. Finally, members may desire to prove their continued worth to the group and/or individual members, even if that will not necessarily result in a rise in rank. For example - to put it in a workplace context - employees may continue to produce outstanding work product, even if there are no prospects for official promotion, so as to maintain a positive reputation or status among their colleagues. The same may hold true for street gang members. Banks, 514 F.3d at 970. Indeed, Xavier Turner testified that members of the group gained respect based on their reputation for violence and ability to sell drugs. X. Turner Vol. I at 33-34. All of these are ...