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United States v. Mathis

United States District Court, W.D. Virginia, Charlottesville Division

September 23, 2016

UNITED STATES OF AMERICA
v.
DANIEL LAMONT MATHIS, et al, Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad, Chief United States District Judge.

         Following a seventeen-day jury trial in February of 2016, Daniel Lamont Mathis, Shantai Monique Shelton ("Shantai"), Mersadies Lachelle Shelton ("Mersadies"), and Kweli Uhuru ("Kweli") were convicted of numerous offenses, including conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d); kidnapping and murder in aid of racketeering, in violation of 18 U.S.C. § 1959; murder of a witness, in violation of 18 U.S.C. § 1512(a)(1)(C); and related firearm offenses, in violation of 18 U.S.C. § 924(c). On September 19, 2016, the parties appeared before the court for a post-trial motions hearing. This memorandum opinion sets forth the court's rulings on the following motions: (1) the motion to dismiss Counts Thirty and Thirty-One of the superseding indictment filed by Mathis; (2) the joint motion for judgment of acquittal or a new trial filed by Mathis and Kweli; (3) the motion for new trial filed by Kweli; and (4) the supplemental motion for judgment of acquittal filed by Mathis and Kweli.

         I. Motion to Dismiss Counts Thirty and Thirty-One

         On February 2, 2016, after the jury was empaneled and sworn, Mathis moved to dismiss Counts Thirty and Thirty-One of the superseding indictment for failure to state an offense. Mathis argued that Count Thirty, charging murder of a witness in violation of 18 U.S.C. § 1512(a)(1)(C), should be dismissed as defective because it did not allege that the victim of the murder, Kevin Quick, was killed to prevent him from communicating "to a law enforcement officer . . . of the United States" information relating to the commission or possible commission of a federal offense. 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Instead, Count Thirty alleged that the defendants killed Quick "with the intent to prevent communication by Kevin Quick to a law enforcement officer information relating to the commission of or possible commission of a federal offense . . . ." Dkt. No. 221 at 40-41. Mathis further argued that the related § 924(c) count charged in Count Thirty-One "must be dismissed as well" since "Count Thirty fails to state a federal offense." Dkt. No. 664 at 4.

         The court denied the motion in open court on the basis that it was untimely. During the hearing on the defendants' post-trial motions, Mathis reasserted the same arguments. For the reasons that follow, the court remains convinced that the motion to dismiss Counts Thirty and Thirty-One must be denied as untimely.

         Under the current version of Rule 12 of the Federal Rules of Criminal Procedure, which went into effect on December 1, 2014, "a defect in the indictment or information, including . . . failure to state an offense" must be raised "by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3).[1] The court may set a deadline for the filing of pretrial motions, and it may reset the deadlines at any time prior to trial. Fed. R. Crim. P. 12(c)(1)-(2). Otherwise, "the deadline is the start of trial." Fed. R. Crim. P. 12(c)(1). "If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely." Fed. R. Crim. P. 12(c)(3). A district court "may consider" an untimely motion only if the movant "shows good cause." Id.; see also United States v. Soto, 794 F.3d 635, 648 (6th Cir. 2015) (explaining that Rule 12(c)(3) governs a district court's ability to review an untimely motion).

         In this case, the court set January 4, 2016 as the deadline for filing pretrial motions. See Dkt. No. 598 at ¶ 3. That deadline was not extended or reset prior to trial. Although Mathis moved to dismiss other counts of the superseding indictment on January 4, 2016, he did not file the instant motion until February 2, 2016, after the jury had been sworn and jeopardy had attached. See Baum v. Rushton, 572 F.3d 198, 206 (4th Cir. 2009) ("In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn."). Accordingly, the motion to dismiss Counts Thirty and Thirty-One was untimely.[2]

         Moreover, the court remains convinced that Mathis did not establish "good cause" to excuse his untimely filing. Mathis's counsel acknowledged that he was aware of the alleged defect prior to trial, and that he withheld the motion until after jeopardy attached in hopes of using it as a bargaining chip in negotiating a plea agreement with the government. This strategic move on the part of counsel does not amount to good cause. See United States v. Ramirez, 324 F.3d 1225, 1228 n. 8 (11th Cir. 2003) (holding that the defendants were unable to establish good cause where they "were clearly prepared to file their motion earlier, but decided to withhold it in order to seek a strategic advantage by waiting until jeopardy attached upon the swearing in of the jury"). Nor does the fact that some of the other defense attorneys were unaware of the alleged defect until after the motion to dismiss was filed. See United States v. Brandon, 636 F.App'x 542, 547 (11th Cir. 2016) ("Failure or inadvertence of counsel to timely file a motion . . . does not constitute good cause."); see also United States v. Ruhe, 191 F.3d 376, 386-87 (4th Cir. 1999) (holding that there existed no good cause to raise an untimely suppression motion where the defendant could have with due diligence discovered the information necessary to raise the issue); United States v. Nursey, No. 2:15-CR-112-WKW, 2015 U.S. Dist. LEXIS 154410, at *6 (M.D. Ala. Aug. 7, 2015) (holding that a defendant failed to establish good cause for the untimely filing of his motion to dismiss the indictment since the defendant's "arguments relating to the indictment's alleged failure to state an offense could have been timely raised had counsel considered the indictment and [the applicable statute] at the time of defendant's indictment and arraignment").

         For these reasons, the court declines to consider the merits of the motion to dismiss Counts Thirty and Thirty-One for failure to state an offense. That motion, in which other defendants joined, will be denied as untimely.

         II. Joint Motion for Judgment of Acquittal or a New Trial

         Mathis and Kweli filed a joint motion for judgment of acquittal or a new trial, which was joined in by Mersadies and Shantai. In this particular motion, defendants argue that the court constructively amended the indictment, and that there was insufficient evidence to prove the existence of a racketeering enterprise or a conspiracy to participate in the conduct of the affairs of an enterprise through a pattern of racketeering activity. The court will address each of these arguments in turn.

         A. Claim of Constructive Amendment to the Charged Racketeering Enterprise

         The defendants were charged with conspiring to participate in a racketeering enterprise, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and with committing violent crimes in aid of racketeering ("VICAR"). In the joint motion for judgment of acquittal or a new trial, the defendants first argue that the court constructively amended the superseding indictment when it instructed the jury that the alleged racketeering enterprise, for purposes of the RICO conspiracy count and the VICAR counts, was the "the 99 Goon Syndikate" rather than "the Bloods." For the following reasons, the court concludes that the defendants invited the error of which they complain and that the claim of constructive amendment is nonetheless without merit.

         The defendants' argument is based primarily on paragraph 13 of the first count of the superseding indictment, which alleged that the defendants were members of a criminal organization known as "the Bloods, " and that "[t]his criminal organization, including its leadership, membership, and associates constituted an 'enterprise, '" for purposes of 18 U.S.C. § 1961(4). Dkt. No. 221 at 2. In the preceding twelve paragraphs, however, the superseding indictment alleged that "[t]he Bloods street gang is comprised of individual units, or 'sets, '" and that the particular set at issue in this case is the "99 Goon Syndikate." Id. at 2. The superseding indictment alleged that, at all times relevant to the superseding indictment, Mathis, Shantai, Mersadies, and Kweli were members of "the 99 Goon Syndikate set of the Blood[s] Street Gang, " and that Kweli, along with co-defendants Halisi Uhuru and Anthony Stokes, "managed [and] promoted ... the criminal enterprise" and "directed lower-ranking members to further the enterprise." Id. at 4. It went on to list the identification number and title for each defendant, as well as the types of criminal acts that "Bloods Street Gang members, including [the] 99 Goon[] Syndikate, " committed "in the Western District of Virginia and elsewhere." Id. at 5. For the RICO conspiracy count, the superseding indictment alleged that the defendants were "employed by and associated with the enterprise described above." Id. at 10-11. For each of the VICAR counts, the superseding indictment alleged that "the Bloods, as more fully described in paragraph One through Seventeen of this Indictment, . . . constituted an enterprise . . . ." See, e.g., id. at 21.

         Prior to trial, Mathis moved to strike alleged "surplusage" from the superseding indictment, including the introductory paragraphs describing the history of the Bloods gang. Mathis emphasized that "the 99 Goon Syndikate [is] the organization that the defendants are actually alleged to have joined." Dkt. No. 369 at 3. Mathis expressed concern over the possibility that the court would permit the jury to have the detailed indictment with it during deliberations. The government ultimately agreed that it would not seek to provide the jury with a copy of the superseding indictment, and that it would instead prepare a chart listing the counts charged in the superseding indictment and the defendants named in each count.

         Prior to trial, both sides submitted proposed jury instructions. The government's proposed instructions included the following language: "In this case, the government has alleged that the 99 Goon Syndikate is an enterprise." Dkt. No. 640 at 37. The court used the same language in its proposed instructions.

         On the evening of Thursday, February 18, 2016, the court met with the parties in chambers to discuss the proposed instructions. While in chambers, Mathis argued for the first time that the jury should be instructed that the charged enterprise was the Bloods rather than the 99 Goon Syndikate. To support this argument, Mathis relied on the Eleventh Circuit's decision in United States v. Weissman, 899 F.2d 1111 (11th Cir. 1990), the same decision on which the defendants now rely. In response, the government emphasized that the superseding indictment did not merely allege that the criminal enterprise was the Bloods and nothing more, and that it instead made clear that the alleged enterprise was "the Bloods, as more fully described in Paragraph One through Seventeen of Count One of the Indictment." Dkt. No. 221 at 21; see also id at 11 (referring to "the enterprise described above"). The government proposed, as an alternative, that the court instruct the jury using the precise language in the superseding indictment, and then provide the jury with the relevant paragraphs of the indictment describing the enterprise. Defense counsel declined that option and elected to proceed with the instructions as originally proposed.

         The next morning, the court invited counsel to make objections on the record regarding the court's proposed instructions. Mathis indicated that he wanted to memorialize his objection to the jury being instructed that the charged enterprise was the 99 Goon Syndikate rather than the Bloods. In response, both the government and the court reiterated that the defendants had been given the option of amending the proposed instructions to track the language of the superseding indictment, with the understanding that the relevant portions of the indictment would be provided to the jury. Rather than having the instructions track the language of the superseding indictment, counsel chose to keep the instructions as worded.

         The defendants now argue that the court constructively amended the superseding indictment by instructing the jury that the alleged racketeering enterprise, for purposes of the RICO conspiracy count and the VICAR counts, was the 99 Goon Syndikate rather than the Bloods. Because the defendants were given the option of amending the instructions to include the more detailed description of the enterprise in the superseding indictment, but elected not to do so, the court agrees with the government that the defendants' claim of constructive amendment is barred by the invited error doctrine. See United States v. Myers, 581 F.App'x 171, 173 (4th Cir. 2014) ("[W]e reject as without merit Myers' contention that the district court erred in instructing the jury on the second and third elements of the § 922(g)(8) offense because Myers invited the error of which he now complaints by opposing amendment of the proposed instructions at the charging conference."); United States v. Quinn, 359 F.3d 666, 674-75 (4th Cir. 2004) ("[T]he record shows . . . that the district court's instruction on this issue was precisely the instruction that they requested . . . [A]ny error committed by the district court in giving this instruction was invited error and is not subject to review.").

         In any event, the defendants' claim of constructive amendment also fails on the merits. "A constructive amendment, also known as a 'fatal variance, ' happens when 'the government, through its presentation of evidence or its argument, or the district court, through its instructions to the jury, or both broadens the bases for conviction beyond those charged in the indictment.'" United States v. Roe. 606 F.3d 180, 189 (4th Cir. 2010) (emphasis added) (quoting United States v. Mallov, 568 F.3d 166, 178 (4th Cir. 2009)). Here, unlike in Weissman, the court did not broaden the enterprise language in the superseding indictment so as to permit the jury to convict on the basis of any enterprise as long as it met the required elements. See Weissman, 899 F.2d at 1113-15 (holding that the district court constructively amended an indictment that identified a specific crime family as the charged enterprise by instructing the jury that they could convict on the basis of any enterprise). To the extent that the court's instructions did not track the precise language of the superseding indictment, they actually narrowed the bases upon which the jury could find that an enterprise existed by identifying the 99 Goon Syndikate, the smaller subset of the Bloods organization, as the charged enterprise at issue. For these reasons, the joint motion for judgment of acquittal or a new trial will be denied with respect to this claim of constructive amendment.

         B. Claims of ...


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