United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad, Chief United States District Judge.
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.
Motion to Dismiss Counts Thirty and
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
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
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). 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).
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.
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").
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.
Joint Motion for Judgment of Acquittal or a New
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.
Claim of Constructive Amendment to the Charged
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.
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
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.
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
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.
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.
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
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
Claims of ...