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United States v. Simmons

United States District Court, E.D. Virginia, Norfolk Division

December 13, 2017

UNITED STATES OF AMERICA
v.
ANTONIO SIMMONS, et al., Defendants.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD, JUDGE

         This matter arises from a Second Superseding Indictment filed on August 23, 2017 ("the Indictment"), wherein it is alleged that Defendants Antonio Simmons ("Defendant Simmons"), Nathaniel Tyree Mitchell ("Defendant Mitchell"), and Malek Lassiter ("Defendant Lassiter") ("collectively "Defendants") are members of the Nine Trey Gangsters ("NTG"), reportedly a criminal street gang that is part of the "United Blood Nation, " a collective of East Coast-based Bloods gangs, which the Indictment alleges is a racketeering enterprise engaged in acts of murder, maiming, assault with firearms, and narcotics distribution. Specifically, the Indictment (ECF No. 121) charges Defendants with thirty-eight (38) counts related to their alleged participation in the affairs of NTG from the Fall of 2010 until August 23, 2017, to include a pattern of racketeering and individual, substantive crimes, punishable under various federal statutes, including the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO") and Violent Crimes in Aid of Racketeering statute ("VICAR").

         Before the Court are two substantive pretrial Motions (a Motion to Exclude and a Motion to Strike), and three corresponding Motions to Adopt, all of which require disposition prior to a jury trial on February 6, 2018.[1] These Motions were referred to the undersigned United States Magistrate Judge ("the undersigned") for a Report and Recommendation pursuant to a Referral Order from the United States District Judge. ECF No. 225; see also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72. For the foregoing reasons, the undersigned RECOMMENDS the following dispositions of the Motions[2]:

- Defendant Mitchell's Motion to Exclude Letter (ECF No. 139) should be DENIED.


- Defendant Lassiter's Motion to Adopt Mitchell's Motion to Exclude Letter (ECF No. 173) should be GRANTED as to the adoption, but DENIED as to the merits.
- Defendant Simmons' Motion to Strike Surplusage from Second Superseding Indictment (ECF No. 146) should be DENIED.


- Defendant Mitchell's Motion to Adopt Simmons' Motion to Strike Surplusage (ECF No. 157) should be GRANTED as to the adoption, but DENIED as to the merits.
- Defendant Lassiter's Motion to Adopt Simmons' Motion to Strike Surplusage (ECF No. 170) should be GRANTED as to the adoption, but should be DENIED as to the merits.

         I. MOTIONS

         Given the number of pending Motions, and in the interest of clarity, the Court will address each substantive Motion (ECF Nos. 139 and 146) and corresponding Motions to Adopt (ECF Nos. 157, 170, and 173) separately.

         A. Defendant Mitchell's Motion to Exclude Letter (ECF No. 139)

         In January 2016, while incarcerated in the Portsmouth City Jail after being arrested on state robbery charges that would ultimately be prosecuted in federal court, Defendant Mitchell wrote a letter to his girlfriend. In his Motion and Memorandum in Support (ECF Nos. 139-40), Defendant Mitchell seeks the exclusion of this letter. Defendant Lassiter joins in this request (ECF No. 173). For the purposes of this R&R, the Court will refer to this January 2016 letter as "the Mitchell Letter." The Mitchell Letter provides, in pertinent part:

I need Bro and whoeva [sic] else to be at my court date so y'all can view the b*tch that will testify on us. She will be there. I was hoping that someone could at least put some fear in her heart so she wouldn't come to trial on us. Somehow follow her and catch her by herself and find out where she stay or be at. Let her know that if she shows up again that she will be dealt with. Or just kill the b*tch. (That's up to Bro). They have EVERYTHING! The jackets we wore, the bandana's we wore, the money we took, and the two Jim J's. Bro had the 40 clip in his pocket and the other two 380 Bullets in his pocket.... [W]e ran he threw the jim jay but they found it in his area. So that right there should tell you enough.

Case No. 2:16-cr-20, ECF No. 32 at 3, ¶ 5.[3] By way of background, Defendant Mitchell was initially arrested and charged for the December 27, 2015 robbery of a Shell gas station in Portsmouth, Virginia sometime around January 2016. Allegedly, while incarcerated in Portsmouth City Jail, Defendant Mitchell wrote a letter stating that another gang member should threaten or kill the Shell gas station clerk before she could testify against Defendant Mitchell and Anthony Derrell Foye ("Foye"), another NTG member and former Co-Defendant in the instant case.[4] In February 2016, Defendant Mitchell and Foye were indicted in federal court in Case No. 2:16-cr-20. Ultimately, on April 18, 2016, Defendant Mitchell pleaded guilty to all four counts of the indictment without a plea agreement, and was later sentenced to a total period of one hundred and forty-four (144) months of active incarceration. Subsequently, in the Indictment filed in the instant case, Defendant Mitchell was charged with various offenses including a racketeering conspiracy. The December 27, 2015 Shell robbery is listed as overt acts "v" and "w" in Count I of the Indictment. ECF No. 121 at 9-10. Moreover, "[protecting the Enterprise and its members from detention, apprehension and prosecution by law enforcement officers by using violence and threats of violence to dissuade potential witnesses from notifying or cooperating with authorities" has been charged as one of the "Means and Methods" of the racketeering enterprise. Id. at 5-6.

         Defendant Mitchell seeks to exclude the Mitchell Letter on essentially two grounds: that it constitutes evidence of a "prior bad act" rendering it inadmissible under Federal Rule of Evidence 404(b), and that the danger of unfair prejudice resulting from its admission substantially outweighs any probative value under Rule 403. The Government opposes the Motion to Exclude on the grounds that the Mitchell Letter is not 404(b) evidence, but rather is evidence tending to prove the means and methods of the racketeering enterprise, and that, even if considered evidence under Rule 404(b), it is not being proffered to show Defendant Mitchell's bad character under 404(b)(1) but rather to show the permitted purposes delineated in 404(b)(2). ECF No. 191. Defendant Lassiter seeks to join Defendant Mitchell's request by virtue of his Motion to Adopt (ECF No. 173), which the Government opposes on the merits, but not as to the adoption thereof. See ECF No. 230 (Government's Omnibus Response to Defendant Lassiter's Motions).

         Rule 404(b)(1) prohibits the presentation of evidence regarding prior bad acts of a defendant in order to prove the defendant's character. See Fed. R. Evid. 404(b) ("(1) Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.")- However, evidence of conduct which is an element of a criminal offense or an act intrinsic to it is not 404(b) evidence, but rather evidence of the substantive crime. United States v. Basham, 561 U.S. F.3d 302, 326 (4th Cir. 2009). The Government argues that the Mitchell Letter constitutes such evidence. ECF No. 191 at 20-25. According to the Government, the Mitchell Letter directed former Co-Defendant Alvaughn Davis ("Davis"), another alleged member of NTG, to intimidate or kill the primary eyewitness to the December 27, 2015 Shell gas station robbery, a crime the Government argues was committed by Defendant Mitchell and Foye to obtain funds for the NTG enterprise. Id. at 21. Moreover, the Government contends, the direction in the letter to Davis to intimidate or kill the witness to the robbery is evidence of the means and manner of the racketeering enterprise to protect it from would-be witnesses. Id. Consequently, the Government contends that Rule 404(b) does not apply to the dispute because the evidence the Government seeks to introduce is related to, or intertwined with, the charged crimes. See United States v. Palacios, 677 F.3d 234, 244-45 (4th Cir. 2012) ("The Rule 404(b) inquiry, however, applies only to evidence of other acts that are extrinsic to the one charged. Acts intrinsic to the alleged crime do not fall under Rule 404(b)'s limitations on admissible evidence. Evidence of uncharged conduct is not other crimes evidence subject to Rule 404 if the uncharged conduct arose out of the same series of transactions as the charged offense, or if evidence of the uncharged conduct is necessary to complete the story of the crime on trial.") (citing Basham, 561 F.3d at 326) (quotation marks, alterations, and citations omitted). See also United States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) ("It is well established that when seeking to prove a conspiracy, the government is permitted to present evidence of acts committed in furtherance of the conspiracy even though they are not all specifically described in the indictment").

         The Court agrees. Here, the Mitchell Letter is intrinsic evidence of the charged crime - a RICO conspiracy to engage in a pattern of racketeering activity involving acts through an enterprise (NTG) that protected itself from prosecution through the use of violence and intimidation against potential witnesses. See e.g., Second Superseding Indictment, ECF No. 121 at 5, Count I, ¶ 5(d) ("Protecting the Enterprise and its members from detection, apprehension, and prosecution by obstructing law enforcement's investigation of members of the Enterprise by witness intimidation and perjury"). Even if the evidence of potentially intimidating or harming a witness is not charged as an overt act, it may serve as "[e]vidence of uncharged conduct arising out of the same series of transactions as the charged offense, and[/or] evidence that 'served to complete the story of the crime on trial, '" which "'do not qualify as evidence of other crimes' subject to scrutiny under Rule 404(b)." United States v. McBride, 676 F.3d 385, 396 (4th Cir. 2012) (quoting United States v. Kennedy,32 F.3d 876, 886 (4th Cir. 1994)). Here, the intimidation or harming of a ...


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