Opinion
No. 5:16-CR-12-D-6
2020-06-09
UNITED STATES of America v. Brandon Jowan MANGUM, Defendant.
Asia J. Prince, Dena J. King, Tamika Griffin Moses, AUSA James J. Kurosad, John David Koesters, Scott A. Lemmon, Tobin W Lathan, United States Attorney's Office, Raleigh, NC, Christina L Taylor, Marty A. Woelfle, United States Department of Justice, Washington, DC, for Plaintiff.
Asia J. Prince, Dena J. King, Tamika Griffin Moses, AUSA James J. Kurosad, John David Koesters, Scott A. Lemmon, Tobin W Lathan, United States Attorney's Office, Raleigh, NC, Christina L Taylor, Marty A. Woelfle, United States Department of Justice, Washington, DC, for Plaintiff.
ORDER
JAMES C. DEVER III, United States District Judge On October 24, 2019, a jury convicted Brandon Jowan Mangum a/k/a "B-Easy" of (1) conspiracy to participate in a pattern of racketeering (count one); (2) murder in aid of racketeering and aiding and abetting the murder of Rodriguez Burrell (count two); (3) murder with a firearm during and in relation to a crime of violence and aiding and abetting the murder of Rodriguez Burrell (count three); and (4) conspiracy to distribute and possess with the intent to distribute a quantity of cocaine and a quantity of marijuana (count six). See [D.E. 796].
On November 7, 2019, Mangum renewed his motion for judgment of acquittal, requested a conditional grant of a new trial, and moved for a new trial [D.E. 809]. On December 20, 2019, the United States responded in opposition [D.E. 821].
The court has reviewed the entire record. Mangum received a fair trial. The jury carefully considered the evidence, the parties’ arguments, and the court's jury instructions. In light of the tsunami of evidence and the governing law, this court has confidence in the jury's verdict. Thus, the court denies Mangum's renewed motion for judgment of acquittal and motion for a new trial.
I.
Mangum was a high-ranking member of a Bloods set in Raleigh, North Carolina, that initially was referred to as Gangsta Killa Bloods ("GKB") and then Black Mob Gangstas ("BMG"). BMG then became affilitated with the Donald Gee Family ("DGF"), and GKB became a rival gang. The court refers to the Blood set as BMG/DGF.
Demetrice Regis Devine a/k/a "Respect" was the leader of BMG/DGF. BMG/DGF primarily operated on and around Haywood Street in Southeast Raleigh, North Carolina. Beginning in approximately 2008, BMG/DGF members regularly engaged in criminal acts to further BMG/DGF's goals. These acts included drug trafficking, Hobbs Act extortion, obstruction of justice, witness tampering, and murder. BMG/DGF members also conspired to commit such crimes, attempted to commit such crimes, and aided and abetted each other in committing such crimes.
BMG/DGF members had to pay dues to BMG/DGF, which BMG/DGF called Community Rent Box ("CRB"). BMG/DGF members often earned money to pay their CRB via criminal conduct such as drug dealing, prostitution, fraud, and extortion. The extortion included extorting payments from drug dealers who sold or attempted to sell drugs on BMG/DGF turf. One such drug dealer who refused to pay CRB to BMG/DGF was Rodriguez Burrell. On the evening of May 25, 2009, BMG/DGF members murdered Rodriguez Burrell on his father's porch at 500 Haywood Street. Essentially, the trial evidence showed that Brandon Mangum walked by the front porch at 500 Haywood Street, falsely inquired about buying some "smoke," but really was confirming that Rodriguez Burrell was on the porch. At that time, Rodriguez Burrell, Rodney Burrell (Rodriguez's father), and Stephon Smith were on the porch and were selling drugs, getting high, and watching a movie. About ten minutes later, the BMG/DGF shooter walked up and asked from the sidewalk whether they had any "smoke." Rodney Burrell responded "yes," and the shooter walked up on the porch. Rodney Burrell believed that the shooter was reaching into his pocket for money to pay for the marijuana. Instead, the shooter pulled out a gun, executed Rodriguez Burrell, and ran from the murder scene. Rodriguez Burrell was 18 years old.
The cast of characters identified at the trial seems like something out of a television show. Sadly, for the people of Southeast Raleigh, BMG/DGF's violent crime was anything but fictional. Before discussing Mangum's motion, the court briefly recounts some of the cast of characters.
Demetrice Devine a/k/a "Respect" was a career, violent criminal and the leader of BMG/DGF. On October 24, 2019, the jury convicted Devine of conspiracy to participate in a pattern of racketeering activity (count one), murder in aid of racketeering and aiding and abetting in connection with the murder of Adarius Fowler (count four), murder with a firearm during and in relation to a crime of violence and aiding and abetting the murder of Adarius Fowler (count five), conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base (crack), 500 grams or more of cocaine, and a quantity of marijuana (count six), and conspiracy to commit witness tampering (count seven). See United States v. Devine, 5:16-CR-12-D-1, [D.E. 794] (E.D.N.C. Oct 24, 2019).
On November 21, 2008, Adarius Fowler was 16 years old and a member of GKB or G-Shine, a rival gang. On that date, Fowler was murdered outside a convenience store in Raleigh. Devine ordered the murder, and BMG/DGF's intended target was "Frankie Boo," the leader of GKB or G-Shine.
Dontaous Demond Devine a/k/a "Boochie," "Scooch," or "Scoochie" was Devine's cousin and second in command of BMG/DGF. Dontaous Demond Devine pleaded not guilty to the federal charges against him in this case. He committed suicide in jail while awaiting trial in this case.
Demetrius Deshawn Toney a/k/a "Meat" was a member of BMG/DGF and eventually obtained the rank of 5-star general after the Burrell murder. Toney participated in the conspiracy to murder Rodriguez Burrell and the murder of Rodriguez Burrell on May 25, 2009. Before trial, Toney pleaded guilty to conspiracy to participate in a pattern of racketeering and did not testify at trial.
Brandon Jowan Mangum a/k/a "B-Easy" was a member of BMG/DGF and participated in the conspiracy to murder Rodriguez Burrell and the murder of Rodriguez Burrell on May 25, 2009, in order to gain rank in BMG/DGF. Due to the murder, Mangum gained substantial rank in BMG/DGF. On October 24, 2019, the jury convicted Mangum of conspiracy to participate in a pattern of racketeering (count one), murder in aid of racketeering and aiding and abetting in connection with the murder of Rodriguez Burrell (count two), murder with a firearm during and in relation to a crime of violence and aiding and abetting the murder of Rodriguez Burrell (count three), and conspiracy to distribute and possess with the intent to distribute a quantity of cocaine and a quantity of marijuana (count six). See [D.E. 796].
Jamario Keon Jones a/k/a "Spect Junior" or "Skeeno" was a member of BMG/DGF and testified at trial. While a BMG/DGF member, Jones lived on Haywood Street. Before trial, Jones pleaded guilty to murder with a firearm during and in relation to a crime of violence and aiding and abetting the murder of Adarius Fowler. At trial, Jones explained the structure of BMG/DGF and how gang members gained "rank" within BMG/DGF. Jones also gave significant first-hand details of BMG/DGF's criminal activities on and around Haywood Street, the conspiracy to murder and the murder of Rodriguez Burrell, the murder of Adarius Fowler, and the attempted murder of Phillip Brimage a/k/a "Fear Five." See [D.E. 821] 27–28. Jones was one of the shooters in the Fowler murder and was the shooter in the Brimage attempted murder.
Timothy Collins a/k/a "Biggs" was a high-ranking member in BMG/DGF. Collins testified at trial about his role and the conduct of others within BMG/DGF, including the conspiracy to participate in a pattern of racketeering, the conspiracy to murder Rodriguez Burrell, and the murder of Rodriguez Burrell. See id. at 9–13.
Christopher Darnell Evans a/k/a "Racks" or "Snacks" was a high-ranking member in BMG/DGF. Before trial, Evans pleaded guilty to conspiracy to participate in a pattern of racketeering and conspiracy to distribute and possess with the intent to distribute controlled substances. At trial, Evans testified about his role and the conduct of others within BMG/DGF.
Cleveland McNair a/k/a "Blee" was a member of BMG/DGF. Before trial, McNair pleaded guilty to conspiracy to participate in a pattern of racketeering and conspiracy to distribute and possess with the intent to distribute controlled substances. At trial, McNair testified about his role and the conduct of others within BMG/DGF.
Carletta P. Alston a/k/a "Lady Soowoo" was the highest-ranking female in BMG/DGF. Before trial, Alston pleaded guilty to conspiracy to commit witness tampering. At trial, Alston testified about her role in BMG/DGF, including her numerous interactions with Demetrice Devine and Brandon Mangum concerning BMG/DGF. See id. at 20–21.
Brenda Joyce Brown a/k/a "Lady Banga" was a member of BMG/DGF. Before trial, Brown pleaded guilty to violent crime in aid of racketeering and aiding and abetting. At trial, Brown testified about her role and the conduct of others within BMG/DGF. See id. at 18.
Katherine Victoria Gast a/k/a "Kat Stacks" was a member of BMG/DGF. Before trial, Gast pleaded guilty to violent crime in aid of racketeering and aiding and abetting. At trial, Gast testified about her role and the conduct of others within BMG/DGF.
Shaiona Marie Smith a/k/a "Slyfox" was a member of BMG/DGF. Before trial, Smith pleaded guilty to two counts of violent crime in aid of racketeering and aiding and abetting. At trial, Smith testified about her role and the conduct of others within BMG/DGF.
Phillip Brimage a/k/a "Fear Five" was a member of GKB. Adarius Fowler was his best friend. On November 26, 2008, at Demetrice Devine's direction, Jamario Jones shot Phillip Brimage, and Brimage was hospitalized at WakeMed. Demitrice Devine asked Erica Perry a/k/a "Red," who was one of Devine's girlfriends, to kill Brimage in his hospital room to prevent Brimage from talking to the police about the Fowler murder.
Erica Perry a/k/a "Red" was one of Demetrice Devine's girlfriends. At trial, Perry testified about BMG/DGF and the murder of Adarius Fowler, including the roles of Demetrice Devine, Jamario Jones, and James Alston in murdering Adarius Fowler. Perry also testified that Demetrice Devine directed her to go to Wake Med and murder Phillip Brimage, who was recovering from gunshot wounds arising from BMG/DGF's attempted murder of Brimage.
Derek Griffis a/k/a "Red" was a member of BMG/DGF. Griffis testified at trial about his role in the conspiracy to participate in a pattern of racketeering as part of BMG/DGF, the conspiracy to murder Rodriguez Burrell, the murder of Rodriguez Burrell, and its aftermath. See id. at 24–26.
Sandy Spence a/k/a "Stunna" was a member of BMG/DGF. At trial, Spence testified about his role in BMG/DGF and his knowledge concerning the Rodriguez Burrell murder. See id. at 17–18.
Arthur Gunn a/k/a "Sosa" was a member of BMG/DGF. At trial, Gunn testified concerning his role and the conduct of others in the conspiracy to participate in a pattern of racketeering activity as part of BMG/DGF. See id. at 21–23.
Juwaun Martin-Allen a/k/a "Pimpin" was a member of BMG/DGF. At trial, Martin-Allen testified about his role and the conduct of others within BMG/DGF. See id. at 18–19.
Andrew Flagler a/k/a "Cool Breeze" or "Breezy" was a member of BMG/DGF. At trial, Flagler testified about his role in the conspiracy to participate in a pattern of racketeering as part of BMG/DGF and a conspiracy to distribute narcotics as part of BMG/DGF.
Tremayne Faison testified at trial about his friendship with Dontaous Devine a/k/a "Boochie" and Boochie's statement to him that Dontaous Devine, Brandon Mangum, and Demetrius Toney murdered Rodriguez Burrell. See id. at 19–20.
James Alston a/k/a "Hitman" did not testify at trial. Alston was murdered before the trial. At trial, Jamario Keon Jones testified concerning Jones's role, Alston's role, and Demetrice Devine's role in murdering Adarius Fowler. Jones testified that Alston was one of the shooters in the Fowler murder.
Randy Merritt a/k/a "June" or "Junior" was a member of BMG/DGF. Merritt did not testify at trial. At trial, however, Timothy Collins testified that Merritt told Collins that Merritt drove Dontaous Devine a/k/a "Boochie" and others to Haywood Street on May 25, 2009, to commit the murder of Rodriguez Burrell. See id. at 11. Moreover, after Merritt received a federal grand jury subpoena in 2015 concerning BMG/DGF, Demetrice Devine conspired to commit witness tampering concerning Merritt in order to prevent Merritt from testifying.
Numerous other witnesses testified at trial. These witnesses included Rodriguez Burrell's stepmother, Lynn Griffin Burrell, and father, Rodney Burrell. See id. at 13–16. Each lived on Haywood Street and testified about the events leading to the murder of Rodriguez Burrell on May 25, 2009, the murder of Rodriguez Burrell, and the aftermath of Rodriguez Burrell's murder. See id. Stephon Smith also testified about Rodriguez Burrell's murder. Smith explained how he, Rodney Burrell, and Rodriguez Burrell were on Rodney Burrell's porch at 500 Haywood Street on the evening of May 25, 2009, when Rodriguez Burrell was murdered. See id. at 27.
Roderick Howell testified at trial. See id. at 16–17. According to Howell's 2016 federal grand jury testimony, Howell went to middle school with Mangum, and he and Mangum used to date two women who were sisters. Howell and Mangum were detained in the same jail in Wake County after Mangum was charged in state court with Burrell's murder. According to Howell, while briefly placed in the same visiting room together at the jail, Mangum made numerous admissions to him about Burrell's murder. Mangum told Howell that the murder resulted from a founding gang member's order, that "Respect" gave the order, that "Boochie" passed along the order, that the murder took place on the front porch of a house on Haywood Street, that the victim was named ReUp or Rodriguez, that one of the BMG/DGF members left his shoe near the murder scene, that the shoe was the only thing that could "fuck them up," that Mangum was present when the murder happened, that the murder weapon was a 9 millimeter, that Derek Griffis got the 9 millimeter after the murder, and that the murder was necessary because "they didn't want him selling drugs on the[ir] turf." Id. at 17. At trial, however, Howell contradicted his grand jury testimony and feigned memory loss. In fact, Howell was the most reluctant witness that this court has ever seen. Accordingly, the court admitted Howell's federal grand jury testimony under Federal Rule of Evidence 801(d)(1)(A), and Howell was then vigorously cross examined about Mangum's alleged admissions. See id.
At trial, former Wake County Deputy Sheriff Guy Paglio testified about arresting Mangum on November 12, 2013, and finding him in possession of a trafficking quantity of marijuana and a loaded .22 caliber revolver. After that arrest, Mangum pleaded guilty in Wake County Superior Court to possession of a firearm by a felon. See id. at 23.
Numerous Raleigh Police Department officers involved in investigating BMG/DGF also testified at trial about the conduct of BMG/DGF members and the investigations of the murders of Rodriguez Burrell and Adarius Fowler. See id. at 13–14, 28–29.
Dr. Deborah Radisch, the retired Chief Medical Examiner of North Carolina, testified about the cause of death of Rodriguez Burrell and Adarius Fowler. Rodriguez Burrell died from a gunshot wound. The bullet entered above and behind Rodriguez Burrell's right ear, passed through both sides of his brain, and exited near his left ear lobe. The fatal shot literally blew Rodriguez Burrell's brains out. Rodriguez Burrell was 18 years old when he was murdered. Adarius Fowler died from a bullet that entered below his right collar bone, traveled through the upper right chamber of his heart, tore through his left kidney, and collapsed his lung. The fatal shot destroyed Adarius Fowler's heart. Adarius Fowler was 16 years old when he was murdered.
At trial, the court not only heard the testimony of numerous witnesses, but also received 212 exhibits into evidence. In reviewing Mangum's motion for judgment of acquittal and motion for a new trial, the court has reviewed the parties’ arguments, the exhibits, a draft transcript of the trial testimony that Mangum submitted with his motion, this court's trial notes, and the entire record.
II.
After a jury returns a guilty verdict, "the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c)(2). However, a defendant who challenges the sufficiency of the evidence "bears a heavy burden." United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (quotations omitted). Reversing a conviction due to insufficient evidence is "reserved for the rare case ‘where the prosecution's failure is clear.’ " Id. (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ). In reviewing the evidence, the court must construe the evidence in the light most favorable to the verdict "assuming its credibility and drawing all favorable inferences from it." United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). The court "will sustain the jury's verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt" Id. (emphasis omitted). A court must deny a Rule 29 motion if "there is substantial evidence to support the verdict, after viewing all the evidence and the inferences therefrom in the light most favorable to the Government." United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
Substantial evidence means "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In evaluating the evidence, the court "cannot make [its] own credibility determinations but must assume that the jury resolved all contradictions in testimony in favor of the Government." United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir. 1993).
A court may "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A court should grant a motion for a new trial when "the evidence weighs so heavily against the verdict that it would be unjust to enter judgment." United States v. Arrington, 757 F.2d 1484, 1485 (4th Cir. 1985). A district court, however, "should exercise its discretion to award a new trial sparingly." United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006) (quotation omitted). A district court should not overturn a jury verdict "except in the rare circumstances when the evidence weighs heavily against it." Id. (quotation omitted).
In his motion for judgment of acquittal, Mangum makes three arguments. First, Mangum argues that there was insufficient evidence for the jury to find that he knowingly or intentionally entered into or joined any agreement, express or implied, to engage in a pattern of racketeering activity. See [D.E. 809] 6–24. Second, Mangum argues that there was insufficient evidence to prove that he committed count two (i.e., murder in aid of racketeering and aiding and abetting the murder of Rodriguez Burrell) or count three (i.e., murder with a firearm during and in relation to a crime of violence and aiding and abetting the murder of Rodriguez Burrell). See id. at 24–25. Third, Mangum argues that there was insufficient evidence to prove that he committed count six (i.e., conspiracy to distribute and possess with the intent to distribute a quantity of cocaine and a quantity of marijuana). See id. at 26–28. Alternatively, Mangum seeks a new trial and argues that the weight of the evidence does not support the verdict See id. at 28–29.
The United States opposes Mangum's motion. In its opposition, the United States comprehensively discusses the governing law and the trial evidence. See [D.E. 821] 4–30.
Having reviewed the evidence in the light most favorable to the verdict and in accordance with this court's jury instructions [D.E. 802], the court denies Mangum's Rule 29 motion. The court agrees with the government's response. See [D.E. 821]. Essentially, Mangum's motion parrots the closing argument that his counsel made to the jury and that the jury rejected. There was overwhelming evidence to support Mangum's convictions on counts one, two, three, and six.
III.
A.
In denying the Rule 29 motion, the court also addresses certain evidentiary rulings. On October 8, 2019, the government moved in limine and previewed several evidentiary issues it expected to arise during trial [D.E. 745]. Specifically, the government previewed the alleged co-conspirator statements of Dontaous Devine to Antonio Boyd, Tremayne Faison, and Timothy Collins, the co-conspirator statements of Dontaous Devine and Derek Griffis to Arthur Gunn, and Mangum's alleged admissions to Roderick Howell. See id. at 32–35. The government also noted that it might seek admission of other co-conspirator statements. See id. at 32 n.6. On October 11, 2019, Mangum responded and moved in limine to exclude Dontaous Devine's statements to Timothy Collins, Antonio Boyd, Arthur Gunn, and Tremayne Faison [D.E. 760]. Mangum argued that Dontaous Devine's statements were hearsay, that the co-conspirator exception did not apply, and that admission of the statements would violate the Confrontation Clause as discussed in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See id. at 3–7, 21. On October 13, 2019, the government responded in opposition [D.E. 763].
On October 15, 2019, before jury selection, the court addressed the government's and Mangum's pretrial filings. The court noted Mangum's arguments concerning co-conspirator statements, and stated that the court planned to make rulings on the admissibility of statements under the Federal Rules of Evidence and the Confrontation Clause as the trial progressed. The court also noted that some co-conspirator statements are admissible under Rule 801(d)(2)(E) and that such non-testimonial statements do not violate the Confrontation Clause or Bruton. See, e.g., United States v. Mathis, 932 F.3d 242, 256 n.8 (4th Cir. 2019) ; United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013).
Under Rule 801(d)(2)(E) of the Federal Rules of Evidence, a statement offered against an opposing party that "was made by the party's coconspirator during and in furtherance of the conspiracy" is not hearsay. See Fed. R. Evid. 801(d)(2)(E). The proponent of such evidence has the burden to show that "(i) a conspiracy did, in fact, exist, (ii) the declarant and the defendant were members of the conspiracy, and (iii) the statement was made in the course of, and in furtherance, of the conspiracy." United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013) (quotation omitted); see Mathis, 932 F.3d at 254 ; United States v. Ayala, 601 F.3d 256, 267–68 (4th Cir. 2010) ; United States v. Smith, 441 F.3d 254, 261 (4th Cir. 2006) ; United States v. Pratt, 239 F.3d 640, 643 (4th Cir. 2001) ; United States v. Shores, 33 F.3d 438, 442 (4th Cir. 1994) ; United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992).
A statement is "in furtherance" of the conspiracy "if it [is] intended to promote the conspiracy's objectives, whether or not it actually has that effect." Smith, 441 F.3d at 262 (quotation omitted); see Graham, 711 F.3d at 453. To that end, a statement may further a conspiracy even if it "is susceptible of alternative interpretations and was not exclusively, or even primarily, made to further the conspiracy, so long as there is some reasonable basis for concluding that it was designed to further the conspiracy." Shores, 33 F.3d at 444 (quotation omitted); see Smith, 441 F.3d at 262 ("Most courts, including the Fourth Circuit, construe the in furtherance requirement so broadly that even casual relationships to the conspiracy suffice to satisfy the exception."). Additionally, "statements made between co-conspirators to inform each other as to the progress or status of the conspiracy are statements made in furtherance of the conspiracy," including statements to "induce a coconspirator's assistance to destroy evidence for the purpose of evading detection and arrest." Mathis, 932 F.3d at 254, 255 (quotations omitted); see United States v. Ciresi, 697 F.3d 19, 29–30 (1st Cir. 2012) ("Statements made between conspirators which provide reassurance or serve to maintain trust and cohesiveness among them further the ends of the conspiracy." (quotation and alterations omitted)).
For a statement to be admissible under Rule 801(d)(2)(E), the declarant and defendant against whom the evidence is offered must be members of the conspiracy. This conspiracy-membership requirement does not apply concerning the witness who testifies to the declarant's statement. See Ayala, 601 F.3d at 268–69 ; Smith, 441 F.3d at 262 ("For example, statements made by a conspirator to a non-member of the conspiracy are considered to be ‘in furtherance’ of the conspiracy if they are designed to induce that party either to join the conspiracy or to act in a way that will assist in accomplishing its objectives." (quotation omitted)); Shores, 33 F.3d at 444. Additionally, whether the defendant against whom the evidence is offered was present to hear the declarant's statement does not affect admissibility. See, e.g., Bourjaily v. United States, 483 U.S. 171, 176–77, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). To be admissible, the court must be satisfied that the statement falls within Rule 801(d)(2)(E), and there must be sufficient evidence from which a jury could reasonably find, based on a preponderance of the evidence, that a fact exists. See id. at 175, 107 S.Ct. 2775 ; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
At trial, the court admitted numerous statements implicating Dontaous Devine, Brandon Mangum, and Demetrius Toney in the conspiracy to participate in a pattern of racketeering and the conspiracy to murder Rodriguez Burrell. Timothy Collins testified about statements that Randy Merritt, Dontaous Devine, and Derek Griffis made to him during the conspiracy to participate in a pattern of racketeering and the conspiracy to murder Rodriguez Burrell. As for Collins's testimony concerning Randy Merritt's statements to him during each conspiracy, Collins testified:
Mangum filed a rough draft of the trial transcript with his renewed motion for judgment of acquittal. The quoted testimony is from the rough draft transcript. The rough draft transcript is not on the docket. For clarity, the court has added additional identifying information within some of the rough draft transcript.
Q: After that murder happened, was there a time when you had a conversation with the person you've described as June [i.e., Randy Merritt] about ReUp [i.e., Rodriguez Burrell]?
A: Yes, sir.
Q: And how much farther after the murder was that?
A: Maybe two or three days.
Q: And can you describe the conversation to the jury?
A: June had called me. I was parked at a limo month shop that a friend of mine's own on Lake Willow Road and he had called me and told me that the police had picked him up and questioned him about the murder. And he used code names. He said the Ray Ray on the 577.
Q: So you said the Ray Ray what is the Ray Ray?
A: Ray Ray means murder. 577 means our home base.
Q: So he was talking with you about that murder on Haywood Street that he referred to as the Ray Ray on the 577?
A: Yes, sir.
Q: Did [June] make any other statements to you?
A: I asked him did he have anything to do with it, and he said he no.
...
Q: Did he make additional statements to you?
A: I asked him did he have anything to do with it and he said he drove them over there.
Q: He drove them over there?
A: Yes, sir. And "Scooch" and them.
...
Q: Whose "Scooch" again?
A: "Boochie" [i.e., Dontaous Devine].
Q: And so when he said I drove "Scooch" and them did you think he was referring to the murder?
A: Yes, sir.
Q: And that he was saying that he drove them to do it?
A: Yes, sir.
Day 2 at 190–91.
As for Collins's testimony recounting Dontaous Devine's statement to him during each conspiracy, Collins was a member of BMG/DGF when Dontaous Devine made his statements. In fact, Collins was the "Acting OG" of BMG/DGF after law enforcement detained Demetrice Devine shortly after Burrell's murder. Id. at 191–92. OG is the highest rank in BMG/DGF. See id. at 153. Collins testified on the second day of trial:
Q: Was there ever a time when you had a chance to talk to "Boochie" or "Scooch" about the Rodriguez Burrell murder?
A: Yes, sir.
Q: And when was that?
A: Maybe not more than a week after [the murder].
...
Q: Where were you?
A: I was at "Scooch's" house.
...
Q: Okay. And did you have a conversation about the Rodriguez Burrell murder?
A: Yes, sir.
Q: And what did he say?
A: This was after me and June had our conversation so June had already told me that he drove "Scooch" and them so I wanted to know who and them was. And "Scooch" told me that him, "B-Easy," and "Meat" did it.
Q: So just to make sure we got that. Say that one more time. What is it that "Scooch" said to you?
A: "Scooch" informed me at his house that him, "B-Easy," and "Meat" had committed the murder on the 577.
Id. at 194–95.
On day five of the trial, Collins was recalled to the stand and testified again about Dontaous Devine's statements to him during each conspiracy:
Q: And what did — in that conversation what did "Boochie" say to you?
A: "Boochie" told me that him, "B-Easy" and "Meat" had committed the homicide.
Day 5 at 11.
Collins also testified about statements Derek Griffis made to him during each conspiracy:
Q: And when do you remember speaking with Mr. Griffis about the Rodriguez Burrell homicide?
A: I called "Red" [i.e., Derek Griffis] one night to get a pistol from him, a firearm and he had a book bag full of guns. He was on Haywood Street when I met him and the gun that I wanted to get from him was a 9mm. I remember he said you don't want this gun because it was used in the Ray Ray on the 577. So I ended up getting a 38 revolver from him.
...
Q: You thought that one of the guns he had was the gun used to kill Rodriguez Burrell?
A: Yes, sir.
Day 2 at 197.
Antonio Boyd also testified about his conversation with Dontaous Devine during each conspiracy:
Q: And [Boochie] told you the [CRB] price was going up to $50 and now tell us one more time why was the price going up?
A: Because he had put [a hit] up on ReUp and it was getting hot around the way and needed more money.
Q: So he told you he put a hit on ReUp?
A: Yeah.
Day 3 at 236.
Tremayne Faison also testified about his conversation with Dontaous Devine during each conspiracy:
Q: And what did Boochie tell you?
A: He told me to keep everything between me and him. He called me to the back of the house I was in where I was selling stuff at.
Q: Specifically what did he tell you as it relates to ReUp [i.e., Rodriguez Burrell]?
A: He said "Respect" [i.e., Demetrice Devine] called a hit out on him for not pay[ing] tithes to him.
...
Q: Did he say who actually did it?
A: He said Meat [i.e., Demetrius Toney].
Q: Did he say anyone else?
A: He said B-Easy [i.e., Brandon Mangum] with him.
...
Q: Did he say where it happened?
A: Over on Haywood.
Q: Did he give you any other details about what happened in the process?
A: He said he left his shoe, he said dumb n***** left his shoe.
...
Q: Who was he referring to?
A: Meat.
Day 3 at 248–49.
Derek Griffis testified about his conversation during each conspiracy with Dontaous Devine, Brandon Mangum, Demetrius Toney, and other BMG/DGF members on the day of Burrell's murder (i.e., May 25, 2009):
Q: What were they talking about?
A: Well, as I walked up it was talking about putting work on somebody, well, committing a crime on somebody and Meat had lift his shirt up, had a firearm on him, and I asked him what they about to go do they said they about to go put in work.
Q: Who said they about to go put in work?
A: Meat.
...
Q: Now, when Meat lifts his shirt and says he's about to go put it in, what do you say?
A: That I was trying to go with him.
...
Q: What did — did anybody respond to you saying you wanted to go put it in?
A: Yeah, Boochie told me I couldn't go.
Q: Did he say why?
A: Because it was going to put work on and knew my face.
Day 4 at 250–52.
Griffis also testified about what he did immediately after this conversation with Dontaous Devine, Brandon Mangum, Demetrius Toney, and other BMG/DGF members on May 25, 2009:
Q: Now, after this discussion, what do people do?
A: Everybody depart from each other.
Q: Do you physically see people walk away?
A: Yes.
Q: Where do they go? Which direction?
A: "June," Meat, "B-Easy" and J30 went to swag street. I walked out toward Haywood Street and then Boochie I think he went towards Chavis Park or something like that.
...
Q: When you went back towards Haywood Street where did you go?
A: Into the store.
...
Q: And when you were coming out of the store did you hear anything?
A: Yes.
Q: What did you hear?
A: Gunshots.
Q: Do you know approximately how many?
A: Multiple.
Day 4 at 253–54.
Griffis then testified about a conversation during each conspiracy at Dontaous Devine's residence on May 25, 2009, after Burrell's murder:
Q: Why go to Boochie's house?
A: Because he was out in that circle when the incident happened.
...
Q: Now, was Boochie already in the home?
A: Yes.
Q: So who did you see walk in?
A: Boochie, Meat, and "B-Easy"—I mean—my bad, "June," "B-Easy," and Meat.
...
Q: When you saw them in Boochie's home this time were they—meaning "B-Easy" and "June" were they wearing the same clothing they had worn when you saw them at the bus stop earlier?
A: Yes.
Q: And did anybody say anything when they walked in?
A: Meat did.
Q: What did he say?
A: That his shoe came off in the field he was running.
Q: Did you physically look down at his feet?
A: Yes.
Q: And what did you see?
A: Only one shoe on.
Q: Describe the shoe that he was wearing.
A: He had on some black Airforce One Nikes on.
...
Q: Did Boochie ask him about how he lost his shoe?
A: Yes.
Q: What did he say?
A: He [said] he was running across the field.
Id. at 256–57.
Griffis also testified about Dontaous Devine's request to Griffis during each conspiracy to dispose of a nine-millimeter gun:
Q: Now, at some point later, were you contacted by Boochie?
A: Yes.
Q: And why? What did he want?
A: He wanted me to get rid of the guns.
Q: And specifically what did he tell you?
A: He told me to take the guns and put them up and don't let nobody knows that was it.
...
Q: What did he give you?
A: He gave me three guns wrapped in a T-shirt do you recall what types of guns those were
A: A nine-millimeter, a 45, and a 38 revolver.
Q: And the nine-millimeter, had you ever seen that nine-millimeter before?
A: Yes.
Q: When had you seen it?
A: On Haywood Street on the night that ReUp [i.e., Rodriguez Burrell] was killed.
Q: So was that the same gun that you also saw that Meat [i.e., Demetrius Toney] had that night?
A: Yes.
Id. at 259–60.
Arthur Gunn also testified about his conversation during each conspiracy with Derek Griffis concerning the Burrell murder:
Q: As part of your time in DGF I know this happened before you joined but were you also aware of the murder of Rodriguez Burrell?
A: I was aware but wasn't around.
Q: Do you know the name ReUp [i.e., Rodriguez Burrell]?
A: Yeah ...
...
Q: What about [a conversation] with [Derek] Griffis?
A: Yes.
Q: What was that conversation?
A: He was telling me that like he was basically telling me like events of what happened around the time that he was supposed got killed.
...
Q: And what did he say?
A: He was just telling me how they wanted him to do it at first and he didn't want to do it, so send "Scooch" and "B-Easy" to do it, but —
Q: ... Say the first part they wanted him to do it; is that right?
A: Yes, specifically, yes.
Q: I think you said he said he did not want to do it?
A: Yeah, he said he didn't want to do it. I mean, he had his own intentions why he said he said he didn't want to do it and they send "B-Easy" and couple other homies to go do it.
Id. at 142–43.
As for (1) Randy Merritt's and Dontaous Devine's statements to Timothy Collins, (2) Dontaous Devine's statements to Antonio Boyd, Tremayne Faison, and Derek Griffis, (3) Demetrius Toney's statements to Derek Griffis, and (4) Derek Griffis's statements to Arthur Gunn, the evidence demonstrated that each declarant and Mangum were members of a conspiracy to participate in a pattern of racketeering involving BMG/DGF members and a conspiracy to murder Rodriguez Burrell when each declarant made the statements. See, e.g., Ayala, 601 F.3d at 268–69. Accordingly, the first requirement under Rule 801(d)(2)(E) was satisfied for each of Randy Merritt's, Dontaous Devine's, Demetrice Toney's, and Derek Griffis's statements.
As for whether Randy Merritt's and Dontaous Devine's statements to Collins furthered either conspiracy, Collins knew almost immediately after the murder that Burrell had been murdered. See Day 2 at 191. Merritt's statement helped Collins gather information to further and protect each conspiracy, and Merritt's statement was admissible. Moreover, one week after the Burrell murder, Collins (the acting OG due to Demetrice Devine's detention) went to Dontaous Devine's residence. While there, Dontaous Devine told Collins that he, Brandon Mangum, and Demetrius Toney had murdered Burrell. See id. at 195; Day 5 at 10–13. At that time, Collins knew that Burrell had been selling drugs on Haywood Street, and that—unlike many other drug dealers on Haywood Street—Burrell did not pay CRB to BMG/DGF as required by the gang. See Day 2 at 177–79. Accordingly, Dontaous Devine's statements to Collins informed Collins of the grim status of one individual, Burrell, who hampered BMG/DGF's operations on Haywood Street and permitted Collins to help formulate a strategy to cover up the murder and to continue the drug dealing on Haywood Street. See Mathis, 932 F.3d at 254–55 ; Ciresi, 697 F.3d at 29–30. Thus, Dontaous Devine's statements furthered each conspiracy when Dontaous Devine made the statements to Collins about the Burrell murder, and the statements were admissible.
As for Antonio Boyd, he was not a member of BMG/DGF when Dontaous Devine spoke to him about Burrell's murder. See Day 3 at 209–10. Rather, Boyd was a cocaine dealer on a street that intersected Haywood Street. See id. at 230–31. Before Burrell's murder, Dontaous Devine demanded that Boyd pay CRB to BMG/DGF. See id. at 234. Immediately after Burrell's murder, Dontaous Devine again demanded Boyd pay CRB to BMG/DGF and informed him that the amount due had increased. See id. at 236. Boyd testified that he believed Dontaous Devine's statement concerning the "hit" put on Burrell was intended to intimidate Boyd into paying CRB to BMG/DGF. See id. at 236–37. Dontaous Devine's statements concerning the "hit" on Burrell were intended to assist BMG/DGF, principally through increasing CRB payments to BMG/DGF. Accordingly, the statements furthered the conspiracy to participate in a pattern of racketeering, and the statements were admissible. See Ayala, 601 F.3d at 268–69 ; Smith, 441 F.3d at 262 ; Shores, 33 F.3d at 444.
As for Derrick Griffis, he was a member of BMG/DGF and each conspiracy when his co-conspirators Dontaous Devine and Demetrius Toney made statements to him about the Burrell murder. See Day 4 at 229–30, 233. Griffis sold marijuana on Haywood Street and paid CRB to BMG/DGF. See id. at 234, 236, 244. Griffis knew that BMG/DGF demanded that Burrell pay CRB for selling drugs in BMG/DGF territory. See id. at 246. Both Demetrius Toney's and Dontaous Devine's statements concerned putting in "work"—i.e., murdering Burrell for refusing to pay CRB—for BMG/DGF, and let Griffis know what BMG/DGF planned to do about Burrell. Accordingly, both statements were made in furtherance of each conspiracy, and were admissible. See Mathis, 932 F.3d at 254–55 ; Ciresi, 697 F.3d at 29–30. The same analysis applies to Demetrice Toney's statements to Griffis after Burrell's murder. At that point, Toney informed Griffis of what just occurred in order to maintain trust and cohesiveness. See Mathis, 932 F.3d at 254–55 ; Ciresi, 697 F.3d at 29–30. And Dontaous Devine's request to Griffis that Griffis dispose of the gun used to murder Burrell furthered BMG/DGF's purpose of not permitting the police to recover a critical piece of evidence concerning the Burrell murder. See, e.g., Mathis, 932 F.3d at 254–55 ; Smith, 441 F.3d at 262 ; see also Graham, 711 F.3d at 453. Accordingly, the statements of Dontaous Devine to Griffis furthered each conspiracy and were admissible.
As for Griffis's statement to Arthur Gunn about the Burrell murder, Gunn was a member of BMG/DGF and the conspiracy to participate in a pattern of racketeering. See Day 4 at 109, 111. Before joining BMG/DGF, Gunn met Mangum and other BMG/DGF members and spent time with them. See id. at 108–10. When Gunn decided to join BMG/DGF, his initiation into the gang involved driving Mangum to a location where Mangum planned to commit a violent act. See id. at 109–12. As Gunn testified, Griffis had his reasons for telling Gunn about the Burrell murder. See id. at 143; Shores, 33 F.3d at 444 ; Smith, 441 F.3d at 262. Both men were part of BMG/DGF when Griffis had this conversation with Gunn, and the conversation helped to maintain the trust and cohesiveness within the conspiracy. See Mathis, 932 F.3d at 254–55 ; Ciresi, 697 F.3d at 29–30. Accordingly, Griffis's statement was in furtherance of the conspiracy, and Gunn's testimony was admissible.
As for Dontaous Devine's statements concerning the Burrell murder to Tremayne Faison, Faison was a member of the 9-Trey Bloods (another Blood subset), not BMG/DGF. See Day 3 at 243. However, Faison supplied drugs to Dontaous Devine, Demetrice Toney, and Brandon Mangum. See id. at 246–47. Faison also met Dontaous Devine when they were approximately thirteen years old, before either Faison or Dontaous Devine joined a gang, and they grew up together. See id. at 247. At some point after the Burrell murder, Dontaous Devine came to Faison's uncle's residence on Blount Street, which was located in territory associated with the 9-Trey Bloods. See id. at 262. Faison sold drugs from this residence. See id. at 248. At the time of Dontaous Devine's conversation with Faison, Faison was aware that some members of the 9-Trey Bloods and BMG/DGF were involved in a violent, ongoing conflict, i.e. "beef." See id. at 249–50. Faison testified, however, that he did not have a beef with BMG/DGF or Dontaous Devine. See id. at 262–63. Dontaous Devine asked Faison to talk with him in the back of the residence, and Dontaous Devine made numerous statements about the Burrell murder. See id. at 248.
As a preliminary matter, Dontaous Devine's statements to Faison concerning his role in the conspiracy to murder Burrell and the murder of Burrell are not "idle chatter" or "casual conversation." Cf. Donnelly v. United States, 228 U.S. 243, 278, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (Holmes, J., dissenting). Rather, Dontaous Devine's statements to Faison, a childhood friend who sold drugs to BMG/DGF members to resell, are part and parcel of BMG/DGF's conspiracy to participate in a pattern of racketeering. Indeed, BMG/DGF ran its drug operation on Haywood Street by selling drugs on Haywood Street. Additionally, Dontaous Devine's statements furthered the conspiracy to participate in a pattern of racketeering by letting Faison know that BMG/DGF would use violence against a rival drug dealer who sold drugs on BMG/DGF turf without paying CRB, but that no violence would come to any drug supplier who sold drugs to Dontaous Devine, who was second in command of BMG/DGF. See Ayala, 601 F.3d at 268–69 ; Smith, 441 F.3d at 262 ; Shores, 33 F.3d at 444. Moreover, Dontaous Devine's statements furthered BMG/DGF's reputation for violence towards individuals with whom the gang had a legitimate "beef." See, e.g., United States v. Adoma, 781 F. App'x 199, 205–06 (4th Cir. 2019) (per curiam) (unpublished); United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988). Thus, the statements were admissible.
B.
Alternatively, Dontaous Devine's statements admitting to being in a conspiracy to participate in a pattern of racketeering and a conspiracy to murder Rodriguez Burrell and to aiding and abetting the murder of Rodriguez Burrell were admissible as statements against penal interest. See Fed. R. Evid. 804(b)(3). Certain hearsay statements are admissible for the truth if the declarant is unavailable as a witness. Under Rule 804(a) of the Federal Rules of Evidence, a declarant is unavailable if, inter alia, he "cannot be present or testify at the trial or hearing because of death ...." Fed. R. Evid. 804(a)(4). If unavailable, a declarant's statement that "a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it ... expose[d] the declarant to ... criminal liability ... and ... is supported by corroborating circumstances that clearly indicate its trustworthiness" is admissible for its truth. Fed. R. Evid. 804(b)(3).
The party seeking to admit such statements must show: "(1) the declarant is unavailable, (2) the statement is genuinely adverse to the declarant's penal interest, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement." United States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995) (quotation omitted); see United States v. Benson, 957 F.3d 218, 229 (4th Cir. 2020) ; United States v. Alvarado, 816 F.3d 242, 250 (4th Cir. 2016) ; United States v. Moore, 810 F.3d 932, 939 (4th Cir. 2016) ; Dargan, 738 F.3d at 649. The party seeking the statement's admission must meet these requirements. See, e.g., United States v. Blake, 571 F.3d 331, 350 (4th Cir. 2009) ; Bumpass, 60 F.3d at 1102.
The first requirement under Rule 804(a) (i.e., declarant unavailability) is met. Dontaous Devine committed suicide before Mangum's trial began.
As for whether Dontaous Devine's statements were genuinely adverse to his penal interest, the court may admit only those statements of the declarant that are self-inculpatory. See Williamson v. United States, 512 U.S. 594, 600–01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) ; Dargan, 738 F.3d at 649. The court determines whether a declarant's statement is self-inculpatory "by viewing it in context." Williamson, 512 U.S. at 603–04, 114 S.Ct. 2431 ; see Dargan, 738 F.3d at 649. Statements made to "shift blame or curry favor" are not self-inculpatory. United States v. Jordan, 509 F.3d 191, 203 (4th Cir. 2007) (quotation omitted). In contrast, statements that demonstrate a declarant's "knowledge of significant details about the crime" or "implicate him in a conspiracy" are "intrinsically inculpatory." Dargan, 738 F.3d at 649 (quotations omitted); see United States v. Udeozor, 515 F.3d 260, 267 (4th Cir. 2008) ; Jordan, 509 F.3d at 202. The fact that a declarant's self-inculpatory statement also inculpates the defendant on trial does not bar its admission. See Williamson, 512 U.S. at 603, 114 S.Ct. 2431 ("There are many circumstances in which Rule 804(b)(3) does allow the admission of statements that inculpate a criminal defendant."); see also id. at 606, 114 S.Ct. 2431 (Scalia, J., concurring) ("[A] declarant's statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible co-defendant.").
"[N]o other statement is so much against interest as a confession of murder." Donnelly, 228 U.S. at 278, 33 S.Ct. 449 (Holmes, J., dissenting). The same principle applies to a confession to a conspiracy to commit murder. Not only did Dontaous Devine's statements inculpate him personally in the conspiracy to murder Burrell, the murder of Burrell on May 25, 2009, and the attempted disposal of the gun used to murder Burrell, but also the statements revealed that Dontaous Devine had extensive knowledge concerning BMG/DGF's motive for murdering Burrell, the plan to murder Burrell, the loss of Toney's shoe during Toney's flight from the murder scene, and the efforts made to conceal evidence of Burrell's murder. See Dargan, 738 F.3d at 649 ; Udeozor, 515 F.3d at 267 ; Jordan, 509 F.3d at 202. When Dontaous Devine made these statements to his fellow gang members or criminal associates, Dontaous Devine was not seeking to shift blame to others or to curry favor. Rather, he was making damning admissions against his penal interest concerning the Burrell murder. Accordingly, Dontaous Devine's statements are self-inculpatory.
As for corroborating circumstances, the court examines: "(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement, (2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie, (3) whether the declarant repeated the statement and did so consistently, (4) the party or parties to whom the statement was made, (5) the relationship of the declarant with the accused, and (6) the nature and strength of independent evidence relevant to the conduct in question." Bumpass, 60 F.3d at 1102 ; see United States v. Kivanc, 714 F.3d 782, 792 (4th Cir. 2013) ; United States v. Lowe, 65 F.3d 1137, 1146 (4th Cir. 1995). The analysis focuses on the trustworthiness of the statement, and the court must be satisfied that cross-examination "would add little to test the hearsay's reliability." Bumpass, 60 F.3d at 1102 ; see Lowe, 65 F.3d at 1145–46 ; United States v. Brainard, 690 F.2d 1117, 1124–25 (4th Cir. 1982).
As for Dontaous Devine's statements, when he made the statements, he was still exposed to prosecution and had not pleaded guilty. See Dargan, 738 F.3d at 650 ; Kivanc, 714 F.3d at 792–93. Dontaous Devine had no reason to falsely inculpate himself, Brandon Mangum, Demetrice Devine, and Demetrius Toney in the conspiracy to murder Rodriguez Burrell or the murder of Rodriguez Burrell. Rather, Dontaous Devine made the statements to fellow gang members or criminal associates he trusted or made the statements to criminal associates he wanted to intimidate in order to pay CRB. Moreover, Dontaous Devine repeated his statement about the conspiracy to murder Rodriguez Burrell and the murder of Rodriguez Burrell to many people. Finally, extensive physical evidence, eyewitness testimony, and other testimony corroborate Dontaous Devine's declarations against penal interest. See Dargan, 738 F.3d at 650 ; Bumpass, 60 F.3d at 1103 ; Lowe, 65 F.3d at 1146. Accordingly, Dontaous Devine's statements are sufficiently corroborated by the circumstances surrounding the statements, and were admissible under Rule 804(b)(3). See Dargan, 738 F.3d at 650 ; Jordan, 509 F.3d at 202 ; see also United States v. Hano, 922 F.3d 1272, 1289 (11th Cir. 2019) ; United States v. Volpendesto, 746 F.3d 273, 287–89 (7th Cir. 2014) ; United States v. Smalls, 605 F.3d 765, 780–87 (10th Cir. 2010) ; United States v. Johnson, 581 F.3d 320, 326–28 (6th Cir. 2009) ; United States v. US Infrastructure, Inc., 576 F.3d 1195, 1208–09 (11th Cir. 2009) ; United States v. Williams, 506 F.3d 151, 155 (2d Cir. 2007) ; United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007).
The physical evidence included Toney's Nike Air Force One shoe recovered near the murder scene (Gov. Ex. 20.10A), the nine-millimeter gun (Gov. Ex. 20.10G), multiple nine-millimeter shell casings recovered at the murder scene (Gov. Exs. 20.10B, 20.10C, 20.10D), and a stipulation that the nine-millimeter gun was the gun that fired the rounds associated with the nine-millimeter shell casings recovered at the murder scene. See [D.E. 803] 5; Gov't Ex. 92. The eyewitness testimony included the testimony of Derek Griffis, Jamario Jones, Sandy Spence, Rodney Burrell, Stephon Smith, and Timothy Collins. The other testimony included co-conspirator statements of Randy Merritt.
As for the Confrontation Clause, Dontaous Devine's statements to his fellow gang members and criminal associates admitting to participating in a conspiracy to murder Rodriguez Burrell and to aiding and abetting such murder are non-testimonial. See Hano, 922 F.3d at 1287 ; Volpendesto, 746 F.3d at 289–90 ; Dargan, 738 F.3d at 650–51 ; Smalls, 605 F.3d at 778–87 ; Johnson, 581 F.3d at 324–26 ; US Infrastructure, Inc., 576 F.3d at 1209 ; Udeozor, 515 F.3d at 269–70 ; Williams, 506 F.3d at 155–57 ; Johnson, 495 F.3d at 976 ; cf. Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173, 2183, 192 L.Ed.2d 306 (2015) (holding that testimonial statements are those that are given "with the primary purpose of creating an out-of-court substitute for trial testimony"); Crawford v. Washington, 541 U.S. 36, 50–51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, the statements do not violate the Confrontation Clause. Accordingly, the statements were admissible.
C.
As for Howell's grand jury testimony in which Howell recounted Mangum's statements to him about the Burrell murder, the court properly overruled the belated general objections. During the morning of the third day of trial, the government indicated that it intended to call Roderick Howell to testify, and asked the court to approach the bench. At the bench conference, the AUSA informed the court that Howell was present in the courthouse, but refused to enter the courtroom despite a subpoena to testify. The AUSA requested the assistance of the United States Marshal to bring Howell into the courtroom. The court agreed, and gave the jury a recess so that Howell could be brought into the courtroom outside the jury's presence. See Day 3 at 30–31.
It took almost 30 minutes for the United States Marshal to bring Howell into the courtroom. See id. at 31. Three Deputy United States Marshals had to handcuff Howell, nearly carry him into the courtroom, and place him on the witness stand. After Howell was seated, the jury returned. Howell was sworn, and the AUSA began questioning Howell. See id.
As the questioning began, Howell glanced at the AUSA, but then looked down at the table immediately in front of his seat on the witness stand. Howell never looked at the defense tables where Devine and Mangum glowered at him. The AUSA asked Howell a series of biographical questions, questions about his former affiliation with the Gangsta Disciples, questions about his federal conviction and sentence on two unrelated charges, and questions about his plea agreement. Without looking up, Howell answered those questions directly. See id. at 31–36. The AUSA then asked Howell whether he testified before the federal grand jury in the Eastern District of North Carolina on June 22, 2016. Id. at 36. Howell responded, "Correct." Id. The AUSA then asked Howell whether he knew about BMG/DGF. Howell's voice got lower and he testified that he was "familiar" with BMG/DGF, but did not know its leader:
Q: Who was the leader of BMG?
A: I don't know the true leader of the BMG was.
Q: Who did you believe the leader to be?
A: I don't know. Could have been anybody.
Id. at 37. Howell's testimony contradicted his grand jury testimony. See Gov't Ex. 93 at 13–14. The AUSA then asked Howell whether he remembered testifying before the federal grand jury and showed him a copy of the transcript of his grand jury testimony. See Day 3 at 37; Gov't Ex. 93. Howell looked at the document. After questioning Howell about the authenticity of the document, the government moved to admit a written transcript of Howell's grand jury testimony. See Day 3 at 37. Neither defendant objected, and the court admitted a written transcript of Howell's grand jury testimony pursuant to Federal Rule of Evidence 801(d)(1)(A). See id. at 37–38. After the court admitted the written transcript of Howell's grand jury testimony, the AUSA resumed questioning Howell about his federal grand jury testimony, but Howell feigned memory loss:
Q: Now, when you testified before the grand jury you were under oath, correct?
A: I guess.
Q: Do you recall being sworn in?
A: I can't remember.
Q: Do you recall being asked a question about who was over BMG?
A: I can't remember it was so long ago.
Q: Do you recall anything from your grand jury testimony?
A: I can't remember.
Id. at 38.
After this colloquy, the AUSA asked permission to play an audio recording of portions of Howell's grand jury testimony. The court agreed, and the AUSA also asked the court to admit the audio recording of Howell's grand jury testimony. The court admitted the audio recording of Howell's grand jury testimony pursuant to Federal Rule of Evidence 801(d)(1)(A). Neither defendant objected. The AUSA then began to play a portion of the audio of Howell's grand jury testimony to impeach Howell and to show that his sworn testimony to the federal grand jury contradicted his testimony in court. See id.
After the audio of Howell's grand jury testimony began to play, Demetrice Devine's attorney made a general objection. The court overruled the objection, but stated that the court would hear Devine's objection after the audio concluded. See id. at 39. The audio continued to play. The AUSA then stated that the AUSA intended to skip over portions of the audio recording. The court allowed the government to do so. At that point, Mangum's attorney made a general objection to playing the audio recording of Howell's grand jury testimony, and to the government skipping portions of the audio recording. The court overruled the objection, stating that the transcript and the audio recording of Howell's grand jury testimony were already admitted into evidence, and the jury would have both to consider during deliberations. The AUSA then continued to play portions of the audio recording of Howell's grand jury testimony. Demetrice Devine's attorney did not renew his objection or seek to be heard on his prior objection. See id. at 39–40. Neither Demtrice Devine's attorney nor Brandon Mangum's attorney renewed any objection to the court's admission of the written transcript and audio recording of Howell's grand jury testimony.
They also did not seek a limiting instruction. Cf. Fed. R. Evid. 105 ; United States v. Gallo, 763 F.2d 1504, 1528–29 (6th Cir.), modified on rehearing on other grounds sub nom., United States v. Graewe, 774 F.2d 106 (6th Cir. 1985).
In Howell's grand jury testimony, he stated that he went to middle school with Mangum, that he and Mangum dated two women who were sisters, and that he was detained in the same jail with Mangum after Mangum was arrested on state charges for the Burrell murder. See Gov't Ex. 93 at 10. According to Howell, while briefly placed in the same visiting room together at the jail, Mangum made numerous admissions to Howell about the Burrell murder. Mangum told Howell that the murder resulted from a high-ranking gang member's order, that "Respect" founded BMG and gave the order, that "Boochie" passed along the order, that the murder took place on the front porch of a house on Haywood Street, that the victim was named ReUp or Rodriguez, that one of the gang members left his shoe near the murder scene, that the shoe was the only thing that could "fuck them up," that Mangum was present when the murder happened, that the murder weapon was a 9 millimeter, that Derek Griffis got the 9 millimeter after the murder, and that the murder was necessary because "they didn't want him selling drugs on the[ir] turf." Id. at 11–20, 23–29.
On September 25, 2009, in Wake County, Mangum was charged with first degree murder and conspiracy concerning the murder of Rodriguez Burrell. See Presentence Investigation Report ("PSR") [D.E. 844] ¶ 60. Mangum was arrested and detained. On August 4, 2011, state authorities dismissed the state charges without prejudice. See id.
On cross-examination, each defense attorney attacked Howell's credibility. Devine's attorney asked if Howell was on drugs given how he was acting. Howell responded, "What was the question?" Day 3 at 41–42. Devine's attorney then asked "Isn't it true that an OG is a higher position in the gang structure than a general?" and Howell responded, "You just asked me that, sir, and I said I don't know." Id. at 42. For each subsequent question Devine's attorney asked, Howell responded either that he did not know or that he could not remember. See id.
When Mangum's attorney cross-examined Howell, he asked a series of questions about Mangum's admissions that Howell testified to before the grand jury on June 22, 2016:
Q: Just a few minutes ago, and I'm sure we can read it back to you, you indicated you were in the red or green pod, and you also hear it testified to you when you appeared before the grand jury. Do you recall that testimony?
A: I don't know I mean it's been so long ago, I don't ...
Q: So I think you might recall that out at Hammond Road the larger of the two Wake County detention centers they don't have numbered or colored pods, instead they refer only to the floor that they're on and then by a letter designation. Does that ring a bell?
A: No. I can't remember, sir.
Q: How many times have you been held in detention at the Wake County detention center?
A: I don't know. I don't know.
Q: Do you recall whether or not you had to take an elevator to get to the pod where you were being held at the Wake County detention center?
A: I can't remember.
Q: Because you indicated that the pod that you were in had a color, do you recall that you come off of the elevator, you go through what's called a sally port which is two doors, one opens and then you walk through and it closes behind you, you walk through the next one and the control tower is right in the middle and there are four pods in the comers of that facility, does that ring a bell?
A: I don't know. I can't remember, sir.
Q: So off of those four pods there is a supply closet, there's an entrance to the control booth, there's a meeting room for attorneys and there's a visitation room that is about five fee away from the control tower and always has a guard sitting outside of it. Does that ring a bell?
A: I can't remember.
Q: Do you recall how may screens there are for visitation because there is no in person visitation at the public safety center do you recall how many screens there are in the visitation room?
A: No, sir, I don't pay attention I don't remember, sir.
Q: Is it a large room or a small room?
A: I don't know.
...
Q: You said that—in your grand jury that you were held in a pod with Red or Derek Griffis, do you recall hearing that on the tape and testifying to that previously?
A: I—I don't know, sir.
Q: You don't recall being asked questions and indicating that you were held in a pod with someone who was referred to on the streets as Red, whose real name was Derek Griffis?
A: I don't know. I don't know, sir.
Q: Derek Griffis is a talker, isn't he?
A: I don't know. So—
...
Q: So if you were in a pod with Derek Griffis as you previously testified to the grand jury and this jury has heard you say, your voice, your words, if you were in a pod with Derek Griffis, you would have ample opportunity to talk to Derek Griffis who is a talker; is that right?
A: I can't recall, sir.
...
Q: All the details that you have about Brandon Mangum that you previously testified to before the grand jury you received all of that information from Derek Griffis, didn't you?
A: I can't recall, sir. I don't remember.
...
Q: Your testimony, Mr. Howell, is that Mr. Mangum provided you all of this detail in that four-foot by eight-foot room; is that right with other people around with the guard right outside the door. Do you recall testifying before the grand jury in your words, we didn't get along, meaning Gangster Disciples versus BMG, do you recall that testimony? Do you recall we didn't deal with them? Do you remember saying those words, Mr. Howell?
So your testimony to the grand jury here today is that Brandon Mangum who we have admitted is a member of BMG provided you with all of these details about the most serious crime for which someone can be charged and he did all of that in a four-foot by eight-foot room with other people around, is that your testimony, Mr. Howell?
Id. at 44–50. After Howell refused to initially answer the question, Mangum's counsel twice restated the question. Howell refused to answer. Finally, after the court advised Howell that he could be held in contempt for not answering the question, Howell responded "I don't know." Id. at 50–51.
Under Rule 801(d)(1)(A) of the Federal Rules of Evidence, an out-of-court statement is not hearsay if "[t]he declarant testifies and is subject to cross-examination about a prior statement, and that statement ... is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding ...." Fed. R. Evid. 801(d)(1)(A). Grand jury testimony is admissible under Rule 801(d)(1)(A) both for its substance and for impeachment if the declarant is subject to cross-examination about the testimony. See United States v. Vance, 216 F. App'x 360, 361–62 (4th Cir. 2007) (per curiam) (unpublished); United States v. Scruggs, 356 F.3d 539, 547 n.4 (4th Cir. 2004) ; United States v. Bereano, 161 F.3d 3, 1998 WL 553445, at *14 n.12 (4th Cir. 1998) (unpublished table decision); United States v. Stockton, 788 F.2d 210, 219 n. 14 (4th Cir. 1986).
As for the inconsistency requirement, a witness's testimony at trial does not have to directly contradict his grand jury testimony. Rather, "if a witness has testified to ... facts before a grand jury and forgets or denies them at trial, his grand jury testimony ... falls squarely within Rule 801(d)(1)(A)." United States v. Marchand, 564 F.2d 983, 999 (2d Cir. 1977) ; see United States v. Owens, 484 U.S. 554, 563, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) ("It would seem strange, for example, to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony, see Rule 801(d)(1)(A), by simply asserting a lack of memory of the facts to which the prior testimony related.") (citing United States v. Murphy, 696 F.2d 282, 283–84 (4th Cir. 1982), overruled on other grounds by Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) ); United States v. Truman, 688 F.3d 129, 142 (2d Cir. 2012) ; United States v. Milton, 8 F.3d 39, 46–47 (D.C. Cir. 1993) ; United States v. Grandison, 780 F.2d 425, 431 (4th Cir. 1985), vacated on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987). This principle "protects against the turncoat witness who changes his story on the stand and deprives the party calling him of evidence essential to his case." Truman, 688 F.3d at 142 (quotation omitted); see Grandison, 780 F.2d at 431 ; United States v. DiCaro, 772 F.2d 1314, 1322 (7th Cir. 1985). The principle applies equally to a witness who feigns ignorance of his grand jury testimony, or a witness who manifests his reluctance to testify at trial. See United States v. Mornan, 413 F.3d 372, 379 (3d Cir. 2005) (collecting cases); DiCaro, 772 F.2d at 1317–18, 1321–25.
As for Howell's grand jury testimony, Howell physically resisted entering the courtroom and then either contradicted or feigned memory loss concerning numerous topics that he testified about in the grand jury. In admitting Howell's grand jury testimony, the court found that Howell was feigning his sudden onset of memory loss in the middle of his trial testimony concerning his knowledge of BMG/DGF and his grand jury testimony. The court did not state this finding to the jury, but made the finding implicitly under Federal Rule of Evidence 104. The AUSA expected Howell to testify consistent with his grand jury testimony, but Howell's contradictory testimony and feigned memory loss deprived the government of evidence in support of its case. See Truman, 688 F.3d at 142 ; Mornan, 413 F.3d at 379 ; Grandison, 780 F.2d at 431 DiCaro, 772 F.2d at 1317–18, 1321–25 ; Marchand, 564 F.2d at 999. Moreover, Howell was subjected to vigorous and effective cross-examination from Devine's counsel and Mangum's counsel concerning his grand jury testimony.
If Mangum was making a hearsay objection concerning his admissions to Howell that Howell recounted in Howell's grand jury testimony, the objection was meritless. See Fed. R. Evid. 801(d)(2)(A). If Mangum was making a Confrontation Clause objection based on the theory that Mangum had the right to confront himself, the objection also was meritless. See, e.g., United States v. Hieng, 679 F.3d 1131, 1140 (9th Cir. 2012) ("The Sixth Amendment simply has no application [to the defendant's own statements] because a defendant cannot complain that he was denied the opportunity to confront himself."); United States v. Gibson, 409 F.3d 325, 338 (6th Cir. 2005) (same).
If Mangum was objecting that Howell's grand jury testimony was an inadmissable "testimonial" statement under the Confrontation Clause, the court properly overruled the objection. In admitting Howell's grand jury testimony at the trial under Rule 801(d)(1)(A), the court recognized that Howell's grand jury testimony was "testimonial" under Crawford. See Crawford, 541 U.S. at 50–51, 124 S.Ct. 1354. Nonetheless, Howell's grand jury testimony was admissible under the Confrontation Clause because Howell "appeared for cross-examination at trial" concerning the statements. Id. at 59 n.9, 124 S.Ct. 1354. And when a declarant such as Howell appears at trial and is subject to cross-examination about the statements, "the Confrontation Clause places no constraints at all on the use of [Howell's] prior testimonial statements." Id.; United States v. Owens, 484 U.S. 554, 557–60, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) ; California v. Green, 399 U.S. 149, 165–68, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) ; Delaware v. Fensterer, 474 U.S. 15, 21–22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) ; United States v. Arellano-Banuelos, 927 F.3d 355, 365 (5th Cir. 2019) ; United States v. Charboneau, 613 F.3d 860, 861 (8th Cir. 2010) ; United States v. Pursley, 577 F.3d 1204, 1224–25 (10th Cir. 2009) ; United States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005) ; Milton, 8 F.3d at 47.
As Judge Learned Hand observed 95 years ago:
The possibility that the jury may accept as truth the earlier statements in preference to those statements made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they concluded that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.
Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925). When a witness gives inconsistent sworn statements, "[t]he jury is alerted by the inconsistency in the stories, and its attention is focused on determining either that one of the stories reflects the truth or that the witness who has apparently lied once, is simply too lacking in credibility to warrant its believing either story." Green, 399 U.S. at 160, 90 S.Ct. 1930.
With respect to all witnesses at the trial, the jury had to decide whether to believe all of what the witness said, some of what the witness said, or none of what the witness said. The same principle applied to Howell's testimony. In closing argument, the United States argued that Howell's reluctance to testify at the trial in the same manner that he testified to the grand jury was because Howell was petrified of Devine, Mangum, and BMG/DGF. See Day 6 at 135–36. In contrast, while cross examining Howell and in closing argument, Mangum contended that Howell's testimony about Mangum's alleged admissions was completely fictional, that Mangum and Howell were never in the visiting room at a local jail together, that Mangum never made such admissions to Howell, that Howell was untruthful in what he told the grand jury and in what he told the jury, that Howell's odd behavior and demeanor at trial were due to his untruthfulness, that Derek Griffis provided all the information to Howell about the Burrell murder that Howell told the grand jury, and that the jury should reject all of Howell's incredible grand jury testimony and trial testimony. See id. at 114–17.
In reaching its verdict, the jury considered all of the evidence and the credibility of all the witnesses. The court did not err in its evidentiary rulings.
D.
As for Mangum's motion for a new trial, the verdict was not against the weight of evidence. Rather, the verdict comported with the tsunami of evidence that the United States presented against Mangum concerning counts one, two, three, and six. Thus, the court denies Mangum's motion for a new trial.
IV.
In sum, the court DENIES Mangum's renewed motion for judgment of acquittal and motion for a new trial [D.E. 809]. SO ORDERED. This 9th day of June 2020.