Baltimore gang members fail to overturn convictions

Where members of a West Baltimore gang challenged their convictions on numerous grounds, including that the Racketeer Influenced and Corrupt Organizations Act, or RICO, statute was void for vagueness, that their Sixth Amendment rights were violated or that there was insufficient evidence supporting the convictions, these challenges were rejected.

Background

Montana Barronette, Brandon Wilson, Linton Broughton, John Harrison, Terrell Sivells, Taurus Tillman, Timothy Floyd and Dennis Pulley operated an enterprise known as “Trained to Go,” or TTG, within one of West Baltimore’s neighborhoods. Appellants distributed drugs and engaged in countless acts of violence using firearms. They now bring numerous challenges to their convictions and sentences.

RICO

Appellants argue that the phrases “pattern of racketeering activity” and “enterprise”

are unconstitutionally vague. But this court has twice rejected void-for-vagueness challenges to RICO statute. Appellants ask the court to reconsider those decisions in light of three void-for-vagueness cases from the Supreme Court. But none of those cases justifies such reconsideration, as they focus only on the residual “crime of violence” or “residual clause” definitions other statutes. 

Sixth Amendment

Appellants next contend that the district court violated their Sixth Amendment rights to a public trial when it limited the number of people who could gather in the public gallery to 25 people. The court disagrees.

First, the district court advanced overriding interests of maintaining order and preventing witness intimidation by ordering the partial closure. Second, the partial reduction in capacity was no broader than necessary. Further, the court set up an overflow room for spectators once the number of spectators in the courtroom reached the capacity limit. Third, the district court both considered and implemented reasonable alternatives to closing the courtroom. Finally, the district court made adequate factual findings to support the capacity limitation.

Motions to suppress

Sivells and Floyd appeal the court’s denial of their motions to suppress. The court finds that there is ample probable cause supporting the tracking and wiretap orders for TT4 and TT5, as well as the search warrant for 2307 Avalon Avenue. 

Sivells also challenges the admission of statements he made to law enforcement after his arrest on Oct. 27, 2016. He contends that officers improperly continued questioning him after he invoked his right to counsel. But the officers made clear that they would stop the questioning if he wanted to have an attorney present. But instead of asking for an attorney, Sivells simply signed the waiver-of-rights form voluntarily, relinquishing his rights and continuing to speak with law enforcement.

922 convictions

Wilson and Pulley assert that their § 922(g)(1) convictions should be reversed after the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). With respect to Pulley, while his misdemeanors placed him into the category of people prohibited from possessing firearms, there is a lack of record evidence that Pulley knew that he was convicted of a state crime for which the punishment was for more than two years. Therefore, the court agrees that the Rehaif error affected his substantial rights.

Unlike Pulley, Wilson had been convicted of robbery with a dangerous weapon, which is a felony under Maryland law. Thus, the presumption that he would ordinarily know he was a felon applies. Because Wilson offers no argument to rebut that presumption, his conviction is affirmed.

Mistrial

Montana Barronette and Pulley contend that the district court abused its discretion by denying their motion for a mistrial because a government witness stated during cross-examination that he saw a news report that Barronette was the “number one gun puller in Baltimore.” They have not established how this witness statement is an “extraordinary circumstance” that prejudiced them. First, the statement only concerned Barronette, not Pulley. Second, while the statement was related to Barronette’s guilt, the district court gave a curative instruction, and there is no overwhelming probability that the jury was unable to heed it.

Remaining arguments

Appellants argue the jury lacked sufficient evidence to find that (1) the alleged RICO conspiracy substantially affected interstate commerce; (2) Wilson possessed a firearm in furtherance of a drug conspiracy; (3) the drug conspiracy involved one kilogram or more of heroin; (4) Sivells and Floyd conspired to murder Antonio Addison and (5) Broughton conspired to murder unknown individuals. The court disagrees and finds that there was sufficient evidence for the jury’s verdicts.

Harrison challenges the district court’s admission of statements that Markee Brown made prior to his death to police and a grand jury, in which Brown stated that Harrison robbed him and Dominique Harris and then Harrison murdered Harris. The district court found that Brown’s testimony was admissible under the forfeiture-by-wrongdoing exception to the Confrontation Clause and to the hearsay rule because it found by a preponderance of the evidence that TTG members murdered Brown to prevent him from testifying and Harrison acquiesced in that murder. 

Even if the district court erred in allowing Brown’s testimony, that error is harmless as Harrison’s convictions and the guidelines range would have been the same. Finally, while Sivells, Broughton and Floyd assert that their sentences are procedurally and substantively unreasonable, the court disagrees.

Pulley’s § 922(g)(1) conviction vacated and reversed. Remaining convictions and sentences affirmed.

United States v. Barronette, Case Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, 19-4562, 19-4726, Aug. 18, 2022. 4th Cir. (Floyd), from DMD at Baltimore (Blake). Steven M. Klepper and Alfred Guillaume III for Appellants. Jason Daniel Medinger for Appellee. VLW 022-2-208. 54 pp.