Argued: October 4, 2017
Appeal
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:13-cr-20764-5-Paul D.
Borman, District Judge.
ARGUED:
Karen
J. Davis Roberts, Saline, Michigan, for Appellant in 15-228.
Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids,
Michigan, for Appellant in 15-2503.
Mark
J. Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
ON
BRIEF:
Karen
J. Davis Roberts, Saline, Michigan, for Appellant in 15-228.
Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids,
Michigan, for Appellant in 15-2503.
Mark
J. Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
Before: GIBBONS, COOK, and THAPAR, Circuit Judges.
OPINION
JULIA
SMITH GIBBONS, CIRCUIT JUDGE.
This
appeal arises from the convictions of two members of the
Phantom Motorcycle Club ("PMC"), William Frazier
and Christopher Odum. The government brought various charges
against these two appellants and twelve others[1] in a
fifteen-count indictment. Although the case initially
proceeded as a consolidated trial against all defendants,
Frazier and Odum were severed, and the case against them
proceeded separately. After a three-week trial, the jury
convicted Frazier of two counts of assault with a dangerous
weapon in aid of racketeering, 18 U.S.C. § 1959(a)(3)
(VICAR), and one count of use and carry of a firearm during,
and in relation to, a crime of violence, 18 U.S.C. §
924(c). Odum was convicted of conspiracy to commit murder in
aid of racketeering, 18 U.S.C. § 1959(a)(5) (VICAR).
Frazier
and Odum raise numerous challenges to their convictions on
appeal. Specifically, they assert several claims of
insufficient evidence to sustain their convictions as well as
claims of improper venue, the improper admission of hearsay
statements, and due process violations for failure to call a
witness or provide certain evidence to the defense. For the
reasons addressed below, we affirm the convictions.
I.
PMC is
an "outlaw" motorcycle club that has existed since
1968. The club has chapters in Michigan, Ohio, and six other
states, and Detroit is the "mother" chapter. PMC
has a hierarchical structure, with a national president, vice
president, and enforcers. Below the national officers are
local chapters with presidents and vice presidents. Members
wear leather vests, known as "rags, " which are
important symbols in motorcycle club culture. Rags display a
certain member's club and that club's territory, and
PMC competes with rival outlaw clubs to be the dominant club
within certain territories.
Frazier
became the vice president of the Pontiac chapter of PMC in
2010 after transferring from another PMC chapter.
Frazier's charges and convictions in this case relate to
a shooting that took place during a PMC anniversary gathering
in Columbus, Ohio, in October 2012. After arriving in
Columbus for the event, Frazier met up with other
Phantoms-Vincente Phillips and Maurice Williams-at the PMC
clubhouse there. These three men, while wearing their rags,
went to get food at another club's clubhouse. While
there, a man wearing a third club's rags bumped into
Williams, and Williams and Phillips began fighting with him
and another man who attempted to intervene. Seeing this
altercation, Frazier fired two shots, hitting Keith Foster
and Shalamar Thompson, who were both members of the Zulus
motorcycle club. The PMC members then fled the scene and
immediately returned to the PMC clubhouse to report to PMC
leaders what happened. It was later determined that Foster
was the Zulus's national president. As a result, PMC
leadership decided that the Pontiac chapter would have to pay
for the PMC national president, Antonio Johnson, to travel to
Cleveland to meet with the Zulus in order to prevent
retaliation for the shooting. At trial, Williams, Phillips,
and Phantom-turned government informant Carl Miller all
testified to this incident.
Odum
joined PMC's Detroit chapter in 2011, and his charges
stem from his involvement in the later PMC conspiracy to
murder members of a rival motorcycle club, the Hell Lovers.
After PMC member Steven Caldwell was murdered in September
2013, Johnson held a meeting in which he called for
retaliation against the Hell Lovers-the suspected culprits.
Johnson announced a plan to murder three Hell Lovers, which
would cause other Hell Lovers to travel to Michigan for the
funerals, at which time PMC would attack and kill a large
number of their members. Although Odum did not attend this
meeting, he was apprised of the plan. In a recorded
conversation with Miller, Odum stated that Johnson had given
Odum the green light to kill Hell Lovers. The plan was
disrupted when the ATF and FBI executed search warrants on
Johnson's and another Phantom member's homes. These
searches and the evidence uncovered during them led to the
indictment in this case.
II.
Odum
and Frazier first argue that there was insufficient evidence
to convict them of violent crimes in aid of racketeering
under 18 U.S.C. § 1959
("VICAR").[2] We hold there is sufficient evidence to
sustain these convictions.
A
district court's refusal to grant a motion to acquit for
insufficiency of the evidence is reviewed de novo.
United States v. Vichitvongsa, 819 F.3d 260, 270
(6th Cir. 2016), cert. denied, 137 S.Ct. 79 (2016).
The standard is "whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). "Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not
remove every reasonable hypothesis except that of
guilt." United States v. Lowe, 795 F.3d 519,
522-23 (6th Cir. 2015) (quoting United States v.
Algee, 599 F.3d 506, 512 (6th Cir. 2010)). This standard
imposes "a very heavy burden" on the defendants.
United States v. Barnes, 822 F.3d 914, 919 (6th Cir.
2016) (quoting United States v. Abboud, 438 F.3d
554, 589 (6th Cir. 2006)).
18 U.S.C. § 1959(a) prohibits committing or conspiring
to commit certain violent crimes, including murder and
assault with a dangerous weapon, "for the purpose of
gaining entrance to or maintaining or increasing [one's]
position in an enterprise engaged in racketeering activity .
. . ." 18 U.S.C. § 1959(a). To establish a VICAR
violation, therefore, the government must show:
(1) that the Organization was a RICO enterprise, (2) that the
enterprise was engaged in racketeering activity as defined in
RICO, (3) that the defendant in question had a position in
the enterprise, (4) that the defendant committed the alleged
crime of violence, and (5) that his general purpose in ...