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United States v. Ledbetter

United States Court of Appeals, Sixth Circuit

July 3, 2019

United States of America, Plaintiff-Appellee,
v.
Robert B. Ledbetter; Christopher A. Harris; Rashad A. Liston; Deounte Ussury; Clifford L. Robinson, Defendants-Appellants.

          Argued: March 13, 2019

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:14-cr-00127-Algenon L. Marbley, District Judge.

         ARGUED:

          Timothy J. McKenna, TIMOTHY J. MCKENNA, LLC, Cincinnati, Ohio, for Appellant Ledbetter.

          Margaret Sind Raben, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant Harris.

          Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant Liston. Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant Ussury.

          Steven S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for Appellant Robinson. Mary Beth Young, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

         ON BRIEF:

          Timothy J. McKenna, TIMOTHY J. MCKENNA, LLC, Cincinnati, Ohio, for Appellant Ledbetter. Margaret Sind Raben, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant Harris. Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant Liston.

          Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant Ussury. Steven S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for Appellant Robinson.

          Mary Beth Young, Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

          Before: MERRITT, CLAY, and ROGERS, Circuit Judges

          OPINION

          ROGERS, CIRCUIT JUDGE

         The Short North Posse gang-and its two subsidiaries, the Homicide Squad and Cut Throat Committee-wreaked havoc for the better part of a decade in the Short North neighborhood of Columbus, Ohio. To support its drug enterprise, the Short North Posse conducted brutal home-invasion style robberies and planned and executed the murder of rivals, high-value targets, and cooperating witnesses. After a two-month-long jury trial, four of the five appellants-Robert Ledbetter, Deounte Ussury, Rashad Liston, and Christopher Harris-were convicted of RICO conspiracy for their membership in the Short North Posse enterprise. All five, including Clifford Robinson, were convicted of various murders in aid of racketeering and other similar crimes. On appeal, defendants collectively raise more than fifteen claims, only two of which have merit. Ussury's conviction for the murder of Dante Hill in aid of racketeering must be vacated because there is insufficient evidence that Ussury acted with the necessary statutory purpose, and Harris's and Robinson's convictions for murder by firearm during a crime of violence must be vacated in light of United States v. Davis, No. 18-431, ___ S.Ct___, 2019 WL 2570623 at *13 (June 24, 2019).

         I.

         In 2014, a federal grand jury returned an indictment against seventeen defendants, including the five here. The overriding count alleged a RICO conspiracy from 2004 to 2014, in which the Short North Posse enterprise and its associates committed overt racketeering acts ranging from murder and robbery to drug distribution and witness tampering. The indictment alleged more than ten counts of murder in aid of racketeering. More indictments followed and eventually thirteen defendants pleaded guilty, one was convicted after a solo trial, and the five defendants here were tried together before a jury.

         At trial the Government put on more than one hundred witnesses, several of whom were former Short North Posse members. The evidence showed that the Short North Posse, which identified itself as a local affiliate of the national Crips gang, was engaged in buying, selling, and distributing cocaine and marijuana. The gang protected its business and supplemented its income through robberies, often armed and regularly of the brutal home-invasion variety. The Short North Posse maintained its clout through violence and intimidation against those who meddled in its business or harmed or disrespected its members.

         Apparently, Ledbetter was the de facto leader of the gang, and under his management the gang formed two sub-groups, known as the "Cut Throat Committee" and "Homicide Squad," specializing in murders and robberies of rival gang members, competing drug dealers, and other deep-pocket targets. Ledbetter often orchestrated these jobs, and any gang members and outside associates who participated would typically be paid or split the spoils. Former Short North Posse members identified Ledbetter, Liston, Harris, and Ussury as members or associates of the Homicide Squad.

         At trial, the jury heard evidence about eight charged murders, discussed in more detail below in connection with our analysis of the claims on appeal. Those murders include the revenge killing of Alan Johnson for the death of Ledbetter's brother, the murder of Donathan Moon during a night-time raid of a target's house and business, and the assassination of Crystal Fyffe for her cooperation with police. In addition to those murders, the jury heard about many other criminal acts in furtherance of the enterprise conspiracy-like a 2006 gun-battle between the Short North Posse and its rival gang, D-Block, which saw more than three hundred rounds fired and several people shot. After two months of trial, each of the five defendants was convicted and sentenced to at least one mandatory life sentence for murder in aid of racketeering under 18 U.S.C. § 1959, and all but Robinson were convicted of RICO conspiracy, 18 U.S.C. § 1962(d), among several other convictions and sentences.

         II.

         Defendants have raised a number of issues on appeal. All but two lack merit.

         A. Severance Motions

         Ussury and Robinson did not want to be tried with each other or their other codefendants, out of fear that they would be prejudiced by their codefendants' long and ignominious resume of bad acts. They each moved for severance, but the district court held that a joint trial was preferable. Ussury argues that joinder under Federal Rule of Criminal Procedure 8(b) was improper from the start, and both Ussury and Robinson argue that the district court abused its discretion in denying their motions for severance under Rule 14 because of spillover prejudice. Neither argument holds water. Joinder was permissible under Rule 8(b), and the district court did not abuse its discretion in denying severance absent a specific, compelling showing of prejudice.

         Joinder was proper under Rule 8(b) because four of the five defendants (including Ussury) were indicted for the same RICO conspiracy, and all were charged with various murders in furtherance of the same racketeering enterprise. For joinder, the allegations in the indictment are what matter. See United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002). Under Rule 8(b), the government can charge multiple defendants in the same indictment if "they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). Here, the defendants were charged with participating in or assisting the same racketeering enterprise-the Short North Posse-and many were charged in the same racketeering murders too. Every count in the indictment allegedly arose out of defendants' conduct on behalf of or in coordination with the Short North Posse. That is enough for Rule 8(b), as we have long held in RICO conspiracy cases. See United States v. Davis, 707 F.2d 880, 883 (6th Cir. 1983). Forcing the Government to prove these overlapping facts again and again in multiple trials would only cause the sort of unnecessary expense, inconvenience, and delay that joinder is meant to avoid. Cf. United States v. Lane, 474 U.S. 438, 449 (1986).

         Setting the initial joinder aside, Ussury and Robinson together argue that the court abused its discretion by not severing the trials under Rule 14(a) for prejudice. Under Rule 14(a), a district court "may" sever a joint trial if trying the moving defendant together with others "appears to prejudice [the] defendant." Fed. R. Crim. P. 14(a). To overturn a denial of severance, a defendant must show "compelling, specific, and actual prejudice" resulting from the joint trial. See United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005). But neither defendant has done this. Instead they raise generalized concerns that are inherent in joint trials and that have been held to fall short of compelling prejudice: that "proof is greater against a co-defendant," United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992), that each "may have [had] a better chance of acquittal in separate trials," Zafiro v. United States, 506 U.S. 534, 540 (1993), and that "inflammatory evidence [was] admitted against one defendant, not directly involving another codefendant," United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir. 1985). Mere statement of these common concerns is not a specific, compelling showing of actual prejudice.

         Robinson's argument on this front is somewhat stronger because he was not charged with RICO conspiracy or alleged to have been a Short North Posse member. Evidence showed that he was more of an outside associate, helping out on certain jobs in exchange for a share of the profits. Even so, Robinson's charge for murder in aid of racketeering required the Government to prove that the Short North Posse was a racketeering enterprise and that Robinson acted to earn a profit from the enterprise. See 18 U.S.C. § 1959(a). That makes the crimes of Robinson's codefendants in furtherance of that enterprise relevant vis-à-vis Robinson-they speak to the existence and purpose of the enterprise that Robinson was charged with aiding. Thus, much of the evidence putatively against Robinson's codefendants would be admissible against him in a separate trial. "Where the same evidence is admissible against all defendants, a severance should not be granted." See Warner, 971 F.2d at 1196.

         Were there any doubt, the district court gave a limiting instruction-that the jury separately consider evidence against each defendant on each charge. That instruction sufficed to cure any risk of prejudice. See Zafiro, 506 U.S. at 539.

         B. Ledbetter's Suppression Motion

         Ledbetter challenges the district court's refusal to suppress drugs, cash, and a handgun that police discovered on him and in his car during a traffic stop.

         In December 2007, long before trial, Ledbetter ran a red light and turned without signaling and so was pulled over by police. Police had been following Ledbetter since he made a pitstop at a suspected drug house a few miles back. But Ledbetter concedes that the stop was based on the traffic violations and thus lawful. Ledbetter disputes, however, that the officers reasonably suspected him of being armed and dangerous when they ordered him out of the car and frisked him for weapons. The frisk uncovered marijuana and large wads of cash, which gave officers probable cause to search the rest of the car; that search turned up more marijuana, crack cocaine, a 9mm handgun, and $45, 000 in cash. Ledbetter moved to suppress this evidence on the ground that the Terry frisk was unlawful and thus tainted the subsequent dog-sniff and search of the car. In other words, without the drugs discovered during the pat down (which Ledbetter says is unsupported by reasonable suspicion), officers would not have had probable cause to search the car. But the district court correctly held that officers had sufficient reasonable suspicion to perform the pat down.

         Given the totality of the circumstances, the officers reasonably concluded that Ledbetter might be armed and presently dangerous. The Terry frisk was therefore proper. See Arizona v. Johnson, 555 U.S. 323, 331 (2009) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (per curiam)). First, the officers testified (and the district court found) that Ledbetter did not immediately stop after the officers activated their lights and siren. Instead, Ledbetter completed a turn, "slowed down in an apparent feint to pull over, sped up, and then finally pulled over for good" at the next intersection. The initiating officer testified that this behavior was "a huge red flag" because "[w]hen we've seen that before in the past, that's somebody who is trying to hide a gun, or do something to harm us." Second, as the officers approached the car, Ledbetter was facing the passenger seat with his hands toward the center console (rather than looking back at the officers or straight ahead with his hands on the wheel)-an action that the officer testified was consistent with reaching for or hiding a weapon. Third, the officers noticed that Ledbetter was sweating profusely, breathing heavily, and had glassy eyes and "uncontrollably" shaky hands.

         These facts, taken together, support a reasonable suspicion that Ledbetter might have been armed and dangerous. This court has held repeatedly that a driver's behavior-most notably, the failure to immediately pull over and any attempts to evade officers-can support a reasonable suspicion. See, e.g., Hoover v. Walsh, 682 F.3d 481, 495 (6th Cir. 2010); United States v. McCauley, 548 F.3d 440, 445 (6th Cir. 2008); Watkins v. City of Southfield, 221 F.3d 883, 889 (6th Cir. 2000). This court has also found reasonable suspicion where a defendant reaches his hand between the center console and the passenger seat as officers approach. See United States v. Bost, 606 Fed.Appx. 821, 825 (6th Cir. 2015). Ledbetter's overly nervous behavior, although less probative and thus less relevant, see United States v. Noble, 762 F.3d 509, 522 (6th Cir. 2012), may also contribute to a reasonable suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Finally, it is relevant that the stop occurred at night in a high-crime area. See Hoover, 682 F.3d at 495 (citing Wardlow, 528 U.S. at 124). Though individually these facts might not support a reasonable suspicion, together they do.

         In any event, any error in admitting the evidence was harmless. The evidence obtained through the search was not essential to any of Ledbetter's convictions and played only a minimal role in the two-month trial. Ledbetter makes much of the fact that his possession of this contraband was listed in the indictment as an overt act in furtherance of the RICO conspiracy. But it was one of more than one hundred other acts, and was in no way central to his conviction. The jury needed to find only two overt acts to convict Ledbetter of conspiracy-and, in fact, found that Ledbetter committed three murders in connection with the enterprise. In light of the extensive evidence at trial, any error in the admission of this evidence was harmless. See United States v. Garcia, 496 F.3d 495, 506 (6th Cir. 2007).

         C. Expert Testimony

         Liston, Harris, and Ussury argue that the district court improperly allowed opinion testimony by L.A. Police Detective Wayne Caffey, on gang (and specifically Crips) culture and customs, and by Columbus Police Lieutenant Smith Weir, on Columbus gangs specifically (including the Short North Posse). They did not object on these grounds below, so their claims are subject to "plain error" review. There was no plain error here. The court properly followed the procedure set out in United States v. Johnson, 488 F.3d 690 (6th Cir. 2007), for qualifying Detective Caffey as an expert, Detective Caffey's expert testimony on gang customs was relevant, and the Government's failure to properly notice Detective Caffey as an expected witness was harmless. As to Lieutenant Weir, the court did not abuse its discretion in permitting his lay-witness opinion testimony about the Short North Posse.

         As an initial matter, these challenges are subject to "plain error" review because the defendants did not object below. See Johnson, 488 F.3d at 697. Defendants are conspicuously silent on this point as to Lieutenant Weir but contend that they did object to Detective Caffey's qualification as an expert. The transcript tells a different story. To be sure, defense counsel asked the court at sidebar whether Caffey "[had] been qualified and declared an expert," but the court responded by reminding counsel that an expert designation need not be made on the record in front of the jury under Johnson, 488 F.3d at 698. Asking whether Detective Caffey had been qualified is not the same as objecting to his qualification. The court identified the controlling qualification procedure under Johnson, but defendants failed to follow it.

         Detective Caffey. Defendants first argue that the district court failed to properly assess Detective Caffey's qualifications or formally certify him as an expert. But that argument misunderstands the process that this court blessed in Johnson for qualifying law enforcement experts. To prevent the jury from drawing any implicit note of approval from a court's certification of a witness as an expert, Johnson held that a court should not qualify a witness before the jury at the outset of testimony. "Instead, the proponent of the witness should pose qualifying and foundational questions and proceed to elicit opinion testimony. If the opponent objects, the court should rule on the objection, allowing the objector to pose voir dire questions to the witness's qualifications if necessary and requested." Id. at 697-98. Had defendants objected after Detective Caffey testified about his background and qualifications, then the court would have been required to rule on Caffey's qualifications and perhaps allow for voir dire. But the defendants did not object-even after the court identified Johnson as the governing precedent. Defendants cannot now claim error, let alone plain error, because of their own failure to follow the proper procedure below.

         Nor did the court abuse its discretion in admitting Detective Caffey's testimony as relevant expert opinion evidence under Federal Rule of Evidence 702. Detective Caffey was highly qualified: (1) he had served as an L.A. police officer for thirty-five years; (2) had spent most of his career working gang assignments, including twelve years in a gang surveillance unit; (3) had taken several specialized gang training courses; (4) had taught gang-related topics to law enforcement officials and others for twenty-five years; and (5) had testified about gangs and gang culture five times in federal court and something like five hundred times in state court. The district court sensibly noted that it "[could not] imagine too many people having more credentials."

         Moreover, Detective Caffey's testimony about gang, and particularly Crip, culture was relevant and helpful to the jury in understanding the evidence about the Short North Posse, which the Government alleged to be a local "set" of the national Crips gang. Detective Caffey testified about the Los Angeles origins of the Crips and the proliferation of "Crip sets," or independent, neighborhood-specific offshoots, which though independent would often share a certain culture. He also reviewed and opined on photographs of graffiti found in the Short North area, which he identified as incorporating common Crips gang signs. At the same time, Detective Caffey made clear that he was not familiar with any gang sets in Columbus and was testifying "just generally [about] what you see nationally." In other words, Detective Caffey equipped the jury with an understanding of general Crips culture to help it determine whether the Short North Posse was a criminal enterprise.

         As we said in Johnson,

[c]ourts generally have permitted police officers to testify as experts regarding drug trafficking as long as the testimony is relevant and reliable. . . . There are innumerable trades and practices that employ their unique devices, feints, and codes that may mean nothing to the untrained observer but may speak volumes to a maven qualified by experience or training.

Id. at 698. Testimony "regarding the inner-workings of organized crime" fits squarely within this category and thus is a "proper subject of expert opinion." See United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000).

         Notwithstanding Detective Caffey's general qualifications, defendants argue that his testimony was irrelevant and unreliable because he lacked specific knowledge about Columbus gangs. True enough, "a gang expert's testimony . . . is reliable only insofar as it is based on significant experience with the gang about which the expert is testifying." See United States v. Rios, 830 F.3d 403, 414 (6th Cir. 2016) (emphasis omitted). Thus, Detective Caffey would not have been a reliable expert on the Short North Posse itself. But he did not purport to be. Detective Caffey opined about the national Crips gang, on which he was qualified, and the Government used other testimony to show that the Short North Posse fit the description of a Crip set. This exact approach-eliciting expert testimony on a national gang and separately ...


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