Argued: March 13, 2019
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:14-cr-00127-Algenon L.
Marbley, District Judge.
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.
S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for
Appellant Robinson. Mary Beth Young, UNITED STATES
ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.
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.
R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for
Appellant Ussury. Steven S. Nolder, SCOTT & NOLDER CO.
LPA, Columbus, Ohio, for Appellant Robinson.
Beth Young, Kimberly Robinson, UNITED STATES ATTORNEY'S
OFFICE, Columbus, Ohio, for Appellee.
Before: MERRITT, CLAY, and ROGERS, Circuit Judges
ROGERS, CIRCUIT JUDGE
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).
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.
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.
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.
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
have raised a number of issues on appeal. All but two lack
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.
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).
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
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.
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.
Ledbetter's Suppression Motion
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.
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.
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"
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
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).
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
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.
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.
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."
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.
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).
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 ...