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United States v. Darden

United States District Court, M.D. Tennessee, Nashville Division

August 21, 2019




         After a trial that began with jury selection on March 1, 2019, and ended on April 29, 2019, with the return of the verdicts following 6½ days of deliberation, the jury found Marcus Darden, Maurice Burks, Derrick Kilgore, Elance Lucas, and DeCarlos Titington guilty on the majority of counts contained in the Third Superseding Indictment (hereinafter “the Indictment”). (Doc. No. 831). The Indictment alleged crimes committed by Defendants[1] while members of the Gangster Disciples that - by virtue of the guilty verdicts on Count One - the jury found to be a criminal organization for purposes of the Racketeer Influence Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(a).

         Now before the Court are post-verdict Motions for Judgment of Acquittals filed by all Defendants. (Doc. Nos. 1387, 1388, 1392, 1404 & 1406). In addition, Lucas (Doc. No. 1406) and Burks (Doc. No. 1404) alternatively request a new trial. For the reasons that follow, the motions filed by Darden, Kilgore, Lucas, and Titington will be denied. The motion filed by Burks will be granted in part and denied in part.

         Prior to delving into the merits of the pending motions, three comments regarding the structure of this opinion are in order. First, the Gangster Disciples have a lexicon of their own, and acronyms abound. Hence the need for numerous explanatory footnotes. Second, during the course of this case the Court has entered many substantive decisions, including three lengthy Memorandum Opinions and Omnibus Orders. Therefore, to avoid unduly lengthening what is necessarily a detailed opinion, the Court will not rehash that which has already been said, but will instead incorporate prior decisions by reference and expand upon them only where necessary to address the evidence introduced at trial. Third, a final transcript has not been ordered or prepared. Accordingly, the Court relies on its recollection of the evidence to the extent that recollection is supported by its own copious notes, the more than 1, 200 exhibits that were admitted at trial, and the realtime transcripts that were prepared daily.

         I. Motions for Judgment of Acquittal by Darden, Kilgore, and Titington

         Each of these three Defendants has filed a pro forma motion for judgment of acquittal. Darden “respectfully moves this Honorable Court to enter judgments of acquittal regarding Counts 1, 2, 15, 21 and 23 as they pertain to Defendant Darden, ” and simply argues that “the evidence presented by the government in this case is insufficient to sustain the convictions in the above Counts.” (Doc. No. 1392 at 1). Likewise, Kilgore “respectfully moves this Honorable Court to enter judgments of acquittal regarding Counts 1, 2, 16, 17, 24-33 and Counts 43-45 as they pertain to Defendant Kilgore, ” and argues he “would state and show that the evidence presented by the government in this case is insufficient to sustain the convictions [on those Counts].” (Doc. No. 1387 at 1). Finally, Titington “respectfully moves this Honorable Court to enter judgments of acquittal regarding Counts One, Two, Thirty-Four, Forty, Forty-One and Forty-Two, as the evidence presented by the government as to these six counts is insufficient for any rational trier of fact to have found each element of the offenses charged therein beyond a reasonable doubt.” (Doc. No. 1388 at 1).

         “In this circuit, it is well-settled that ‘[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.'” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). This applies to both civil and criminal cases, including motions for judgment of acquittal. See United States v. Kaufman, 92 Fed.Appx. 253, 256 (6th Cir. 2004) (affirming denial of motion for judgment of acquittal and noting that “[t]his court repeatedly holds” underdeveloped argument are waived); United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (applying the rule set forth in McPherson to a sufficiency of the evidence challenge).

         In the absence of any effort to present arguments based upon the evidence presented to the jury at trial, the Motion for Judgment of Acquittal filed by Darden (Doc. No. 1392), Kilgore (1387), and Titington (Doc. No. 1388) will be denied.

         II. Renewed Motion for Judgment of Acquittal and Motions

         Both Lucas and Burks raise a number of substantive challenges in seeking a judgment of acquittal or a new trial. To place those arguments in perspective, it is necessary to first delineate the standards of review.

         A. Motions for Judgment of Acquittal - Rule 29

         Motions for judgment of acquittal after the close of the government's case, after the close of the evidence, and after the return of a verdict are all governed by Rule 29 of the Federal Rules of Criminal Procedure. In determining whether such a motion should be granted, “[t]he relevant inquiry is whether, ‘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.'” United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

         “Under the Jackson v. Virginia standard, a reviewing court does ‘not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.'” Id. (citation omitted). “‘Substantial and competent circumstantial evidence by itself may support a verdict and need not remove every reasonable hypothesis except that of guilt.'” Id. (quoting United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004)). Given this, a defendant moving for a judgment of acquittal under Rule 29 bears a “very heavy burden.” United States v. Ostrander, 411 F.3d 684, 691 (6th Cir. 2005) (citing United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002); United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000)).

         B. Motions for New Trial - Rule 33

         “A motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure may be premised upon the argument that the jury's verdict was against the manifest weight of the evidence.” United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007). “Generally, such motions are granted only . . . ‘where the evidence preponderates heavily against the verdict.'” Id. at 592-93.

         “In deciding Rule 33 motions based on the manifest weight of the evidence, . . . a district judge ‘may sit as a thirteenth juror' and consider the evidence to ensure that there is no miscarriage of justice.'” United States v. Monoz, 605 F.3d 359, 373 n.9 (6th Cir. 2010) (citation omitted). In this regard, the trial judge may assess the credibility of witnesses and the weight of the evidence. United States v. Reeves, 636 Fed.Appx. 350, 353 (6th Cir. 2016) United States v. Lutz, 154 F.3d 581, 589 (6th Cir. 1998). Still, and while “[t]he decision of whether to grant a new trial is committed to the ‘sound discretion of the trial judge, . . . this discretion should be exercised ‘only in extraordinary circumstance[s].'” United States v. Canal Barge Co., 631 F.3d 347, 357 (6th Cir. 2011) (citation omitted).

         III. Lucas's Motion for Judgment of Acquittal or for a New Trial

         With two limited exceptions, Lucas's combined motion/brief for acquittal or a new trial does not specifically identify which argument is directed at which motion. Consequently, the Court will discuss the arguments in the order presented.

         A. Fatal Variances

         Lucas argues there was a fatal variance in the conspiracy counts. Count One of the Indictment charged a RICO conspiracy that began in or around 2005 and continued until the return of that Indictment on November 7, 2018. Count Two charged a drug distribution conspiracy during the same time frame.

         A fatal variance “‘occurs when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.'” United States v. Kuehne, 547 F.3d 667, 683 (6th Cir. 2008) (quoting United States v. Prince, 214 F.3d 740, 757 (6th Cir. 2000)).[2] To establish a fatal variance, defendant must “prove that (1) a variance occurred and (2) that the variance affected a substantial right of the defendant.” Id.

         Reviewing a claim of fatal variance, therefore, is a two-fold inquiry: “was there a variance, and if so, was it prejudicial[?]” United States v. Mize, 814 F.3d 401, 410 (6th Cir. 2016) (citing Kuehne, 547 F.3d at 683). As to the former, a court “look[s] to whether the evidence can ‘reasonably be construed only as supporting a finding of multiple conspiracies' rather than the single conspiracy alleged in the indictment.'” Id. (quoting United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982)). As to the latter, a court considers whether defendant has “show[n] that the variance prejudiced either his ability to defend himself or the overall fairness of his trial.” Id. (citing United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998). “Prejudice exists ‘where the defendant is unable to present his case and is taken by surprise by the evidence offered at trial'; ‘where the defendant is convicted for substantive offenses committed by another'; or ‘where spillover [occurs] because of a large number of improperly joined defendants.'” Id. (quoting United States v. Swafford, 512 F.3d 833, 842-43 (6th Cir. 2008)).

         1. Variance as to Count One

         Lucas argues that, in the RICO conspiracy count, the Government “alleged the Gangster Disciples was a singular violent national criminal gang that employed a structured, hierarchical organization organized nationally, by state and by region, ” and “maintained that the Middle Tennessee region was known as the ‘615 region' and this region was subdivided into various cities, towns, or other areas within a specific ‘region' called ‘lands' and ‘decks.'”[3] (Doc. No. 1406 at 1-2). This was different from the evidence at trial, he submits, because the proof “revealed separate periods in which various decks were not considered part of the national gang much less the ‘615' region.” (Id. at 2). As support, Lucas points to (1) Danyon Dowlen's testimony that, in 2010, the Clarksville deck did not have meetings or collect dues; (2) Trey Galbreath's testimony that “the Clarksville deck did not affiliate with the other decks in the area while he was ‘in rotation'”[4] nor did he “take orders from any national organization”; and (3) Johnny Austin's testimony[5] that the Murfreesboro deck “was on hold in 2014, ” and that each deck had different rules. (Id.). From Lucas's perspective, this evidence shows “there was not one overall conspiracy but rather several independent groups calling themselves Gangster Disciples doing their own thing.” (Id.).

         Lucas's arguments fail for any of a number of reasons. To begin with, much as he argued at trial, Lucas incorrectly asserts that the Government was required to prove that the Gangster Disciples was a national organization of which he was a member. To be sure, the Indictment alleges that the Gangster Disciples is organized “nationally, ” that since its inception in the 1970s it “recruited members throughout the United States, ” and that by the mid-1980's the group had spread throughout the midwestern and eastern areas of the United States, ” with members “active in numerous states throughout the United States as of the date of the Indictment.” (Doc. No. 831, Indictment ¶¶ 2 a., d.). However, as it pertains to Lucas and the other Defendants, the Indictment also alleged that the Gangster Disciples was organized “by state” and “by region”; a “region was usually identified by area code”; Middle Tennessee was identified as the 615 region with “lands” and “decks”; and, most pertinently, that the racketeering activity occurred in “the Middle District of Tennessee and elsewhere.” (Id. ¶¶ 1, 2d.).

         “[P]roof of every allegation is not required in order to convict[.]” United States v. Stull, 743 F.2d 439, 442 n.2 (6th Cir. 1984). Rather, the “[e]lements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt.” United States v. O'Brien, 560 U.S. 218, 224 (2010) (citing Hamling v. United States, 418 U.S. 87, 117 (1974); see also, United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010) (holding that the government must prove facts alleged in the indictment that meet the essential elements of the charged crime, and any additional facts alleged that go beyond the essential elements are treated as mere surplusage); United States v. Eliassi, 46 F.3d 1127 (4th Cir. 1995) (“Clearly the government need not prove every factual allegation in an indictment as long as it proves beyond a reasonable doubt each element of the offense charged”).[6] Moreover, a fatal variance occurs only when “the evidence at trial proves facts materially different from those alleged in the indictment.” United States v. Rios, 830 F.3d 403, 427 (6th Cir. 2016).

         For purpose of his Motion for Judgment of Acquittal, any reasonable jury could have found Lucas guilty of knowingly joining a criminal organization known as the Gangster Disciples and agreeing to participate in its pattern of racketeering, and, for purposes of his Motion for a New Trial, it would not be a manifest injustice for the jury to so conclude. This is true whether the Gangster Disciples is viewed as a national organization, or as a regional organization because the Government proved the existence of both, and the evidence at trial fully supported the allegations contained in Count One.

         First, on a national scale, the proof presented at trial established that the Gangster Disciples was formed in the late 1960s after the merger of Larry Hoover's and David Barksdale's Chicago street gangs. Hoover continues at the helm as Chairman, continues to communicate with gang members, and receives payments from some gang members, notwithstanding his incarceration at ADX-Florence, Colorado, the federal supermax prison. The evidence also showed that the Gangster Disciples are governed by a national board of directors, [7] portions of dues collected at the local level are supposed to be sent to officials and from there to the national organization (after all, according to Dowlen, its “Larry's money” and subject to audit), and annual meetings/Larry Hoover birthday celebrations are held at various locations around the country.[8] The evidence further indicated that members commonly wear blue and black to show their membership, and use recognized and well-understood signs, such as a six-pointed star ($) that resembles the Star of David, [9] a three-tined “pitchfork” (bearing a resemblance to a trident or the Greek letter psi (\|/), but with pointed tips when hand-drawn), and the number “74” representing the seventh (“G”) and fourth (“D”) letters of the alphabet. Oftentimes, members have these signs and others tattooed on their bodies as a source of pride, and to confirm their allegiance to the Gangster Disciples.

         The evidence also showed, from a big picture perspective, that male members were referred to collectively as “Brothers of the Struggle” or “BOSS, ”[10] and female members were referred to as “Sisters of the Struggle.” It further showed members (1) were often recruited from jails, prisons, [11]or local neighborhoods; (2) used nicknames proceeded by “Mac” (an acronym for either “Making a Change” or “Manipulating all Change”); (3) “flashed” or “threw up” certain gang signs (such as closing one's ring and pinky fingers to the palm while displaying the thumb, middle, and index finger as an approximation of a pitchfork); and (4) shared literature that set forth the gang's beliefs, such as (a) the “17 Laws” that required silence and secrecy, exercise, and mutual assistance and aid, but prohibited stealing, rape, and the use of drugs, among other things; (b) a revised “17 Laws” for incarcerated members; (c) the “I Pledge”; and (d) the ”We Pledge.”

         Much of the foregoing translated down to the local level and, in particular Clarksville, which was the locus of the charges in this case. The evidence showed, for example, that the southern district of the Gangster Disciples includes the states of Tennessee, Alabama, Georgia, North Carolina, South Carolina, Florida, and Kentucky, and that Tennessee was divided into three regions West (Memphis), East (Chattanooga) and Middle (Clarksville). For many years, Byron Purdy was the Gangster Disciples Governor of Tennessee and the decks in the state reported to him.

         Even more locally, the 615 region had decks in various cities, including, but not limited to, Clarksville, Nashville, Gallatin, Murfreesboro, and Lebanon.[12] For much of the time covered by the Indictment, Darden was the Regent, Head of Security, or Enforcer. In those roles, Darden addressed issues that came up in the Region, including ones arising in Columbia, Springfield, and Nashville. When Darden was Regent, all local members reported to him, and he, in turn, reported to the state governor. As Regent, Darden was also responsible for handing out positions of authority. Positions of authority included such things as Secretary, Treasurer, Chief Enforcer, Chief of Security, and Coordinator. Among others holding positions of authority at various times in the Clarksville deck were Burks, who served at times as an Enforcer and Regent; Whitlock, who served as a Secretary and Area Coordinator; Jenkins, who served as the Literature Coordinator; Titington, who served as a Block Coordinator and/or Enforcer at Lincoln Homes;[13] and Kilgore, who was on the security team.

         “Mac” was the common preface to member's nicknames, with Darden known as “Mac T” or “Mac Tuff”; Burks as “Mac Reese” or Mac Reesy”; Kilgore as “Mac Smut”; and Lucas as “Mac Luke.” Further, numerous pictures were introduced showing Defendants wearing blue and black, flashing gang signs, or standing with arms and legs crossed in such a manner so as to resemble the 6-pointed star. Photographs of tattoos showing Defendants' loyalty to the Gangster Disciples were presented to the jury as well. These included tattoos of a six-pointed star (Darden, Lucas and Hardison); and references to being a gangster (Burks - “Gangsta Whenever”; Whitlock - “Only God Forgives, Gangsters Don't”). And, as if to underscore 615's affiliation with the national Gangster Disciples, Whitlock has a tattoo on the top of his chest stating “One of Larrys [sic] Guys, ” and a picture of Larry Hoover on his leg, while Lucas was photographed wearing a “Free Larry Hoover” t-shirt.

         Paper records seized during searches were also introduced that showed the attendance of most of the Defendants at monthly meetings (also known as “deuces”[14]) and the payment of dues, along with phone lists identifying members by their “Mac” monikers. Those searches also revealed a connection between Clarksville and the national organization with the discovery of copies of the “17 Laws”; the “We Pledge” wherein members pledge loyalty to the “Chairman” and to adhere to the teaching and policies of the “Chairman and Executive Staff” (Doc. No. 527); and the “I Pledge, ” wherein members “agree to serve this glorious organization in its every cause; and aid and assist my fellow brothers of the struggle in all righteous endeavors” (Doc. No. 295).

         The jury also saw Facebook and Instagram postings that were maintained by Clarksville Gangster Disciple members, which tended to show affiliation with each other and support for the Gangster Disciples generally. Further, there was testimonial evidence that, in keeping with the “17 laws, ” Clarksville members were required to respond to another member who needed assistance.[15]Failure to abide by those laws could result in “violations, ” a “Gangster Disciples arrest, ”[16] and subsequent punishment.

         Additionally, there was testimonial evidence from which the jury could conclude that stature in the Gangster Disciples could be increased by assaulting, shooting, or killing rival gang members. This was not mere fanciful thinking, as the jury was presented with plenty of evidence of violent acts committed by members. Just by way of examples, the jury heard testimony - and sometimes saw pictures of the carnage - about Gangster Disciples named in the Indictment being responsible for:

(1) a drive-by shooting of several individuals at a gathering in front of the house at 384 Treeland Drive because it was thought some members of the Vice Lords (a rival gang) might be in attendance. The shooting resulted in the airlifting of at least one victim to the hospital and a lengthy police pursuit;
(2) shooting Crystal Allen in the rear-end on September 13, 2009 because she had the misfortune of being on Oak Street, which is in Vice Lord territory;
(3) shooting William Miller a/k/a Lil Will, a member of the Vice Lords, because he disrespected the Gangster Disciples by throwing down the pitchforks;
(4) the murder of Jesse Hairston in September of 2007, in retaliation for the murder of Hockett a/k/a Mac Chicken;
(5) the murder of Malcolm Wright on November 3, 2012, at C-Ray's in retaliation for Hardison having been assaulted by a member of the Vice Lords; and
(6) the murder of Derrick Sherden, who allegedly owed Hardison a small drug debt, and Amanda Weyland, an innocent bystander.

         The Court could go on ad nauseam, but the foregoing is more than enough to show a reasonable jury could conclude that Defendants were not, as Burks' counsel argued during opening, simply a “loose bunch of knuckleheads” from the small town of Guthrie, Kentucky who hung out together because they were friends, [17] or just some freelancing guys co-opting the Gangster Disciples' name while doing their “own thing, ” as Lucas now argues.

         It is true that some witnesses (most notably Wallace “Gator” Williams) testified the Gangster Disciples' message is now positive. Such testimony suggested that, sometime in the mid-1990s, the Gangster Disciples changed from the “360 concept” (where one was “jumped in” or beaten in order to join the gang[18]) to the “720 concept” or “Growth and Development” model in the mid-1990's (where members were “blessed” into the gang after learning its history and being able to recite its literature). Nevertheless, a reasonable jury, based upon the strength of the evidence, could have easily concluded that, for many gang members and the organization as a whole, this was merely an intentional change in semantics meant to mask the Gangster Disciples' continuing criminal activity. The jury could also easily conclude that the virtuous aspect of the 17 laws were honored more in the breach than in their observance.

         It is also true, as Lucas puts it, that there was no evidence showing that he “committ[ed] a single act of violence, ” and the evidence as to his participation in the Gangster Disciples was less than that presented against some of the other Defendants. (Doc. No. 1406 at 3). But “‘[w]hether he was a big fish or a little fish is not of great consequence in a conspiracy unless the person didn't fully participate.'” United States v. Caper, 571 Fed.Appx. 456, 461 (6th Cir. 2014) (citation omitted); see also United States v. Mezzanatto, 513 U.S. 196, 206 (1995) (recognizing that there are “big fish” and “small fish” in conspiracies); United States v. Menting, 166 F.3d 923, 929 (7th Cir. 1999) (stating that “the fact that [defendant] played a lesser role than other participants does not relieve him from liability: a conspiracy may include both big fish and small fry”); Pringle v. Garcia, No. 2:09-CV-022-PPS-PRC, 2014 WL 1651976, at *5-6 (N.D. Ind. Apr. 23, 2014) (noting that a RICO “conspiracy claim applies to little fish as well as big fish”)

         Carrying the big fish/small fish analogy a step further, it has be observed that “[w]hen the Government throws out its big conspiracy net to catch the big fish in the criminal sea, . . . an occasional minnow may wriggle free.” United States v. Tramunti, 513 F.2d 1087, 1112 (2d Cir. 1975). Here, however, it was entirely reasonable for the jury to conclude that Lucas was not the minnow he now claims to be based upon the following evidence:

(1) Lucas was a long-standing member of the Gangster Disciples;
(2) Lucas committed racketeering acts furthering the RICO conspiracy by selling more than 26 grams of crack cocaine. Those sales occurred on March 10, 2015, March 27, 2015, and May 13, 2015;
(3) Lucas, along with Darden and Burks, provided Dowlen with funds while Dowlen was on the run in Alabama;
(4) Lucas maintained a stash of guns at the “cave”[19] in Guthrie that included assault rifles and handguns; and
(5) Lucas provided Gangster Disciples members with several assault rifles that were to be used to shoot Bloods gang members at the Plush nightclub in Clarksville in the fall of 2012, but the attack was aborted.

         In short, the evidence was more than sufficient for the jury to find that Lucas was a member of the Gangster Disciples, and that the enterprise engaged in racketeering activities of which Lucas was a willing participant. Bringing the fish analogy full circle, Lucas was a “keeper.” Accordingly, he is not entitled to either a judgment of acquittal or new trial based upon an alleged variance in Count One.

         2. Variance as to Count Two

         Count Two of the Indictment alleges that, from 2005 until November 2018, Defendants conspired to distribute and possess with intent to distribute five kilograms or more of cocaine hydrochloride, 280 grams or more of cocaine base, oxycodone, methadone, hydrocodone, and marijuana. Lucas briefly argues there was a fatal variance between those allegations and the evidence adduced at trial because “the government charged a single drug conspiracy, ” but “introduced evidence of codefendant Burks' drug conspiracy with another individual who was a member of a rival gang.” (Doc. No. 1406 at 2).

         “When the government prosecutes more than one conspiracy under a single indictment and at a single trial, the resultant variance is error.” United States v. Warman, 578 F.3d 320, 341 (6th Cir. 2009). However, “[t]his error requires reversal only if it prejudices the defendant by transferring ‘guilt to an individual defendant involved in one conspiracy from evidence incriminating defendants in a conspiracy in which the particular defendant was not involved.'” (Id.) (quoting United States v. Levine, 569 F.2d 1175, 1177 (1st Cir. 1978)). Moreover, “‘[w]hether single or multiple conspiracies have been established is usually a question of fact to be resolved by the jury, '” and “typically any danger of prejudice can be cured with a cautionary instruction to the jury that if it finds multiple conspiracies, it cannot use evidence relating to one conspiracy in determining another conspiracy.” Id. at 342 (quoting United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003)). Finally, “‘[w]here the evidence demonstrates only multiple conspiracies, a defendant is prejudiced if the error of trying multiple conspiracies under a single indictment substantially influenced the outcome of the trial.” United States v. Swafford, 512 F.3d 833, 842 (6th Cir. 2008) (emphasis in original) (quoting United States v. Caver, 470 F.3d 220, 235-37 (6th Cir. 2006)).

         The Court does not recall any evidence definitively establishing that Macksey McKnight was a member of a rival gang, or that a conspiracy between McKnight and Burks was alleged in the Western District of Kentucky case.[20] Regardless, “the same set of facts [can] support both a finding of a single conspiracy and a finding of multiple conspiracies.” United States v. Quinones-Cedeno, 51 Fed.Appx. 558, 565 (6th Cir. 2002) (citing United States v. Davenport, 808 F.2d 1212, 1217 (6th Cir. 1987)); see also, United States v. Tedder, 801 F.2d 1437, 1447 (4th Cir. 1986) (observing that “innumerable inferences can be drawn from the same set of facts” and “[t]hus, the government's use of the same evidence to prove each of the special elements required for the three different conspiracies is unexceptionable”); United States v. McKenzie, No. CRIM. 11-009-JJB, 2011 WL 5320690, at *4 (M.D. La. Nov. 2, 2011) (“[T]here is a crucial difference between merely using the same evidence to show different conspiracies and that evidence actually showing only a single conspiracy. Just as a single conversation might touch on multiple topics, so too might a single piece of evidence show multiple agreements and, hence, multiple conspiracies.”).

         Contrary to Lucas's argument, the evidence in this case did not show only multiple conspiracies, nor can it be said that Lucas was convicted of conspiracy by virtue of Burks being named in the Kentucky case. As already noted, the jury was presented with more than sufficient evidence of Lucas' own involvement in the Gangster Disciples, and his own drug dealing as a member of that organization. Furthermore, in keeping with Sixth Circuit Pattern Instruction 3.08, the jury was instructed:

To convict any one of the defendants of the drug conspiracy charge, the government must convince you beyond a reasonable doubt that a defendant was a member of the drug conspiracy charged in the indictment. . . . Some of the defendants have argued that there were really multiple conspiracies. Proof that a defendant was a member of some other conspiracy is not enough to convict. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government also proved that he was a member of either conspiracy charged in the indictment.

(Doc. No. 1397 at 58-59).

         Accordingly, Lucas is not entitled to acquittal or a new trial based upon the difference between that which was alleged in Count Two of the Indictment and the proof that was introduced at trial.

         B. Sufficiency of the Evidence

         Under the heading “Sufficiency of Evidence, ” Lucas argues that “no rational fact finder could conclude that the racketeering activity of the RICO enterprise was narcotics trafficking.” (Doc. No. 1406 at 3). This is because: (1) “Dowlen stated the gang did not control who you sold to, who you bought from, [or] who to give a discount to”; (2) “Austin testified there was no folk price”;[21] (3) Carlos “Jordan testified no drug profits were split with the gang”; (4) Tray “Galbreath testified you could sell to whoever you wanted to”; and (5) Dezorick “Ford perhaps said it best, ‘money is green.'” (Id. at 3-4).

         Even if the jury was persuaded by this testimony - hand-selected from 5 of the 83 witnesses who testified during the Government's case in chief - it does not follow that there was a variance because the evidence also showed that there were other benefits to Gangster Disciple members who sold drugs. They were all but assured that they could deal drugs in certain areas without competition or fear, including Lincoln Homes, Greenwood Homes (specifically Maddox Circle and Lennox Court) parts of Main Street, and portions of Guthrie that straddled the Tennessee/Kentucky line. Outside of such neighborhoods, and assuming it was not rival territory (such as Summit Height, which was Vice Lords's turf, or the Birchwood neighborhood, which was a Bloods' stronghold), Gangster Disciples members had little fear of being assaulted or robbed because it was commonly understood that gang members could call on their comrades to come to their aid and exact retribution. Further, members could call on each other for protection when moving or packaging drugs, and they had access to a network of other Gangster Disciple members in other cities when they needed to secure drugs. In short, membership had its privileges, even if that membership did not extend to getting a “folk price.”

         C. New Trial in the Interest of Justice

         Finally, under the heading “Motion for New Trial, ” Lucas selects four incidents that arose during course of the six week trial and claims those entitle him to a new trial. The entirety of his argument is as follows:

Interest of justice requires a new trial for Mr. Lucas. Mr. Lucas twice moved for a mistrial. First, when the jurors reported being scared when leaving the courthouse and wrongly imagining their photographs being taken by gang members. Second, when the government elicited from witness Austin that he was afraid he would be killed because of his testimony. This coupled with the seating arrangement of the defendants and witness Daniels walking off from the witness stand left the jurors with the impression that these defendants were bad, bad, men. This was most unfair to Mr. Lucas who did not have a single piece of evidence brought against him that he committed a violent act.

(Doc. No. at 1406 at 4).

         Just as with the other Defendants' perfunctory Rule 29 motions, these arguments are subject to summary denial because, as already noted, the Court is not required to put meat on the bones of an argument. However, because Burks also raises these same matters in his motion, the Court considers them now.

         Over the course of the trial, the jury sent several notes to the Court. Approximately two weeks in, the Court received a note dated March 19, 2019, stating that several jurors had expressed concerns that people were walking in and out of the courtroom; cell phones were being used by an audience member to take photographs of jurors; a couple of women had walked onto the back loading dock where jurors entered and exited the building; and jurors may have been followed to their designated parking area that was a couple of blocks from the courthouse.

         The Court read the note in its entirety in open court, and solicited comments from the lawyers. The consensus, with which the Court agreed, was that a conservative approach should be taken so as not to highlight any security concerns. Accordingly, before the jury was summoned back into the courtroom, the Court told the public sitting in the gallery that, while this was the “people's court” and they certainly had a right to be there, entrances and exits from the courtroom were very distracting to the jury, the lawyers, the Defendants, and the Court. Accordingly, the audience members were asked to limit their ingress and egress, and to sit in the back pews if they thought they would need to leave before the next break. Thereafter, the jury was brought into the courtroom and told that (1) the court had received and carefully read their note; (2) there were no cell phones in the courtroom, as they were prohibited by local rule; (3) the public had the right to observe the proceedings, but had been asked to limit the amount of times they came in and out of the courtroom; and (4) the court staff had been made aware of the contents of the note and would serve as the Court's eyes and ears going forward.

         Whether to grant a mistrial is a matter of sound discretion for the court, United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019), and should be granted without all defendant's request only when “manifest necessity exists, ” United States v. Williamson, 656 Fed.Appx. 175, 181 (6th Cir. 2016), so as balance a defendant's “valued right to have his trial completed by a particular tribunal, ” with “the public's interest in fair trials designed to end in just judgements, ” Arizona v. Washington, 434 U.S. 497, 503, 516 (1978). Manifest necessity “is not to be interpreted literally or applied mechanically; what is required is a ‘high degree' of necessity.” Ross v. Petro, 515 F.3d 653, 660-61 (6th Cir. 2008) (quoting Washington, 434 U.S. at 406); see also, Harpster v. Ohio, 128 F.3d 322, 328 (6th Cir. 1997) (“The manifest necessity inquiry is a flexible one, with reviewing courts analyzing the trial court's exercise of discretion in light of the particular facts and circumstances of each individual case.”).

         The situation surrounding the jury note did not suggest any need for a mistrial, let alone manifest necessity. No. party voiced any objection to the Court's instructions, [22] and the Court believes this was the best way to handle the matter given the circumstances. At no time did the jury express fear of any of the Defendants on trial; to the contrary they specifically stated in their note that they had not arrived at a decision and were trying to conscientiously perform their duties as jurors. Further, audience members limited their entrance and egress as requested, and the jury expressed no further concerns of a similar kind during the remaining four weeks of trial.

         Nor did the incident involving Austin warrant a mistrial then, [23] or a new trial now. Called as a Government witness, Austin was visibly nervous when he took the stand. Early into his testimony, the Government remarked that Austin did not appear to “want to be here, ” to which he responded, “just nervous.” Several lines of questioning followed during which Austin continued to exhibit signs that he was uncomfortable. This prompted the following colloquy:

Q. All right. And we'll talk about Vossie in just a minute, Mr. Austin. I want to ask you about a series of meetings that happened over the course of 2014 in Nashville and around the 615 region. Are you all right, Mr. Austin?
A. Nervous.
Q. Why are you nervous?
A. Because I'm testifying. I'm scared -- I'm ...

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