U.S. v. Smith
| Decision Date | 06 July 2005 |
| Docket Number | No. 03-4240.,03-4240. |
| Citation | 413 F.3d 1253 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tyrese Sharod SMITH, also known as Seagram, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Tyrese Sharod Smith, Florence, CO, filed a pro se brief.
Catherine Conklin (Deirdre A. Gorman, with her on the briefs), Ogden, UT, appearing for Appellant.
Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, and Robert A. Lund, Assistant United States Attorney, with her on the briefs), Office of the United States Attorney for the District of Utah, Salt Lake City, UT, appearing for Appellee.
Before TACHA, Chief Circuit Judge, McKAY, and EBEL, Circuit Judges.
A jury found Defendant-Appellant Tyrese S. Smith guilty of conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d), murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a), and using a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). All three convictions stem from Mr. Smith's leadership of a Salt Lake City street gang known as the King Mafia Disciples ("KMD"). On appeal, Mr. Smith, through his trial attorneys, contests the first two convictions based on the sufficiency of the evidence and the propriety of the jury instructions. Mr. Smith also raises four additional issues in a pro se supplemental brief. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
The facts involved in this case are complicated and lengthy. Given that Mr Smith contests the sufficiency of the evidence against him, we provide much of the relevant details in the course of our legal analysis. To begin with, however, we provide a brief overview of this case.
Mr. Smith, along with five others, formed KMD while in juvenile detention at the Decker Lake Youth Detention Center in the early 1990s. The gang was modeled on the Chicago "Gangster Disciples," although the two gangs were never affiliated. Mr. Smith was the undisputed leader of KMD and often went by the self-appointed title "King Seagram" to evidence his leadership role. KMD had a formal process for initiating new members into the gang, which included sponsorship by a current member, a probationary period, completion of a "mission," and a physical initiation. KMD also had a formal hierarchy of members who were assigned ranks—Reverend, Minister, Priest, Knight, Bishop, and Rook—to identify their standing in the gang. KMD was governed by rules established by Mr. Smith, known as the KMD "bible," including the requirement to attend meetings, to maintain a code of silence, and to provide financially for other KMD members. Members who violated the rules were subject to different levels of penalties depending on the gravity of the offense. The record also indicates that KMD held regular meetings at which gang business was discussed and directives were issued by Mr. Smith, or, during times when he was in prison, the highest ranking member who was present.
The overall goal of KMD was to be the most powerful gang in Salt Lake City and to protect its members. These goals were often accomplished through violent retaliatory attacks on rival gangs, which tended to increase the reputation and notoriety of KMD, and, in turn, decreased the likelihood that KMD members would be similarly attacked. Indeed, KMD's philosophy concerning retaliation was that KMD members should respond with twice the violence to rival gang members' attacks against them.
Another purpose of KMD was to provide financial assistance to its members and their families. To do this, KMD distributed marijuana on the streets and also controlled the marijuana trade in the Utah State Prison. Home invasion robberies were another way KMD members made money. The gang generally targeted drug dealers' homes because a drug dealer is unlikely to call the police and because they could steal drugs as well as cash. The homes of drug dealers also frequently contained guns, which KMD would also steal and use to commit other crimes. Through drug trafficking and robberies, KMD members would contribute money to those members needing help—including the wives and children of incarcerated KMD members.
Members of KMD were constantly moving in and out of the Utah penological system. Mr. Smith, in fact, was incarcerated in 1994 for his participation in a drive-by shooting. He was paroled in October 1995, but he violated his parole two months later and was returned to state prison. He was then sentenced for the murder of Joey Miera, which was committed by KMD members upon an order that he issued while incarcerated on the drive-by shooting charge. Despite these periods of incarceration, Mr. Smith retained control of KMD, issuing rules and orders— often on a daily basis—from his prison cell.
In 2002, while Mr. Smith was serving time for the murder of Mr. Miera, a federal grand jury returned a three-count indictment charging Mr. Smith with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d) ("RICO conspiracy"), murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a) and using a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). Numerous other KMD members were named as coconspirators in the § 1962(d) charge, but, because the others pleaded guilty or testified against him, Mr. Smith was tried individually. The Government introduced evidence of numerous so-called "predicate acts" to support this RICO conspiracy, including: three separate instances of conspiracies to commit murders and attempted murders of rival gang members, conspiracy to commit arson and attempted arson of a rival gang member's home, conspiracy to commit murder and the murder of a rival gang member, conspiracy to commit robbery, and conspiracy to commit aggravated robbery.
Prior to trial, Mr. Smith twice asked the District Court to discharge his court-appointed attorneys and allow him to represent himself. The District Court both times denied Mr. Smith's request to proceed pro se but allowed Mr. Smith to submit his own oral and written motions directly to the court. The case then went to trial, and the jury convicted Mr. Smith on all three counts. The District Court sentenced him to two life terms plus ten years' imprisonment.
After the jury found Mr. Smith guilty on all three counts, he, through counsel, timely appealed his convictions under 18 U.S.C. § 1962(d) and 18 U.S.C. § 1959(a). With respect to the first conviction, he argues both that the evidence was insufficient to convict him and that the jury was improperly instructed on the elements of the crime. As to the second conviction, he argues that the Government's evidence was insufficient to support a conviction. After Mr. Smith's attorneys filed his opening appellate brief, Mr. Smith moved this Court to discharge them and replace them with new counsel. We denied this motion but allowed Mr. Smith to file a pro se supplemental brief raising any additional issue he desired. In that brief, Mr. Smith raises four arguments that we address in the last section of this opinion.
Mr. Smith first argues that the Government's evidence at trial was insufficient to support a conviction under 18 U.S.C. § 1962(d). In evaluating the sufficiency of the evidence, we review the record de novo. United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir.2004). There is sufficient evidence to uphold a conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id. In making this determination, we review the direct and circumstantial evidence, along with all reasonable inferences therefrom, in the light most favorable to the Government. Id.
Mr. Smith was convicted of violating 18 U.S.C. § 1962(d), which makes it "unlawful for any person to conspire to violate" 18 U.S.C. § 1962(c). Because this conspiracy provision lacks an overt act requirement, a defendant can be convicted under § 1962(d) upon proof that the defendant knew about or agreed to facilitate the commission of acts sufficient to establish a § 1962(c) violation. See Salinas v. United States, 522 U.S. 52, 63-66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997).
In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the Supreme Court held that "[a] violation of § 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Id. at 496, 105 S.Ct. 3275 (internal note omitted).1 To clarify what conduct is necessary to prove a violation of § 1962(c), some courts have expanded this test to incorporate additional elements of the statute. See, e.g., Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir.1983). We adopt this approach to establishing a violation of § 1962(c), and because a defendant violates § 1962(d) by conspiring to violate § 1962(c), we hold that in order to convict a defendant for violating § 1962(d), the Government must prove beyond a reasonable doubt that the defendant: (1) by knowing about and agreeing to facilitate the commission of two or more acts (2) constituting a pattern (3) of racketeering activity (4) participates in (5) an enterprise (6) the activities of which affect interstate or foreign commerce.
With this in mind, we turn to Mr. Smith's arguments on appeal. He contends that the Government failed to present sufficient evidence: (1) of the existence of a RICO enterprise; (2) of a pattern to the racketeering activity; (3) of a nexus between the...
To continue reading
Request your trial
-
United States v. Nissen
...2006), and rejected as untimely a motion filed six days before trial but that indicated an intent to delay, see United States v. Smith, 413 F.3d 1253, 1281 (10th Cir. 2005) (overruled on other grounds by United States v. Hutchinson, 573 F.3d 1011 (2009) ). A defendant must also " ‘clearly a......
-
United States v. Kamahele
...enterprise when they “jointly operated the houses from which various set members sold drugs”); United States v. Smith, 413 F.3d 1253, 1264, 1268 (10th Cir.2005) (concluding that a gang constituted an enterprise for RICO purposes when the group used drug-distribution proceeds to support the ......
-
United States v. Bader
...the issues and the applicable standards.” United States v. Visinaiz, 428 F.3d 1300, 1308 (10th Cir.2005) (quoting United States v. Smith, 413 F.3d 1253, 1273 (10th Cir.2005)) (internal quotation marks omitted). Regarding the second prong, we have recognized that error is plain if it is “cle......
-
Wade v. Gaither
...result, only a de minimis effect on interstate commerce is required to sustain federal jurisdiction. Id., see also United States v. Smith, 413 F.3d 1253, 1274 (10th Cir.2005). Smith cites cases from the First, Second, Sixth and Ninth Circuits confirming that even in light of the Supreme Cou......
-
Racketeer influenced and corrupt organizations.
...is whether the alleged 'enterprise' is distinct from the alleged 'pattern of activity in which it engages'"); United States v. Smith, 413 F.3d 1253, 1267 (10th Cir. 2005) (holding that evidence must be sufficient to establish existence of enterprise separate and apart from the racketeering ......
-
Racketeer influenced and corrupt organizations.
...is whether the alleged 'enterprise' is distinct from the alleged 'pattern of activity in which it engages'"); United States v. Smith, 413 F.3d 1253,1267 (10th Cir. 2005) (holding that evidence must be sufficient to establish existence of enterprise separate and apart from the racketeering a......
-
Racketeer influenced and corrupt organizations.
...75, at 38-39. (109.) Every circuit except the Second and Eleventh Circuits have adopted the majority view. See United States v. Smith, 413 F.3d 1253, 1267 (10th Cir. 2005), cert. denied, United States v. Smith, 2006 WL 37796 (U.S. 2006) (holding that evidence must be sufficient to establish......
-
Racketeer influenced and corrupt organizations.
...is whether the alleged 'enterprise' is distinct from the alleged 'pattern of activity in which it engages'"); United States v. Smith, 413 F.3d 1253, 1267 (10th Cir. 2005) (holding that evidence must be sufficient to establish existence of enterprise separate and apart from the racketeering ......