U.S. v. York

Decision Date27 October 2005
Docket NumberNo. 04-12354.,04-12354.
Citation428 F.3d 1325
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dwight D. YORK, a.k.a. Malakai Z. York, etc., Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Jeffrey M. Brandt, Matthew McGavock Robinson, Robinson & Brandt, P.S.C., Cincinnati, OH, Adrian Lopez Patrick, Law Offices of Adrian L. Patrick, Athens, GA, Benjamin A. Davis, Jr., Davis Law Firm, Atlanta, GA, for Defendant-Appellant.

Richard S. Moultrie, Jr., Macon, GA, Dean S. Daskal, Columbus, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BIRCH, HULL and BOWMAN*, Circuit Judges.

PER CURIAM:

Defendant-Appellant Dwight D. York appeals his convictions and 1,620-month sentence. After review and oral argument, we affirm.

I. BACKGROUND

Dwight D. York ("York") is the leader of the United Nation of Nuwaubian Moors, a religious ministry/Native American tribe that has existed in some form since the 1960s.1 Over the years, the Nuwaubian organization's official philosophy (as well as its name) has changed several times, alternatively finding its basis in Islamic, Hebrew, ancient Egyptian, Yamasee Indian, and various other cultures and religions. The organization was founded in Brooklyn, New York; however, in approximately 1990 the Nuwaubians moved to a farm in Sullivan County, New York. In early 1993, York began to move the Nuwaubians from Sullivan County to a large plot of land in Eatonton, Georgia.

On November 21, 2003, a grand jury in the United States District Court for the Middle District of Georgia (Macon Division) returned a second superseding indictment (the "Indictment"),2 which formed the basis for York's fourteen-day trial in January 2004. The Indictment contains thirteen counts.

Specifically, Count One charges York with a Racketeer Influenced and Corrupt Organizations ("RICO") conspiracy, in violation of 18 U.S.C. § 1962(d). Count Two charges a substantive RICO offense, in violation of 18 U.S.C. § 1962(c). The RICO counts are predicated on specific instances in which York: (1) engaged in the interstate transport of minors with the intent to engage in unlawful sexual activity; (2) engaged in interstate travel for the purpose of engaging in unlawful sexual activity with minors; and (3) unlawfully structured cash transactions in order to avoid federal reporting requirements. Count Three charges York with general criminal conspiracy to engage in the interstate transport of minors with the intent to engage in unlawful sexual activity, as well as with conspiracy to unlawfully structure cash transactions to avoid federal reporting requirements, in violation of 18 U.S.C. § 371.

Counts Four, Five, Six, and Eight charge York with the specific interstate-transport-of-minors-for-sex acts that form the basis for those predicate acts in the RICO and conspiracy counts, in violation of the Mann Act, 18 U.S.C. § 2423(a). Specifically, Count Four charges the interstate transport of a minor, identified as "I.J.," from Sullivan County, New York to Eatonton, Georgia in February 1993. Count Five charges the interstate transport of three minors, identified as "K.H.," "A.N.," and "D.N.," from Sullivan County to Eatonton in April 1993. Count Six charges the interstate transport of a minor, identified as "A.T.," from Kings County, New York to Georgia in April 1993. Count Eight charges the interstate transport of three minors, identified as "A.N.," "K.L.," and "S.W.," from Georgia to Florida in 1996.

Count Seven charges York with a 1996 act of interstate travel from Georgia to Florida for the purpose of engaging in unlawful sexual activity with minors, in violation of the Mann Act, 18 U.S.C. § 2423(b). The minors in Count Seven are the same minors named in Count Eight.

Counts Nine, Ten, and Eleven charge York with the acts of unlawfully structuring cash transactions that form the basis for those predicate acts in the RICO and conspiracy counts of the Indictment. Specifically, Counts Nine, Ten, and Eleven charge York with three acts of unlawfully structuring cash transactions to avoid federal reporting requirements, in violation of 31 U.S.C. § 5313(a) and 31 U.S.C. § 5324(a)(3). Count Nine charges York with unlawfully structuring cash transactions on or about September 29-30, 1999. Count Ten charges York with unlawfully structuring cash transactions on or about October 6-8, 1999. Count Eleven charges York with unlawfully structuring cash transactions on or about April 5-11, 2000. Finally, Counts Twelve and Thirteen are forfeiture counts.

At trial, there was substantial evidence that under York's leadership, the Nuwaubians' lifestyle was highly restricted.3 York had many "wives" who served his business and personal needs. York's followers were expected to abide by his rules or risk punishment or expulsion from the Nuwaubian organization. Men and women did not live together; children beyond toddler age were generally separated from their parents; and children were separated by sex and age and lived in different buildings and rooms accordingly. Children were home-schooled and usually interacted with their biological parents for only specific, short periods of time.

Several witnesses testified that York, both in Sullivan County, New York and in Eatonton, Georgia, as well as in Athens, Georgia, engaged in a regular course of sexual contact with underage children within the Nuwaubian organization, including oral, vaginal, and anal sex. Some of the children were as young as six years old when the initial sexual contact with York occurred. Certain of York's "wives" and older sexual partners (some still underage themselves) helped recruit or encourage younger children to participate in sex acts with York.

Additionally, there was substantial evidence that York owned and operated a number of stores and outlets throughout the country that sold religious and non-religious Nuwaubian items. A "finance office" in Eatonton, Georgia, staffed by various Nuwaubians, was responsible for collecting and handling the profits from York's businesses. In addition to the sex crime evidence at trial, witnesses testified that York instructed the workers in the "finance office" never to deposit $10,000 or more in cash into any of his bank accounts at any given time, in order to evade federal cash transaction reporting requirements.

The jury convicted York on eleven of the thirteen counts in the Indictment, acquitting York on Counts Eight and Twelve. The district court sentenced York to the statutory maximum prison term on each count of conviction, to be served consecutively, yielding a total sentence of 1,620 months' incarceration. York timely appealed.

II. ISSUES ON APPEAL

On appeal, York raises several assignments of error, including: (1) the Indictment misjoined the sexual abuse charges with the financial-structuring charges, and the district court erred in refusing to sever those charges; (2) the district court erred in refusing to dismiss the RICO counts because the United Nation of Nuwaubian Moors is not an "enterprise" under RICO and because there is an insufficient connection between York's alleged acts and the Nuwaubian organization; (3) the district court erred in refusing to dismiss the Indictment because the Indictment was improperly returned by a grand jury tainted by pre-trial publicity; (4) the district court erred in allowing the government to call a certain witness in rebuttal, and further erred by refusing to allow York to call his own rebuttal witness thereafter; (5) there was insufficient evidence to convict York of the charges that he transported minors in interstate commerce with the intent that the minors would engage in unlawful sexual activity, and further, the government did not put forth sufficient evidence to prove that any underlying sexual activity undertaken by York was actually unlawful; (6) the district court erred in denying York's motion to dismiss two counts of the Indictment because the minor victim was undisputedly over the age of consent at the time the sexual act took place;4 (7) the district court erred in denying York a continuance when York switched lead counsel approximately two weeks before trial; (8) York's sentence violates the Sixth Amendment under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court enhanced his sentence based on facts not reflected in the jury's verdict; (9) York's sentence is invalid under Booker because he was sentenced under a mandatory, rather than advisory, guidelines scheme; and (10) York's sentence violates the ex post facto clause of the Constitution because York was sentenced under the November 2000 edition of the United States Sentencing Guidelines ("Guidelines") rather than under the November 1993 edition of the Guidelines.5

III. DISCUSSION

After careful review of the voluminous record in this case, as well as the arguments of the parties in both their briefs and at oral argument, we conclude that all of York's claims of error lack merit.6 Only York's pre-trial publicity and severance claims, along with York's three assignments of sentencing error, warrant further discussion.

A. Pre-Trial Publicity

In late October 2003, the district court granted York's motion to change venue and ordered that the location of York's trial be moved from the United States District Court for the Middle District of Georgia (Macon Division) to the United States District Court for the Southern District of Georgia (Brunswick Division). In its change-of-venue order, the district court "first note[d] that the Government has not objected to Defendant's motion." The district court then stated that it had "grave concerns about trying to select a jury in this case in any division in the Macon and Atlanta media markets" and concluded that York could not receive "a fair and impartial trial" if the trial were to take place in Macon.7

...

To continue reading

Request your trial
62 cases
  • Pretka v. Kolter City Plaza II, Inc., No. 10-11471 (11th Cir. 6/8/2010), 10-11471.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...to retain their own jurisdiction." Wecker v. Nat'l Enameling & Stamping Co., 204 U.S. 176, 186, 27 S.Ct. 184, 188 (1907); see also Legg, 428 F.3d at 1325. The Lowery opinion's dicta would provide plaintiffs with a trick by which they could make federal jurisdiction disappear. A diverse plai......
  • Davis v. United States
    • United States
    • U.S. District Court — Southern District of Alabama
    • August 3, 2015
    ...widely drawn, and thevalidity of an indictment is not affected by the character of the evidence considered." United States v. York, 428 F.3d 1325, 1332 (11th Cir. 2005) (per curiam) (citations and quotations omitted). See also Fed. R. Evid. 1101(d)(2) ("except for those on privilege," exclu......
  • Dell v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 27, 2013
    ...(“The district court erred when it sentenced Underwood because it considered the Guidelines to be mandatory....”); United States v. York, 428 F.3d 1325, 1336 (11th Cir.2005) (“[T]he district court did commit statutory Booker error by sentencing York under a mandatory Guidelines scheme.”); U......
  • Pretka v. Kolter City Plaza II, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2010
    ...own jurisdiction." Wecker v. Nat'l Enameling & Stamping Co., 204 U.S. 176, 186, 27 S.Ct. 184, 188, 51 L.Ed. 430 (1907); see also Legg, 428 F.3d at 1325. The Lowery opinion's dicta would provide plaintiffs with a trick by which they could make federal jurisdiction disappear. A diverse plaint......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT