United States v. Bailey

• Decision Date: 05 July 2022
• Docket Number: 19-2280
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COREY BAILEY (19-2280); ARLANDIS SHY, II (19-2281); ROBERT BROWN, II (19-2354); KEITHON PORTER (20-1235), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

COREY BAILEY (19-2280); ARLANDIS SHY, II (19-2281); ROBERT BROWN, II (19-2354); KEITHON PORTER (20-1235), Defendants-Appellants.

No. 19-2280

United States Court of Appeals, Sixth Circuit

July 5, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: BOGGS, THAPAR, and BUSH, Circuit Judges.

OPINION

THAPAR, Circuit Judge.

For over a decade, the Seven Mile Bloods used a combination of threats and violence to control a swath of territory in east Detroit. The defendants were convicted for their roles in these efforts. And they now bring a host of challenges to those convictions and their sentences. But we find no error and affirm.

I.

In this appeal, several members and associates of a Detroit street gang known as the Seven Mile Bloods (SMB)-Corey Bailey, Arlandis Shy, Robert Brown, and Keithon Porter-challenge their convictions for conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO) and related offenses. SMB was founded in 2005. Before then, drug dealers from across the city would sell drugs between Seven Mile Road and Eight Mile Road in Detroit. But once SMB staked its claim to this area, nobody else was allowed to sell drugs there. If anyone tried to,

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SMB would "[s]teal their customers" and "fight with them." R. 1123, Pg. ID 11003. The area developed such a bloody reputation that it was soon termed the "Red Zone."

Over time, law enforcement began to crack down on the Red Zone. This made dealing drugs there more dangerous and less profitable. So when Jason Gill, an SMB member, learned that money could be made more easily in West Virginia, he and other SMB members and associates began traveling there to sell drugs-mostly prescription pain killers. They would travel together, stay together, and ferry drugs and money for each other.

During this period, several SMB members were arrested in West Virginia. Shy had several encounters with the West Virginia police; one time he was caught ferrying 300 Oxycontin pills for Anthony Lovejoy, an SMB associate. And on another occasion, Bailey was found with 54 Oxymorphone pills stuffed up his buttocks. Brown, too, had interactions with the police in West Virginia.

In the summer of 2014, Billy Arnold (a senior SMB member) was released from prison. Arnold believed the Hustle Boys, a rival gang, had set him up on the charges. So when he saw members of the Hustle Boys (twins named Martez and Michael Davis) at his parole office later that year, he decided to act. Arnold called Bailey, who drove down to the parole office to join him. When the Davis twins left their meeting, they got into a car with Djuan Page and Corey Crawford. Arnold and Bailey then drove past the Hustle Boys, and Arnold opened fire, wounding one twin and fatally shooting Page in the eye. SMB members later bragged about the attack, even creating a rap video about shooting someone in the "e-y-e." R. 1126, Pg. ID 11488. And they posted a brochure from Page's memorial service on Instagram to mock the Hustle Boys.

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The gang violence only escalated from there. On May 1, 2015, rival gang members shot and killed Devon McClure, a founding member of SMB. SMB retaliated that same day, gunning down Raphael Carter. A week later, on May 8, 2015, Arnold, Shy, and Porter shot up another car full of rival gang members, killing Dvante Roberts and wounding at least two others. And just two days after that, on May 10, 2015, SMB members attacked another group of rival gang members. Brown and Arnold opened fire on the rival gang's car, wounding Derrick Peterson. Then SMB members struck again. Darnell Canady was attending a baby shower when Arnold drove up and fired. Canady was hit. And so was a 15-year-old bystander.

Federal agents eventually charged twenty-one SMB members and associates. The trial here began in June 2018 and lasted over two months. The jury convicted all four defendants at issue (Bailey, Shy, Brown, and Porter) of RICO conspiracy. Bailey, Brown, and Porter were also convicted of related offenses, and Shy was acquitted of all other charges. The defendants appealed, bringing dozens of claims.

II.

Bailey, Brown, and Porter argue that their convictions are not supported by sufficient evidence. "A defendant challenging the sufficiency of the evidence bears a very heavy burden." United States v. Warshak, 631 F.3d 266, 308 (6th Cir. 2010) (citation omitted). We must uphold their convictions if, "after 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The government may carry its burden with "circumstantial evidence alone, and such evidence need not exclude every possible hypothesis except that of guilt." United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995).

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A.

Start with Bailey. He was convicted on five counts: (1) one count of RICO conspiracy in violation of 18 U.S.C. § 1962(d); (2) one count of murder in aid of racketeering in violation of 18 U.S.C. § 1959; and (3) three counts of attempted murder in aid of racketeering in violation of section 1959. First, we address Bailey's conspiracy conviction. And then we address his convictions for murder in aid of racketeering and attempted murder in aid of racketeering.

1.

RICO makes it "unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). RICO also makes it "unlawful for any person to conspire to violate" that provision. Id. § 1962(d). Bailey argues that his conviction is invalid for two reasons: (1) there was no RICO "enterprise"; and (2) the government did not prove he agreed to participate in any enterprise.

We start with his contention that there was no RICO "enterprise." RICO defines an "enterprise" to include "any union or group of individuals associated in fact." Id. § 1961(4). This is a broad definition that encompasses any entity which shares three features: "a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose." Boyle v. United States, 556 U.S. 938, 946 (2009). Put differently, any group that associates for a common purpose qualifies. Id. And this group need not have a formal structure. Id. at 948. Nor do group members need to have fixed roles. See id. Indeed, the group need not even have "a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies." Id.

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According to Bailey, SMB was simply a group of individuals who did not associate for a common purpose but instead engaged in isolated criminal behavior for their own benefit. But construing the evidence in the light most favorable to the government, as we must, a rational factfinder could conclude that a RICO enterprise existed.

To begin, the record is full of evidence that SMB was a "distinct, identifiable group." United States v. Brown, 973 F.3d 667, 683 (7th Cir. 2020). Indeed, many witnesses testified that SMB was a gang, including Matleah Scott (partner of McClure, an SMB leader killed in the violence). Scott also described an SMB meeting where McClure chastised other members for not "taking being in the gang as serious as he was" because "he was the only one who was willing to put his life on the line for it." R. 1128, Pg. ID 11808. What's more, SMB members often sported tattoos proclaiming their affiliation with the gang. And they developed symbols and hand gestures to promote their group identity. See Brown, 973 F.3d at 684 ("The [gang members] also showed their unity through tattoos and hand signs."). They then advertised that identity by, for example, producing a series of rap videos to intimidate rival gangs and brag about their criminal exploits.

SMB members and associates also worked together to maximize their profits and protect their "exclusive territory"-the Red Zone. Id. at 683; cf. United States v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999) (noting that "the existence of a drug conspiracy based on monopolistic conduct is not novel"). Indeed, before SMB was founded, competitors would sell in the Red Zone. But once SMB was started, they would "not let that happen." R. 1123, Pg. ID 11003 (cleaned up). If anyone else tried to sell drugs in the Red Zone, SMB members and associates would "[s]teal their customers" and "fight with them." Id.

On top of that, SMB members also worked together to traffic drugs in West Virginia. When Lovejoy was selling pills in West Virginia, SMB members resupplied him with 300 pills every

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day. According to Lovejoy, SMB only trusted members and close associates to ferry the pills to West Virginia.

SMB members also "protected each other and retaliated on behalf of one another." Brown, 973 F.3d at 683. If someone attacked an SMB member, other members would violently retaliate. When another gang killed McClure, for example, SMB members started a months-long war with rival gangs. They shot Raphael Carter that same day. And they attacked another group a week later. Indeed, SMB members went "hunting" for rival gang members for months after McClure's murder. R. 1128, Pg. ID 11834. Thus, viewed in the light most favorable to the government, SMB was a "group of persons associated together for a common purpose of engaging in a course of conduct." Boyle, 556 U.S. at 946 (citation omitted).

So we move to Bailey's second argument: that there is insufficient evidence he agreed to participate in the conspiracy. To convict Bailey of RICO conspiracy, the government needed to prove that he intended to "further an...