United States v. Hankton

Docket Number16-30995
Decision Date14 October 2022
Parties UNITED STATES of America, Plaintiff—Appellee, v. Telly HANKTON; Walter Porter ; Kevin Jackson; Andre Hankton, Defendants—Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Jeffrey Ryan McLaren, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.

Meghan Harwell Bitoun, New Orleans, LA, for Defendant-Appellant Telly Hankton.

Sarah Lynn Ottinger, Esq., New Orleans, LA, for Defendant-Appellant Walter Porter.

Michael Seth Fawer, Esq., Smith & Fawer, New Orleans, LA, for Defendant-Appellant Kevin Jackson.

Celia Clary Rhoads, Esq., Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant Andre Hankton.

Before Dennis, Southwick, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Telly Hankton, Andre Hankton,1 Walter Porter, and Kevin Jackson were convicted of numerous crimes stemming from their participation in a violent New Orleans street gang. We affirm their convictions in large part, vacate in part, and remand for further proceedings.


The defendants were members of the Hankton Enterprise, a gang led by Telly that sold drugs in the Central City neighborhood of New Orleans. In January 2004, a turf war erupted between the Hankton Enterprise and a rival gang led by Brian Broussard. The feud sparked several shootings and led to at least seven murders. In particular, four violent interactions form the basis of many of the defendants' convictions: (1) the murder of Darnell Stewart, (2) the murder of Jesse Reed, (3) the attempted murder of a daquiri shop owner, and (4) the murder of the daquiri shop owner's brother.

Stewart and Reed were members of Broussard's gang; they killed Hankton Enterprise member George Hankton3 on December 17, 2007. A few months after George's murder, Andre—with Telly riding in the passenger seat—tailed a vehicle driven by Stewart down the "neutral ground" of Claiborne Avenue. Shortly, Stewart exited his still-moving vehicle, which crashed into a dumpster, and took off on foot across the street toward a daquiri shop. Andre stopped next to Stewart's vehicle, and Telly jumped out and gave chase. Before Telly could reach Stewart, Andre hit the gas and rammed his vehicle into Stewart, causing him to fly "end over end" into the air and collapse on the ground. As Stewart lay there, Telly stood over him and shot him approximately ten times before running away. With Stewart dead, Andre sped off in a different direction. After the murder, the owner of the daquiri shop, who witnessed the crime, provided video surveillance footage from the store's security cameras to the police.

Biding time, Telly hired Porter about a year later to murder Reed in further payback for George's death. Because Porter did not know what Reed looked like, he met Telly and Jackson on June 20, 2009, to hunt for Reed together. When they found Reed outside a restaurant, all three men exited Telly's vehicle and began shooting. Jackson shot into a crowd of people, Telly shot Reed's legs, and Porter unloaded "both of his clips from both of his guns in [Reed's] face and body." Reed was shot 50 times and died from his injuries.

A few months later, Telly, who was in prison for his involvement in Reed's murder, ordered the killing of the daquiri shop owner who provided the video footage of Stewart's murder to the police. In October 2010, a Hankton Enterprise member shot the daquiri shop owner 17 times but did not kill him. A year later, Porter shot and killed the daquiri shop owner's brother, ostensibly a revenge killing as well.

On June 19, 2014, a federal grand jury in the Eastern District of Louisiana indicted Telly, Andre, Porter, Jackson, and nine others for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act (VICAR) in a 24-count indictment.4 Two years later, the district court held a three-week trial that included dozens of exhibits and testimony from over 70 witnesses. The jury convicted the defendants on some charges and acquitted them on others.

In November 2016, the district court sentenced the defendants. Their convictions and resulting sentences are summarized in the following chart:

Telly Porter Andre Jackson
Count 1: RICO Conspiracy Life Life Life
Count 2: Conspiracy to Distribute Controlled Substances Life Acquitted
Count 3: Conspiracy to Possess Firearms (18 U.S.C. § 924(o)) 240 months 240 months 240 months Acquitted
Count 4: Conspiracy to Obstruct Justice 240 months
Count 5: Murdering Darvin Bessie in Aid of Racketeering Life
Count 6: Causing Bessie's Death Through the Use of a Firearm (18 U.S.C. § 924(j)) Life
Count 7: Murdering Stewart in Aid of Racketeering Life Acquitted
Count 8: Causing Stewart's Death Through the Use of a Firearm (18 U.S.C. § 924(j)) Life Life
Count 9: Possession of Sawed-Off Shotgun 120 months
Count 10: Murdering Reed in Aid of Racketeering Life Life Life
Count 11: Causing Reed's Death Through the Use of a Firearm (18 U.S.C. § 924(j)) Life Life Acquitted
Count 12: Murdering Hasan Williams's in Aid of Racketeering Life
Count 13: Causing Williams's Death Through the Use of a Firearm (18 U.S.C. § 924(j)) Life
Count 14: Felon in Possession of a Firearm 120 months
Count 15: Assaulting the Daquiri Shop Owner with a Dangerous Weapon in Aid of Racketeering Acquitted 240 months
Count 16: Use and Carrying of a Firearm During and in Relation to a Crime of Violence and a Drug Trafficking Crime against the Daquiri Shop Owner (18 U.S.C. § 924(c)) Acquitted 120 months
Count 17: Murdering the Daquiri Shop Owner's Brother in Aid of Racketeering Life
Count 18: Causing the Daquiri Shop Owner's Brother's Death Through the Use of a Firearm (18 U.S.C. § 924(j)) Life
Count 21: Felon in Possession of a Firearm 120 months
Count 22: Felon in Possession of a Firearm 120 months

The defendants filed timely notices of appeal, raising a number of issues: (1) Andre, Porter, and Telly challenge their convictions under 18 U.S.C. § 924 ; (2) Andre and Telly contend their restitution order should be vacated; (3) Telly challenges the admission of various evidence at trial; (4) Porter contends that the district court erred in concluding that he was competent to stand trial; (5) Telly, Porter, and Jackson assert that the district court erred in denying their motions to sever their trials; (6) all four defendants contend that the district court erred in denying their motions for sanctions or dismissal of the second superseding indictment after an alleged leak of grand jury information to a New Orleans newspaper; (7) Jackson contends that the district court erred by neglecting to instruct the jury that it was required unanimously to find him guilty of Reed's murder either as a principal or as an accomplice; (8) Jackson challenges the sufficiency of the evidence to support his convictions for RICO conspiracy and for murdering Reed; and (9) Andre, Porter, and Jackson assert that cumulative errors mandate reversal. We discuss each issue and additional facts specific to the defendants' contentions in turn.


Andre and Porter challenge their convictions under the Federal Gun Control Act, 18 U.S.C. § 924. Specifically, Porter was convicted of violating §§ 924(c), 924(j), and 924(o) (Counts 3, 11, 13, 16, and 18); Andre was convicted of violating §§ 924(j) and 924(o) (Counts 3 and 8). Section 924(c) "threatens long prison sentences for anyone who uses a firearm in connection with" any crime of violence or drug trafficking crime. United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2323, 2327, 204 L.Ed.2d 757 (2019). Section 924(j) "applies to people who cause death in the course of [a] violation of § 924(c)." United States v. McClaren , 13 F.4th 386, 412–13 (5th Cir. 2021). Finally, § 924(o) provides that "[a] person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than 20 years." Andre and Porter contend, and the Government acknowledges, that their § 924 convictions may have been erroneously predicated on a RICO conspiracy, which is not a crime of violence. See United States v. Jones , 935 F.3d 266, 271 (5th Cir. 2019).

We review this unpreserved claim for plain error. McClaren , 13 F.4th at 413. To prevail, an appellant must clear four hurdles:

(1) there must be an error; (2) the error must be "clear or obvious, rather than subject to reasonable dispute"; (3) "the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings"; and (4) the court must decide in its discretion to correct the error because it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."

Jones , 935 F.3d at 271 (quoting Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ) (internal quotation marks omitted).

In Jones , gang members were convicted of "racketeering, drug, and firearm offenses—including several offenses under 18 U.S.C. § 924." Id. at 268. "For each § 924 offense, the indictment charged a [RICO] conspiracy ... as a predicate crime of violence, and a controlled-substance conspiracy ... as a predicate drug trafficking crime." Id. at 269. "The verdict form did not require the jury to specify which predicate offense or offenses it relied upon in convicting [the] [a]ppellants of the § 924 offenses." Id. On appeal, the Jones appellants contended that their § 924(c) convictions could not be predicated on RICO conspiracy because RICO conspiracy is not a crime of violence under Davis . Id. Reviewing for plain error, the Jones panel ultimately agreed and concluded that there was "a reasonable probability that, but for the error, the outcome of the proceeding...

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