United States v. Harris

• Citation: 695 F.3d 1125
• Decision Date: 18 September 2012
• Docket Number: No. 10–3173.,10–3173.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tracy HARRIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

695 F.3d 1125

UNITED STATES of America, Plaintiff–Appellee,

v.Tracy HARRIS, Defendant–Appellant.

No. 10–3173.

United States Court of Appeals, Tenth Circuit.

Sept. 18, 2012.

Kurt P. Kerns of Ariagno, Kerns, Mank & White LLC, Wichita, KS, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant–Appellant Tracy Harris (“Harris”) was convicted under 18 U.S.C. § 1962(d) of conspiracy to commit a racketeering offense in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and sentenced to 188 months in prison. On appeal, he challenges the substantive correctness of the jury instructions on the elements of § 1962(d) conspiracy; the sufficiency of the evidence to convict him of that crime; the failure of the district court to issue a jury instruction on the affirmative defense of withdrawal; and the substantive and procedural reasonableness of his sentence. ¹

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), we hold (1) that the existence of an enterprise is not a required element of § 1962(d) conspiracy; (2) alternatively, even if the Government was required to prove the existence of an enterprise, there was sufficient evidence to show that the various gang sets in this case constituted an association-in-fact enterprise under Boyle v. United States, 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009); and (3) that Harris failed to present evidence that he had withdrawn from the alleged conspiracy sufficient to warrant a jury instruction on that defense. Further, under the concurrent-sentence doctrine, we decline to review Harris's challenge to his sentence. We therefore AFFIRM Harris's conviction and sentence.

I. BACKGROUND

The Crips are one of several street gangs active in Wichita, Kansas. There are “sets” and “subsets” of the Crips in Wichita, including the Insane Crips, the Deuce Trey Crips, the Neighborhood Crips, and the Tre Five Seven Crips. While these sets each have their own leaders, and often operate independently of each other, they share certain common features, such as wearing the color blue, showing the Crip sign, using the Crip handshake, and harboring animosity towards members of other gangs. Crips socialize exclusively with other Crips, and members of different sets would meet regularly and would work together to make money. This case arises out of the investigation, by the Wichita police, of the Crips gang and its criminal activity in Wichita, and the subsequent prosecution of several Crips in connection with that activity.

Harris was indicted, along with several co-defendants, in a thirty-eight-count indictment charging violations of RICO, as well as violations of federal weapons, drug, and wire fraud statutes.

Generally speaking, Harris was alleged to have been a major drug supplier involved in drug trafficking, who owned houses where drug trafficking took place. Harris personally was charged with one count of participating in an enterprise through a pattern of racketeering activity under 18 U.S.C. § 1962(c) (Count 1) (the “substantive RICO violation”), one count of conspiracy to commit a substantive RICO violation under 18 U.S.C. § 1962(d) (Count 2) (“RICO conspiracy”), one count of conspiracy to distribute cocaine base (Count 3), one count of conspiracy to distribute marijuana (Count 4), one count of possession of a firearm by a felon (Count 17), two counts of possession of a firearm in furtherance of a drug trafficking crime (Counts 18 and 19), one count of possession with intent to distribute cocaine (Count 20), two counts of wire fraud (Counts 21 and 22), and two counts relating to intimidation of a witness (Counts 23 and 24).

Harris and his co-defendants, Clinton Knight and Chester Randall, were tried together in a two-week jury trial, after which the jury convicted Harris on Counts 2 (RICO conspiracy), 17 (felon-in-possession), and 21 (wire fraud). Harris was acquitted on Counts 1, 3, 19, and 20.² The Probation Officer prepared a Presentence Investigation Report (“PSR”) that calculated Harris's offense level to be 44 and his criminal history category to be VI, resulting in an advisory guidelines range of life imprisonment.³ Harris raised several objections to the PSR, upon which the district court ruled. The district court adopted the PSR without change, but ultimately concluded, after consideration of the sentencing factors of 18 U.S.C. § 3553(a), that a downward variance was appropriate. In particular, the district court was concerned about the disparities that would be created if Harris were sentenced to life. The district court reduced Harris's offense level to 31, resulting in an advisory guidelines range of 188–235 months' imprisonment, and sentenced Harris at the bottom of that range: 188 months on Count 2, 120 months on Count 17, and 188 months on Count 21, all sentences to run concurrently.

Additional facts are set forth below as they become relevant to the discussion.

II. DISCUSSION

A. Jury instructions on elements of RICO conspiracy

The first issue in this appeal is whether, to prove a conspiracy under 18 U.S.C. § 1962(d) to commit a substantive RICO violation under 18 U.S.C. § 1962(c), the Government must prove the existence of “an enterprise.” The jury was instructed that it did not need to find the existence of an enterprise. Because Harris did not object to this jury instruction below, this Court reviews the district court's instruction for plain error. See United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir.2012). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez–Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc) (internal quotation marks omitted). “[A]n error is ‘plain’ if it is clear or obvious at the time of the appeal....” Id. And an error affects substantial rights when the error “affected the outcome of the district court proceedings.” Id. (internal quotation marks omitted). The burden is on Harris to show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Fields, 516 F.3d 923, 944 (10th Cir.2008) (internal quotation marks omitted). ⁴

The district court instructed the jury on the elements of Count 2 as follows:

First: A conspiracy or agreement, as detailed in the indictment, existed between two or more persons to participate in the affairs of an enterprise that affected interstate commerce through a pattern of racketeering activity;

Second: that defendant deliberately joined or became a member of the conspiracy or agreement with knowledge of its purpose[;] and[ ]

Third: the defendant agreed that someone, not necessarily the defendant, would commit at least two of the racketeering acts detailed in the indictment.

ROA v. 1 at 409 (Jury Instruction No. 24). In addition, the court instructed:

Unlike the charge in Count 1 [the substantive violation under § 1962(c) ], the government need not prove a defendant actually committed two racketeering acts, nor that the objectives or purposes of the conspiracy, whatever they may have been, have been achieved or accomplished, nor that the alleged enterprise was actually established, that the defendant was actually employed by or associated with the enterprise, or that the enterprise was actually engaged in, or its activities actually affected, interstate or foreign commerce. The essential nature of Count 2 is the conspiratorial agreement; the ultimate success or failure of the conspiracy is irrelevant.

Id. (emphases added).

Harris complains on appeal that this jury instruction inaccurately stated the law. Harris argues that the elements of a § 1962(d) conspiracy were laid out by this Court in United States v. Smith, 413 F.3d 1253, 1266 (10th Cir.2005), abrogated on other grounds by United States v. Hutchinson, 573 F.3d 1011 (10th Cir.2009), and that Smith's six-part formulation should control. Harris contends that the district court's instructions misled the jury by combining discrete elements from Smith into one element, placing elements out of order, and referring without specificity to the indictment, thus allowing jurors improperly to consider irrelevant portions of the indictment.

We now hold that the existence of an enterprise is not an element of § 1962(d) conspiracy to commit a substantive RICO violation. We hold further that the challenged jury instruction accurately stated the law, and that the district court's general reference to the indictment was not error. Harris's argument on this issue therefore fails the first prong of the plain error test.

In Smith, this Court held 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.

413 F.3d at 1266. Harris argues that, under Smith, “the existence of an enterprise” is an element of conspiracy to commit a RICO violation under § 1962(d) and must be proved. Aplt. Br. at 19. However, the defendant in Smith did not contend that existence of an enterprise was not a necessary element of a § 1962(d) violation. See413 F.3d at 1267. Instead, the Smith defendant argued only that the evidence against him failed to establish the existence of an enterprise. See id. at 1266–67. Consequently, in Smith this Court focused on what constituted an “enterprise” under RICO, and did not address the alternate possibility that the “existence of an enterprise”...