United States v. Nicholson, 15-1963

• Decision Date: 17 November 2017
• Docket Number: No. 15-2065,No. 15-1966,No. 15-1998,No. 15-2064,No. 15-1963,No. 15-2089,15-1963,15-1966,15-1998,15-2064,15-2065,15-2089
• Parties: UNITED STATES OF AMERICA Plaintiff-Appellee, v. MARVIN NICHOLSON; BRIAN JACKSON; SHERMAN BROWN; MATTHEW SCHAMANTE; BRYAN SORRELL; ANTONIO JOHNSON, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA Plaintiff-Appellee, v. MARVIN NICHOLSON; BRIAN JACKSON;

SHERMAN BROWN; MATTHEW SCHAMANTE;

BRYAN SORRELL; ANTONIO JOHNSON, Defendants-Appellants.

No. 15-1963

No. 15-1966

No. 15-1998

No. 15-2064

No. 15-2065

No. 15-2089

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

November 17, 2017

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0638n.06

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

BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. This consolidated appeal arises from the convictions of six members of the Phantom Motorcycle Club ("PMC"): Marvin Nicholson, Antonio Johnson, Bryan Sorrell, Matthew Schamante, Brian Jackson, and Sherman Brown.

The government brought various charges against these six appellants and others¹ in a fifteen-count indictment. After a six-week trial, the jury convicted these defendants of:

• Nicholson - RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); two counts of Use and Carry of a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5); Assaulting, Resisting, or Impeding Certain Officers or Employees with a Dangerous Weapon, 18 U.S.C. § 111(b); two counts of Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1).

• Johnson - RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); Use and Carry of a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5); Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1).

• Sorrell - RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); Use and Carry of a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).

• Schamante - RICO Conspiracy, 18 U.S.C. § 1962(d); Possession of a Firearm Not Registered in the National Firearms Registration, 26 U.S.C. §§ 5841, 5861(d), 5871.

• Jackson - Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).

• Brown - Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).

The appellants now challenge numerous aspects of the trial and sentencing. We affirm the trial court.

I.

The charges and convictions in this case stem from a series of PMC confrontations with rival motorcycle clubs. PMC is an "outlaw" motorcycle club that has chapters in Michigan, Ohio, and six other states. The Detroit chapter is the "mother chapter." PMC has a hierarchical structure, with a national president, vice-president, enforcers, and treasurer. Each chapter also has a chapter president and vice-president. PMC has a set of by-laws, members are required to pay dues, and chapters pay money to the national treasurer.

PMC places high value on being the toughest, or "baddest," outlaw motorcycle club. One way to establish this dominance is to take the leather vests worn by members of rival clubs (known as "rags"), which are important symbols in motorcycle club culture. This is considered the ultimate sign of disrespect. PMC members are not allowed to let rivals take their own rags, and they must resist with force or use violence to get them back. PMC's rival motorcycle clubs in the Detroit area include Hell Lovers and Satan's Sidekicks.

Johnson served as PMC's national president from 2009 until his indictment in this case. Nicholson was a national enforcer, whose job it was to protect the national president. Brown was formerly a national enforcer, but at the time of the indictment he no longer held a national role. Sorrell and Jackson were both members of the Inkster, Michigan, chapter of PMC. Schamante was vice president and then president of the Pontiac, Michigan, chapter.

Carl Miller, who gave extensive testimony as a government witness in this case, joined PMC in 2007 and then became president of the Detroit chapter in 2012. After he was arrested helping Sorrell steal a motorcycle in 2013, Miller began to cooperate with the ATF and FBI investigation of PMC. Miller began recording his conversations with other PMC members, and many of these recordings were introduced at trial.

II.

The defendants first challenge the district court's denial of their motions for acquittal based on insufficient evidence on several counts. The district court's denial of a motion for judgment of acquittal is reviewed de novo. See United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016), cert. denied, 137 S. Ct. 79 (2016). In assessing the sufficiency of the evidence, the test is "whether, 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." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." United States v. Lowe, 795 F.3d 519, 522-23 (6th Cir. 2015) (quoting United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)). This standard imposes "a very heavy burden" on defendants. United States v. Barnes, 822 F.3d 914, 919 (6th Cir. 2016) (quoting United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006)). We find that each conviction is supported by sufficient evidence.

A.

Johnson, Nicholson, Sorrell, and Schamante first challenge the sufficiency of evidence with regards to their RICO conspiracy convictions under 18 U.S.C. § 1962(d). To be convicted of RICO conspiracy, a defendant must intend to further an endeavor that, if completed, would satisfy all elements of a RICO offense. Salinas v. United States, 522 U.S. 52, 65 (1997); United States v. Fowler, 535 F.3d 408, 421 (6th Cir. 2008). Defendants were charged with conspiring to violate § 1962(c). Therefore, to sustain these convictions, the government must have shown that each defendant agreed (1) to associate with an enterprise that has activities affecting interstate commerce; (2) to participate in the conduct of the enterprise's affairs; and (3) that either he or another conspirator would engage in a pattern of racketeering activity. See Fowler, 535 F.3d at 418; see also 18 U.S.C. § 1962(c)-(d).

1.

Defendants first claim that the government failed to show at trial that PMC is an enterprise. 18 U.S.C. § 1961(4) defines "enterprise" for RICO purposes as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact . . . ." Here, the government alleged an association-in-fact enterprise. An association-in-fact enterprise requires only three structural 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).

At trial, the prosecution presented ample evidence that PMC had the required purpose, relationships, and longevity to qualify as an enterprise. The government showed that PMC's purpose was to promote and protect the organization's "power, territory, and reputation . . . through the use of intimidation [and] violence" by introducing testimony outlining the importance to PMC of earning respect as the "baddest" motorcycle club. DE 201, Third Superseding Indictment, Page ID 1664. It also demonstrated that PMC had the purpose of enhancing its members' money-making activities, including trafficking in stolen motorcycles, by showing that Phantoms assisted each other in stealing motorcycles and transporting them across state lines. For example, Phantoms would alert each other when a member had stolen a motorcycle, and a Phantom would be assigned to teach new members how to steal motorcycles. The required relationships were evidenced by testimony regarding PMC's by-laws, its hierarchical chain of command, and the process for becoming a PMC member. Finally, in addition to testimony from multiple witnesses who had been members of PMC for several years, the government introduced evidence that PMC has existed since 1968, demonstrating longevity. Based on this, a rational juror could conclude that PMC was an association-in-fact enterprise.

Sorrell and Schamante also argue that PMC's activities did not affect interstate commerce. To meet RICO's "affecting interstate commerce" requirement, the government need only prove that the enterprise as a whole engaged in interstate commerce or that its activity affected interstate commerce. See United States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985) (noting that it is the conduct of the "criminal enterprise itself," rather than the "individual defendant," that must affect interstate commerce). If an enterprise engages in economic activity, then even a de minimis connection to interstate commerce is sufficient to meet the interstate requirement; however, if an enterprise does not engage in economic activity, then it must have a more significant effect on interstate commerce. See Waucaush v. United States, 380 F.3d 251, 255-56 (6th Cir. 2004).

At trial, the jury heard extensive testimony regarding PMC's interstate economic activities, such as paying money toward a national fund and transporting stolen motorcycles across state lines. Testimony also evidenced members' use of hotels during PMC gatherings. Thus, a jury could rationally conclude from the evidence that PMC was...