United States v. Odum

• Decision Date: 30 November 2017
• Docket Number: Nos. 15-2280/2503,s. 15-2280/2503
• Citation: 878 F.3d 508
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher ODUM (15–2280); William Frazier (15–2503), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

878 F.3d 508

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher ODUM (15–2280); William Frazier (15–2503), Defendants–Appellants.

Nos. 15-2280/2503

United States Court of Appeals, Sixth Circuit.

Argued: October 4, 2017

Decided and Filed: November 30, 2017^*

Rehearing En Banc Denied January 4, 2018

ARGUED: Karen J. Davis Roberts, Saline, Michigan, for Appellant in 15–228. Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant in 15–2503. Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Karen J. Davis Roberts, Saline, Michigan, for Appellant in 15–228. Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Appellant in 15–2503. Mark J. Chasteen, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

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

JULIA SMITH GIBBONS, Circuit Judge.

This appeal arises from the convictions of two members of the Phantom Motorcycle Club ("PMC"), William Frazier and Christopher Odum. The government brought various charges against these two appellants and twelve others¹ in a fifteen-count indictment. Although the case initially proceeded as a consolidated trial against all defendants, Frazier and Odum were severed, and the case against them proceeded separately. After a three-week trial, the jury convicted Frazier of two counts of assault with a dangerous weapon in aid of racketeering, 18 U.S.C. § 1959(a)(3) (VICAR), and one count of use and carry of a firearm during, and in relation to, a crime of violence, 18 U.S.C. § 924(c). Odum was convicted of conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a)(5) (VICAR).

Frazier and Odum raise numerous challenges to their convictions on appeal. Specifically, they assert several claims of insufficient evidence to sustain their convictions as well as claims of improper venue, the improper admission of hearsay statements, and due process violations for failure to call a witness or provide certain evidence to the defense. For the reasons addressed below, we affirm the convictions.

I.

PMC is an "outlaw" motorcycle club that has existed since 1968. The club has chapters in Michigan, Ohio, and six other states, and Detroit is the "mother" chapter. PMC has a hierarchical structure, with a national president, vice president, and enforcers. Below the national officers are local chapters with presidents and vice presidents. Members wear leather vests, known as "rags," which are important symbols in motorcycle club culture. Rags display a certain member’s club and that club’s territory, and PMC competes with rival outlaw clubs to be the dominant club within certain territories.

Frazier became the vice president of the Pontiac chapter of PMC in 2010 after transferring from another PMC chapter. Frazier’s charges and convictions in this case relate to a shooting that took place during a PMC anniversary gathering in Columbus, Ohio, in October 2012. After arriving in Columbus for the event, Frazier met up with other Phantoms—Vincente Phillips and Maurice Williams—at the PMC clubhouse there. These three men, while wearing their rags, went to get food at another club’s clubhouse. While there, a man wearing a third club’s rags bumped into Williams, and Williams and Phillips began fighting with him and another man who attempted to intervene. Seeing this altercation, Frazier fired two shots, hitting Keith Foster and Shalamar Thompson, who were both members of the Zulus motorcycle club. The PMC members then fled the scene and immediately returned to the PMC clubhouse to report to PMC leaders what happened. It was later determined that Foster was the Zulus’s national president. As a result, PMC leadership decided that the Pontiac chapter would have to pay for the PMC national president, Antonio Johnson, to travel to Cleveland to meet with the Zulus in order to prevent retaliation for the shooting. At trial, Williams, Phillips, and Phantom-turned government informant Carl Miller all testified to this incident.

Odum joined PMC’s Detroit chapter in 2011, and his charges stem from his involvement in the later PMC conspiracy to murder members of a rival motorcycle club, the Hell Lovers. After PMC member Steven Caldwell was murdered in September 2013, Johnson held a meeting in which he called for retaliation against the Hell Lovers—the suspected culprits. Johnson announced a plan to murder three Hell Lovers, which would cause other Hell Lovers to travel to Michigan for the funerals, at which time PMC would attack and kill a large number of their members. Although Odum did not attend this meeting, he was apprised of the plan. In a recorded conversation with Miller, Odum stated that Johnson had given Odum the green light to kill Hell Lovers. The plan was disrupted when the ATF and FBI executed search warrants on Johnson’s and another Phantom member’s homes. These searches and the evidence uncovered during them led to the indictment in this case.

II.

Odum and Frazier first argue that there was insufficient evidence to convict them of violent crimes in aid of racketeering under 18 U.S.C. § 1959 ("VICAR").² We hold there is sufficient evidence to sustain these convictions.

A district court’s refusal to grant a motion to acquit for insufficiency of the evidence is reviewed de novo . United States v. Vichitvongsa , 819 F.3d 260, 270 (6th Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 79, 196 L.Ed.2d 70 (2016). The standard 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 the 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) ).

18 U.S.C. § 1959(a) prohibits committing or conspiring to commit certain violent crimes, including murder and assault with a dangerous weapon, "for the purpose of gaining entrance to or maintaining or increasing [one’s] position in an enterprise engaged in racketeering activity ...." 18 U.S.C. § 1959(a). To establish a VICAR violation, therefore, the government must show:

(1) that the Organization was a RICO enterprise, (2) that the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.

United States v. Concepcion , 983 F.2d 369, 381 (2d Cir. 1992) ; see also United States v. Fiel , 35 F.3d 997, 1003 (4th Cir. 1994). Frazier and Odum argue that the government failed to establish several of these prongs.

A.

Odum first argues that there is insufficient evidence that PMC is an enterprise because the government did not show that the purpose of the club was to commit crimes. Such a purpose, however, is not required.³ VICAR defines "enterprise" as including "any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce."⁴ 18 U.S.C. § 1959(b)(2). Here, the government alleged an association-in-fact enterprise, which 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, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

At trial, the government produced evidence that PMC’s purpose was to preserve 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 dominant motorcycle club. They also presented evidence that PMC had the purpose of enhancing its members’ money-making activities by showing that Phantoms assisted each other in stealing and trafficking motorcycles. The required relationships were shown by testimony regarding PMC’s by-laws, its hierarchical chain of command, and the importance of PMC symbols, primarily members’ rags. Finally, in addition to testimony from multiple witnesses who had been members of PMC for several years, the government introduced evidence that PMC was founded in 1968, satisfying longevity. Based on all of this evidence, a rational juror could conclude that PMC was an association-in-fact enterprise.

Frazier also argues that the "enterprise" definition was not satisfied because the government did not prove that his assault on the Zulus affected interstate commerce. The government, however, does not have to prove that his particular assault affected interstate commerce. To meet the VICAR "affecting interstate commerce" requirement, it is only necessary that the enterprise as a whole engaged in interstate commerce or that its activity affected interstate commerce. See United States v. Riddle , 249 F.3d 529, 538 (6th Cir. 2001) (RICO); United States v. Qaoud , 777 F.2d 1105, 1116 (6th Cir. 1985) (RICO). Furthermore, if an enterprise engages in economic activity, then even a de minimis connection to interstate commerce is sufficient to meet the interstate prong of VICAR. Waucaush v. United States , 380 F.3d 251, 255–56 (6th Cir. 2004) (holding wholly intrastate, noneconomic activity must have a significant effect on interstate...