United States v. Perry

• Citation: 35 F.4th 293
• Decision Date: 12 May 2022
• Docket Number: 17-30610,C/w No. 17-30611
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Jasmine PERRY, Defendant—Appellant, United States of America, Plaintiff—Appellee, v. Leroy Price, Alonzo Peters; Curtis Neville; Solomon Doyle; Damian Barnes; Ashton Price; McCoy Walker; Terrioues Owney; Evans Lewis, Defendants—Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

35 F.4th 293

UNITED STATES of America, Plaintiff—Appellee,

v.Jasmine PERRY, Defendant—Appellant,United States of America, Plaintiff—Appellee,

v.Leroy Price, Alonzo Peters; Curtis Neville; Solomon Doyle; Damian Barnes; Ashton Price; McCoy Walker; Terrioues Owney; Evans Lewis, Defendants—Appellants.

No. 17-30610

C/w No. 17-30611

United States Court of Appeals, Fifth Circuit.

FILED May 12, 2022

Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Jeffrey Ryan McLaren, Myles Drew Ranier, Assistant U.S. Attorneys, Kyle Daly, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee United States of America.

Sarah Lynn Ottinger, Esq., New Orleans, LA, for Defendant-Appellant Jasmine Perry.

Graham Leaming Bosworth, New Orleans, LA, for Plaintiff-Appellant Ashton Price.

John R. Guenard, Jones Walker, L.L.P., New Orleans, LA, for Defendant-Appellant Leroy Price.

Nisha Sandhu, Covington, LA, for Defendant-Appellant Alonzo Peters.

Michael Gilbert Raspanti, Metairie, LA, for Defendant-Appellant Curtis Neville.

Arthur A. Lemann, III, Esq., Senior Counsel, Arthur A. Lemann, III & Associates, Incorporated, New Orleans, LA, for Defendant-Appellant Solomon Doyle.

Amy Lee McIntire, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant-Appellant Damian Barnes.

Autumn Alycia Town, Law Office of Autumn Town, New Orleans, LA, for Defendant-Appellant McCoy Walker.

Mark David Plaisance, Esq., Prairieville, LA, for Defendant-Appellant Terrioues Owney.

William Sothern, Esq., New Orleans, LA, for Defendant-Appellant Evans Lewis.

Before Jones, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

[35 F.4th 314]

This criminal appeal arises out of a nearly six-week long trial involving ten co-defendants, all of whom are now before this Court. Defendants Jasmine Perry, Leroy Price, Alonzo Peters, Curtis Neville, Solomon Doyle, Damian Barnes, Ashton Price, McCoy Walker, Terrioues Owney, and Evans Lewis appeal their convictions for numerous crimes related to their participation in the "39ers." We AFFIRM their convictions in part and VACATE in part.

I. Factual Background

In April 2016, a federal grand jury returned a 47-count, superseding indictment against defendants, charging them with various crimes including violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), drug¹ and gun conspiracies, violations of the Violent Crimes in Aid of Racketeering Act ("VICAR"), and firearms charges. The case proceeded to a jury trial that lasted 28 days. At trial, the Government sought to prove that each defendant was a member of the "39ers": a criminal gang made up of members from groups in New Orleans' Third and Ninth Wards. The two groups entered into an alliance of sorts, in order to sell drugs in both areas. The Government argued on appeal that the purpose of the 39ers was to sell drugs while protecting its members, supplies and territory.

Five members of the "39ers" pleaded guilty and cooperated, testifying for the Government at trial: Darryl Franklin, Tyrone Knockum, Gregory Stewart, Washington McCaskill, and Rico Jackson. Through testimony from these cooperators, the Government sought to prove that the 39ers was an enterprise and not merely a loose association of people, that the 39ers engaged in drug-trafficking together, and that they shared a gun conspiracy. As relevant to this appeal, at trial the prosecution focused on nine incidents: (1) the murder of Kendall Faibvre and the shooting of Jasmine Jones on February 22, 2010; (2) the murder of Lester Green and the shooting of Jamal Smith on May 19, 2010; (3) the murder of Donald Daniels on May 27, 2010; (4) the murder of Elton Fields on October 11, 2010; (5) the murders of Jerome Hampton and Renetta Lowe on December 20, 2010; (6) the murder of Littlejohn Haynes on February 20, 2011; (7) the assaults of Albert Hardy, Kelvin Baham, and Carrie Henry on May 22, 2011; (8) the murder of Gregory Keys and the shooting of Kendrick Smothers on May 24, 2011; and (9) the murder of Michael Marshall on September 14, 2011.

[35 F.4th 315]

Evidence introduced by the prosecution at trial included expert testimony on ballistics, testimony from law enforcement, and Title III calls. In addition, two music videos and one song were played.

Jury deliberations began on day 25 of the trial. The verdict, returned on day 28, resulted in the following convictions:

1. Ashton Price was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, and the Count 3 firearms conspiracy. He was also convicted on counts involving the deaths and assaults of Kendall Faibvre, Jasmine Jones, and Michael Marshall; however, he was found not guilty on counts associated with the deaths of Terrance Dennis, Anthony Charles Brown, Jr., and Rayshon Jones.

2. Leroy Price was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, the Count 3 firearms conspiracy, and the murders of Lester Green, Jamal Smith, Donald Daniels, Elton Fields, and Michael Marshall; however, he was found not guilty of causing death through the use of a firearm for each of those murders.

3. Alonzo Peters was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, and the Count 3 firearms conspiracy; however, he was found not guilty on all other charged counts.

4. Jasmine Perry was found guilty of the Count 1 RICO conspiracy, the Count 3 firearms conspiracy, and the murders of Kendall Faibvre and Gregory Keys. He was also found guilty of assault with a dangerous weapon in aid of racketeering as to Jasmine Jones, Albert Hardy, Kevin Baham, Carrie Henry, and Kendrick Smothers. Perry was found not guilty of charges relating to the death of Littlejohn Haynes, Terrance Dennis, and Anthony Charles Brown, Jr.

5. McCoy Walker was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, and the Count 3 firearms conspiracy; he was also found guilty of charges associated with the murders of Lester Green, Jerome Hampton, and Renetta Lowe, as well as the assault of Jamal Smith. He was found not guilty of charges associated with the assault of Elton Williams, Quiniece Noble, and the use of a firearm in the death of Lester Green and assault of Jamal Smith.

6. Terrioues Owney was found guilty of the Count 1 RICO conspiracy and the Count 3 firearms conspiracy, as well as counts associated with the murder of Lester Green, Donald Daniels, Elton Fields, Jerome Hampton and Renetta Lowe. He was also found guilty of the assault of Jamal Smith.

7. Evans Lewis was found guilty of the Count 1 RICO conspiracy and the murder of Littlejohn Haynes. He was found not guilty of charges relating to the deaths of Anthony Charles Brown, Jr. and Lester Green, and the assault of Jamal Smith.

8. Curtis Neville was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, and the Count 3 firearms conspiracy, as well as counts associated with the murder of Littlejohn Haynes and the assaults of Albert Hardy, Kelvin Baham, and Carrie Henry. He was also found guilty of possession with the intent to distribute heroin, and possession of a firearm in furtherance of a drug trafficking crime.

[35 F.4th 316]

9. Solomon Doyle was found guilty only of the Count 1 RICO conspiracy. He was found not guilty of the Count 3 firearms conspiracy, as well as counts associated with the murder of Littlejohn Haynes.

10. Damian Barnes was found guilty of the Count 1 RICO conspiracy, the Count 2 drug conspiracy, and the Count 3 firearms conspiracy. He was found not guilty of counts associated with the murder of Floyd Moore.

After trial, all defendants moved for acquittal or a new trial, and they supplemented their motions after a letter came to light in which cooperating witness Washington McCaskill characterized "our Federal Case" as "all made up lies." The district court denied all motions, and sentenced defendants. All defendants but Doyle and Barnes received life sentences. They timely noticed their appeals.

II. Discussion

Defendants raise numerous arguments for reversing their convictions. We analyze each of their main arguments in turn.

A. Sufficiency of Evidence²

Eight defendants argue before us that there was insufficient evidence to support their convictions. All defendants moved for judgment of acquittal both at trial and post-trial. Accordingly, we review their claims de novo , giving "substantial deference to the jury verdict." United States v. Suarez , 879 F.3d 626, 630 (5th Cir. 2018) (citation omitted). Under this standard:

We search the record for evidence supporting the convictions beyond a reasonable doubt, and review the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the jury. In other words, a defendant seeking reversal on the basis of insufficient evidence swims upstream.

United States v. Chapman , 851 F.3d 363, 376 (5th Cir. 2017) (cleaned up).

1. Credibility of Cooperating Witnesses

A threshold issue for some of the sufficiency challenges raised by several defendants involves the credibility, or lack thereof, of cooperating witnesses. Defendants Leroy Price, Walker, Owney, and Perry all spend portions of their briefs arguing that that the cooperating witnesses were not credible and that there was insufficient evidence to support their convictions outside of the cooperating witness testimony. For example, Owney's brief contends that:

Owney was indicted for four murders and one assault. For each of these criminal acts, one of the unindicted, immunized co-conspirators was responsible and so admitted.... A complete review of the record demonstrates that other than the testimony of the government's witnesses, the government has no evidence to prove beyond a reasonable doubt that Owney committed the alleged offenses.

The sufficiency challenges raised by defendants that depend only on challenges to the credibility of cooperating witnesses include: (1) the murder of Lester Green and the shooting of Jamal Smith in May of 2010; (...