United States v. Simmons

Decision Date28 May 2021
Docket Number No. 18-4876, No. 18-4877,No. 18-4875, No. 19-4345, No. 19-4287, No. 19-4269,18-4875
Parties UNITED STATES of America, Plaintiff – Appellant, v. Antonio SIMMONS, a/k/a Murdock, Doc, Defendant – Appellee. United States of America, Plaintiff – Appellant, v. Nathaniel Tyree Mitchell, a/k/a Savage, Defendant – Appellee. United States of America, Plaintiff – Appellant, v. Malek Lassiter, a/k/a Leeko, Defendant – Appellee. United States of America, Plaintiff – Appellee, v. Nathaniel Tyree Mitchell, a/k/a Savage, Defendant – Appellant. United States of America, Plaintiff – Appellee, v. Malek Lassiter, a/k/a Leeko, Defendant – Appellant. United States of America, Plaintiff – Appellee, v. Antonio Simmons, a/k/a Murdock, a/k/a Doc, Defendant – Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Teresa Ann Wallbaum, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant/Cross-Appellee. Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia; Laura Pellatiro Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellees/Cross-Appellant. ON BRIEF: Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, Alexandria, Virginia, Andrew Bosse, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia for Appellant/Cross-Appellee. Maureen Leigh White, Richmond, Virginia, for Appellee/Cross-Appellant Nathaniel Mitchell.

Before AGEE, WYNN and RICHARDSON, Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Wynn joined. Judge Richardson wrote an opinion concurring in part and concurring in the judgment.

AGEE, Circuit Judge:

Antonio Simmons, Nathaniel Mitchell, and Malek Lassiter (collectively, "Defendants") were charged in a thirty-eight count Second Superseding Indictment ("SSI"). They were alleged to be members of a Hampton Roads, Virginia line of the Nine Trey Gangsters ("Nine Trey"), an east coast set of the United Blood Nation.

The SSI alleged that Defendants, along with Anthony Foye and Alvaughn Davis,1 conspired to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) ; committed multiple violations of the Violent Crimes in Aid of Racketeering ("VICAR") statute, 18 U.S.C. § 1959 ; and committed multiple violations of 18 U.S.C. § 924(c), for using, brandishing, and/or possessing a firearm during the commission of a crime of violence. After a seven-week jury trial that commenced on February 6, 2018, a jury convicted Defendants of thirty-seven counts charged in the SSI.2 One of those offenses, Count 30, alleged a violation of 18 U.S.C. § 924(c), with the predicate "crime of violence" being what the Government characterizes as an "aggravated" form of a RICO conspiracy, the charge alleged in Count One. After trial, Defendants moved to set aside the verdict as to Count 30 and the district court granted that motion.

Ultimately, Simmons received three consecutive life sentences, plus a fourth consecutive sentence of forty years’ imprisonment; Mitchell received five consecutive life sentences, plus a sixth consecutive sentence of fifty years’ imprisonment; and Lassiter received thirty-five years’ imprisonment. The Government appeals the decision to set aside the verdict as to Count 30. Defendants have cross-appealed, challenging two of the district court's evidentiary rulings at trial, three of its jury instructions, and the sufficiency of the evidence underlying a host of their convictions.

As explained below, we agree with the district court that a RICO conspiracy, even when denominated as "aggravated," does not categorically qualify as a "crime of violence." As to Defendants’ cross-appeals, we find merit in two of their contentions. Specifically, we first hold that the district court constructively amended Counts 8, 15, 18, 27, and 29 by instructing the jury on the elements of a state law predicate offense not alleged in the SSI. Second, we hold that the evidence was insufficient to support their convictions on one of the VICAR attempted murder offenses, which also requires reversing their convictions for the related § 924(c) offense. Accordingly, the district court's judgment as to each Defendant is affirmed in part, reversed in part, and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

I.
A.

Founded in 1993, Nine Trey was the "first of [the] original Eastside set[s]" of the Bloods. J.A. 1856, 3998. Nine Trey required its members to act within their "line," or chain of command, establishing a hierarchy akin to the military. A new member could join Nine Trey by either getting "beat into" the gang—i.e., getting jumped by members—or by "putting in work"—e.g., selling drugs, committing acts of violence, or otherwise earning money for the gang. J.A. 1629–30, 4003–04. Members generally moved up in rank based on their reputation for violence, their loyalty to the gang, and their ability to recruit new members and make money. Robberies and drug trafficking were two of the most common sources of funds for Nine Trey.

Adhering to the line's chain of command was "[v]ery important" to Nine Trey, and transgressors could be disciplined for failing to do so. J.A. 1684–85. Punishments ranged in severity based on the offense. Certain offenses––like snitching––called for the "death penalty." J.A. 1640–41. The "death penalty" for snitching applied even if the transgressor was not a Nine Trey member.

Respect was another important Nine Trey tenet. If a Nine Trey member was ever disrespected by another Nine Trey member, a rival gang member, or someone from the general public, he was expected to "handle" it, as disrespect to one Nine Trey member was viewed as disrespect to the entire gang. J.A. 1675, 1894–95. Any showing of disrespect could have been a "death sentence." J.A. 1896. If the member could not get to the person that disrespected him, he would go after "the closest one to ‘em.," i.e., their "[m]other, wife, child, sister, aunt, brother." J.A. 1635.

In November and December 2015, Simmons, Mitchell, Foye, and Davis were well-established members of a Hampton Roads-based line of Nine Trey. Simmons held the rank of "Low," an upper-level management position in Nine Trey, "managing the daily or monthly activities" of his subordinates. J.A. 1862–63, 2973, 6077.3 In addition to his managerial duties, Simmons engaged in narcotics trafficking. Foye was a "Three-Star General" in Simmons’ line, who looked up to Simmons as a father figure. J.A. 2978, 6079–80. Davis was also a "Three-Star General" who associated with Simmons’ line during those two months, and Mitchell was a "One-Star General" in Simmons’ line. By December 2015, based on their propensity for violence, Simmons had designated Foye, Mitchell, and Davis as his "cleanup crew," or his chosen squad of "shooters." J.A. 4066–67. Lassiter, Foye's cousin, had not officially become a Nine Trey member by the beginning of December 2015, but he was looking to join the gang.

B.

Between December 10 and December 27, 2015, Defendants (along with Foye and Davis) committed a spree of robberies, murders, and attempted murders in the Hampton Roads and Virginia Beach area that left six people dead and three more wounded. The Government pointed to two catalysts that sparked this crime spree.

In the fall of 2015, Simmons received a disciplinary action from his Nine Trey superior, "Dido." Simmons and Dido had attempted to smuggle marijuana into a state jail. The deal went awry, however, and Dido lost all of his investment for which he held Simmons personally responsible. Dido disciplined Simmons for this debt by putting him "on freeze." For Nine Trey purposes, anyone put "on freeze" was to focus solely on "rectify[ing] whatever reason you got put on freeze." J.A. 4055. Thus, Simmons’ desire to repay Dido and maintain good standing in Nine Trey motivated him to call on his "cleanup crew"––Foye, Mitchell, and Davis––to help him get the cash to pay his debt.

At that same time, Mitchell was looking to increase his notoriety within the gang in order to rise in its ranks. Mitchell knew that do so, he had to "put in work." By December 2015, Foye had a well-known reputation for violence. In fact, Foye was known for "going around ... shooting people for nothing and ... killing people." J.A. 4155. Mitchell wanted to prove that he was "just as much of a gangster as [Foye]." Id.

1.

By late November 2015, Foye had growing concerns that one of his childhood friends and fellow Nine Trey members, Al-Tariq Tynes, had become a snitch. Foye began texting multiple individuals discussing harming and robbing Tynes both because he was a snitch and because Tynes was rumored to have money.

On December 10, 2015, at 7:28 p.m.––with Simmons still on "freeze"–– Foye was hanging out alone with Tynes. Foye texted Davis, "Don't call me, but I need you on deck, bro." J.A. 4080. Foye then texted Simmons four minutes later, saying, "20 minutes ima kall u dad." J.A. 5956. One minute later, at 7:34 p.m., Foye followed up with Simmons, "Im with the meal so its guarenteed." J.A. 5956.4 In Nine Trey's coded language, food references like "the meal" or "being on the plate" signified that someone was a target for violence. E.g. , J.A. 1888–90. Simmons replied, "Faxtz," which signaled confirmation. J.A. 1727, 5956.

Shortly thereafter, Foye called Davis for help. J.A. 4081. When Davis arrived, he saw Foye in Tynes’ gold Lexus, with Tynes dead in the passenger seat. Foye told Davis that he shot Tynes in the head. Just hours later, at 2:56 a.m., Simmons texted Foye, "Bro I've been up all night i need the money by 11 this morning smh or we dead bro." J.A. 5957. In a subsequent...

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