UNITED STATES OF AMERICA v. DON CHRISTOPHER WHITE JR RAHEEM JACQUES HOUSTON DEAGUISE RAMONT HALL DEVELL CARL LEWIS SIMMEON TERRELL HALL (2024)

ORDER DENYING POST-TRIAL MOTIONS

Following nearly three weeks of evidence, a jury returned guilty verdicts against all five Defendants on racketeering conspiracy charges, as well as guilty verdicts on other charges against four of the five Defendants individually. Defendants move for judgment of acquittal or new trial based on sufficiency of the evidence and other grounds, with their arguments revolving largely around the Government's alleged failure to prove an “enterprise” under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Court concludes that the Government presented sufficient evidence of an “enterprise” to sustain the jury's verdicts. It further concludes that Defendants have not raised any other meritorious grounds for overturning the verdicts. The motions for judgment of acquittal and/or new trial are therefore DENIED.

I. PROCEDURAL HISTORY.

On February 6, 2024, a grand jury in the Southern District of Iowa returned a ten-count Second Superseding Indictment charging fourteen defendants with racketeering conspiracy, as well as a handful of individual drug and firearm offenses.¹ Eleven of the fourteen moved to sever their trials. The Court concluded there was no legal basis under the Federal Rules of Criminal Procedure to order severance.² Nonetheless, the Court recognized that severance might be necessary to address logistical challenges associated with the case if enough people intended to go to trial.³ After it became clear that almost all of the people charged indeed intended to go to trial, the Court severed the case into three separate trials, with the first trial commencing on April 29, 2024, against Defendants Don Christopher White, Jr., Raheem Jacques Houston, Deaguise Ramont Hall, Devell Carl Lewis, and Simmeon Terrell Hall.⁴

Trial lasted thirteen days. At the close of the Government's case, each of the five Defendants moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29, largely on the basis that the Government had not proven the existence of an “enterprise” as required to sustain a conviction under 18 U.S.C. § 1962(d).⁵ The Court denied the motions for judgment of acquittal in all respects except to remove “acts involving robbery” from the list of alleged racketeering acts for the jury to consider in deciding whether the Government proved the elements of the racketeering conspiracy.⁶ The jury returned guilty verdicts against all five Defendants on the racketeering conspiracy charge (Count 1).⁷ The jury concluded, among other things, that the Government proved an agreement to commit multiple acts of racketeering involving murder and multiple acts of racketeering involving drug distribution.⁸ The jury also returned guilty verdicts on all non-conspiracy counts, including: Felon in Possession of Firearms against Houston (Count 2 ⁹ ); Felon in Possession of Ammunition against White (Count 3); Possession with Intent to Distribute a Controlled Substance (Cocaine Base) against Deaguise Hall (Count 4); and Possession with Intent to Distribute a Controlled Substance (Cocaine Base) against Simmeon Hall (Count 5). (Id.) (There were no counts against Lewis other than racketeering conspiracy.)

II. FACTUAL OVERVIEW.

The Government presented evidence of a loose affiliation of (primarily, if not exclusively) men who grew up in or near the Century Woods apartment complex on Fifth Street in Rock Island, Illinois.¹⁰ The complex is in a low-income neighborhood and was previously called “Arsenal Courts.”¹¹ According to Government witness Darrell Holloway, the group originally had no name and “was just people hanging with each other. Everybody grew up together.”¹² At various times, the group used the names “Arsenal Courts Posse,” “Fifth Street,” “Fifth Street Mafia,” “Zone Fifth,” or “Rock Town Money Gang (or Getters).”¹³ In Holloway's words, “[i]t's all the same thing.”¹⁴

The group had no hierarchy, no formal rules or processes for entering or exiting, no defined roles, and virtually no other structure; instead, it was basically just a group of people who were loyal to each other and wanted respect.¹⁵ One cooperating witness, Christopher Pullman, insisted it was not even a “gang”¹⁶ despite the Government's repeated use of that word. Nonetheless, the evidence showed that these men repeatedly and consistently expressed loyalty to one another in social media posts and elsewhere ¹⁷ and subscribed to at least a few unwritten rules, including that members should refuse to cooperate with law enforcement ¹⁸ and be prepared to use violence against opposition groups.¹⁹ Members of the group also engaged in coordinated activity, including: using hand signs or tattoos to indicate their affiliation with one another;²⁰ honoring deceased members of the group through tattoos, social media posts, and events;²¹ providing financial assistance during and after another member's incarceration;²² disrespecting “opposition” groups in various ways, such as saying “Fuck ” (with the blank filled in with the name of a dead person from the opposition group) or turning the opposing group's hand signals upside-down;²³ and working together to sell drugs or commit other crimes, including acts of violence.²⁴ Members of the group were often seen congregating together in a handful of places in Rock Island, including a neighborhood store and homes and garages.²⁵

The Government presented evidence of more than a dozen shootings or shots-fired incidents that it attributed to Fifth Street members. In some instances, the Government offered essentially no evidence connecting the shooting to Fifth Street other than that a Fifth Street member allegedly committed the act; on other occasions, however, the direct and circumstantial evidence showed a closer tie between the shooting and a common purpose of the group. For example, the following timeline is an incomplete but illustrative summary of events that a reasonable juror could have connected to Fifth Street as an “enterprise”:

- April 19, 2006: fatal shooting of alleged Fifth Street associate Andrell Hearn in Rock Island by Jermill Miller, using a gun supplied by Cainnan Gates, who was allegedly a member of rival group Twelfth Street (a/k/a “Savage Life”);26

- August 19, 2006: fatal shooting of Vincelina Howard, whose brother, Vincent Howard, was allegedly associated with Savage Life, at a party in Davenport;27

- May 7, 2011: shooting incident at the Col Ballroom in Davenport between alleged Fifth Street and Savage Life members, resulting in the death of alleged Fifth Street member Michael Williams and gunshot wounds to Fifth Street member Houston, alleged Fifth Street member Aaron Ellis, and alleged Savage Life member Vincent Howard;28

- March 31, 2013: shooting at the Chorus Line gentlemen's club in Davenport involving alleged Savage Life members Vincent Howard and DeLandres Thompson and alleged Fifth Street member Demarko Williams;29

- October 2013: shooting of alleged Savage Life member Demetrius Allen at his home in Rock Island 30 by people shouting “Fuck Dae Dae”31 and “Fuck Savage Life.”32 An earlier shooting had occurred at the same home by people again yelling “Fuck Dae Dae.”33 Allen and his brother, Lewis Woodson, made music prior to Allen's death containing the words “Fuck Kion,”34 ostensibly to show disrespect toward Fifth Street;

- September 2, 2015: fatal shooting of Lewis Woodson on Brady Street in Davenport, Iowa, by alleged Fifth Street member Juwan Johnson, amid an ongoing feud between Savage Life and Fifth Street;35

- January 3, 2020: shots-fired incident in or near the parking lot of the Quad City Times building in Davenport, with one of the firearms in the incident later connected to other shootings 36;

- May 23, 2020: shootings of Timon Mayfield (fatal) and Dante Tate (non-fatal) in a Savage Life-affiliated neighborhood in Rock Island after a dispute during a dice game involving at least one alleged Fifth Street associate, Rasheem Bogan, as well as someone named Torrie Roberts, whose affiliations are unclear;37

- May 24 or 25, 2020: shots fired at two events in the same Savage Life-affiliated neighborhood where Mayfield was killed, including a memorial event in his honor and a neighborhood barbecue;38

- May 30, 2020: another shots-fired incident in the same neighborhood where Mayfield was killed;39

- May 31, 2020: another shots-fired incident in the same neighborhood.40

The Government's strongest evidence regarding the structure of the enterprise and the relationship between the enterprise and criminal acts (including, especially, acts of violence) revolved around events in late May 2020, culminating with two separate shootings on the night of May 31/June 1, 2020. According to Christopher Pullman, Fifth Street members were in a dispute during that time with members of the Gay family, which caused all five Defendants and others to carry weapons for protection.⁴¹ In the days leading up to May 31, Defendants were in frequent communication with one another about their collective and individual safety, as illustrated by a long message chain between all five Defendants and others,⁴² text messages from Simmeon Hall encouraging others to “[p]ay attention to all movements,”⁴³ and a variety of other phone and social media activity.⁴⁴ In some of those same communications—which occurred against the backdrop of civil unrest in the aftermath of George Floyd's death—Defendants and others also plotted criminal acts, including burglary. These communications culminated in the following activities, starting in the afternoon of May 31:

- Defendants and others discussed burglarizing one or more businesses in Davenport, ultimately settling on a business called Necker's Jewelers that was located in a strip mall in Davenport;45

- Pullman, at least four Defendants, and others met at a cemetery to carry out their plans for burglarizing Necker's, starting with: (a) removing license plates from their vehicles to make it more difficult for the vehicles to be identified; and (b) setting a house on fire to distract the police;46

- the same or similar group of people—now including at least four of the five Defendants 47—met at Necker's with masks and weapons for the purpose of breaking in and stealing jewelry;48

- when the group's plans at Necker's were interrupted by the unexpected presence of a person (wrongly) perceived to be affiliated with the Howards/Savage Life, several members of the group ran around the building together and began firing shots at that person—later identified as Anthony Gardner—before returning to their vehicles and driving away;49

- some of the people who had been at Necker's, including all five Defendants, regrouped and began driving around Davenport in a coordinated fashion in three vehicles that one witness described as “like a centipede,” drawing law enforcement attention;50

- while being watched by law enforcement, the three vehicles stopped in an alley between 14th and 15th Streets in Davenport, near Myrtle and Vine streets, and went “dark” (turned the lights off);51

- an unmarked pickup truck containing three law enforcement officers drove down the alley to try to learn more about what the three vehicles and their occupants were doing;52

- Defendants and others in the alley mistakenly perceived the unmarked truck as being affiliated with a rival group,53 prompting several people to begin firing shots. Ultimately, more than twenty shots were fired at the truck, including: (a) one that hit the driver, Detective Scott Lansing, in the leg; (b) another that would have hit Lansing except that it was fortuitously blocked by his service revolver on his hip; (c) two or three that hit the driver's side headrest; and (d) close to a dozen others that caused heavy damage to the vehicle;54

- one of the officers—Greg Behning—returned fire and struck and killed one of the shooters in the alley, Marquis Tousant;55

- six members of the group in the alley—including Michael Cross, LaShawn Hensley, and every Defendant except Simmeon Hall—jumped into a black Pontiac and fled the alley, leading officers on a high-speed chase through a residential neighborhood and stopping only after being forced off the road onto someone's lawn.56

In later searches of the black Pontiac and its occupants, officers found multiple firearms, ammunition, a drum magazine, ski masks, gloves, phones, keys to a different vehicle in the alley where the shooting occurred, marijuana, and ecstasy.⁵⁷ Most or all of the occupants of the black Pontiac had been at Necker's earlier that night, as had the decedent, Marquis Tousant.⁵⁸ Simmeon Hall, who did not flee in the black Pontiac, was not apprehended that night, but later cell phone evidence showed that he repeatedly—and unsuccessfully—made calls to the people in the black Pontiac shortly after the shootout in the alley.⁵⁹

The Government presented evidence of additional shootings in the months and years after June 1, 2020, including: (a) the fatal shooting of alleged Savage Life member DeLandres Thompson on July 5, 2020, by Deandre Hensley and others associated with Fifth Street during a shootout on 3rd Street in Davenport;⁶⁰ and (b) a mistaken identity shooting on the Centennial Bridge on December 8, 2021, by a shooter who was riding in the passenger seat of a Dodge Durango closely linked to Don White.⁶¹ These and other relevant facts will be discussed in context, below.

III. LEGAL STANDARDS AND BACKGROUND.

Pursuant to Fed. R. Crim. P. 29(a), the Court must grant a motion for judgment of acquittal if “the evidence is insufficient to sustain a conviction.” “A motion for judgment of acquittal should be granted only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Gonzalez, 826 F.3d 1122, 1126 (8th Cir. 2016). The Court must view the evidence in the light most favorable to the verdict and accept all reasonable inferences supported by the evidence. Id. The Court may not assess the credibility of witnesses. See United States v. Lemoine, 104 F.4th 679, 684 (8th Cir. 2024). The Rule 29(a) standard “is very strict, and the jury's verdict is not to be lightly overturned.” United States v. Wright, 993 F.3d 1054, 1065 (8th Cir. 2021).

The Court has more discretion when ruling on a motion for new trial and may grant such a motion “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). All the same, “[m]otions for new trial are generally disfavored and will be granted only where a serious miscarriage of justice may have occurred.” United States v. Rice, 449 F.3d 887, 893 (8th Cir. 2006) (cleaned up). The Court should exercise its authority to grant a new trial “sparingly and with caution.” United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009).

IV. LEGAL ANALYSIS.

A. The Court Did Not Violate Defendants'Sixth Amendment Rights by Livestreaming Voir Dire to an Auxiliary Courtroom.

As a threshold matter, Deaguise Hall argues that the Court violated his Sixth Amendment rights by livestreaming voir dire to an auxiliary courtroom for members of the general public to observe, rather than having members of the public in the trial courtroom.⁶² Defendants Lewis,⁶³ Houston,⁶⁴ and White ⁶⁵ join this argument. Defendants do not say—and the Court is unaware—whether any members of the public actually were in the courthouse during voir dire or wanted to sit in the trial courtroom.

“The Sixth Amendment guarantees criminal defendants ‘the right to a ․ public trial.’ ” United States v. Mendonca, 88 F.4th 144, 151 (2d Cir. 2023). The right to public trial extends to voir dire. See generally Presley v. Georgia, 558 U.S. 209 (2010). Before a trial court may completely exclude the public from a criminal trial, four requirements must be satisfied: (1) the party seeking to close the proceeding must “advance an overriding interest that is likely to be prejudiced”; (2) the closure “must be no broader than necessary to protect that interest”; (3) the court must consider “reasonable alternatives” to closure; and (4) the court must make adequate findings to support the closure. Waller v. Georgia, 467 U.S. 39, 48 (1984). By contrast, “where the trial court orders only a partial closure, there need only be a showing of a ‘substantial reason’ for the partial closure, as opposed to Waller's ‘overriding interest’ requirement.” United States v. Petters, 663 F.3d 375, 383 (8th Cir. 2011). “The justification for this lower, substantial reason standard is that a partial closure does not implicate the same secrecy and fairness concerns that a total closure does.” United States v. Thompson, 713 F.3d 388, 395 (8th Cir. 2013) (cleaned up) (quoting Petters, 663 F.3d at 383).

It is unclear whether the Eighth Circuit would consider the livestreaming of voir dire to an auxiliary courtroom to be a courtroom “closure” for Sixth Amendment purposes, as the livestream gave members of the public and press the opportunity to “attend the trial and to report what they have observed.” United States v. Boyle, 700 F.3d 1138, 1144 (8th Cir. 2012) (expressing doubts as to whether the district court's decision not to publish certain exhibits to monitors in the public gallery constituted a “closure”). Other courts have, however, treated livestreaming as a “partial closure” for which the “substantial reason” standard applies. See United States v. Ansari, 48 F.4th 393, 401 n.7 (5th Cir. 2022) (“Because any member of the public could fully access the trial by livestream in an overflow room down the hall, we deem the closure in this case a partial one and analyze the issue accordingly.”); United States v. Babichenko, 508 F. Supp. 3d 774, 778–79 (D. Idaho 2020) (treating livestreaming as a “partial closure”). In an abundance of caution, the Court will assume the decision to livestream voir dire proceedings was a “partial closure” for which the Waller factors apply under the “substantial reason” standard.

The first Waller factor (as modified for partial closures) requires the Court to identify a “substantial reason” for having members of the public watch voir dire from the auxiliary courtroom. Here, there were three substantial reasons: (i) the need to find space in the courtroom for all five Defendants and their counsel; (ii) security concerns; and (iii) the Court's desire to ensure the empanelment of a fair and impartial jury.

As to the first of these reasons, the Court had to modify the defense table to make space for all five Defendants and their respective counsel. This resulted in the defense table being roughly four times longer than normal and extending into a substantial portion of the courtroom's public gallery.⁶⁶ Members of the public obviously could not sit in the portion of the gallery where the defense table encroached, and thus there had to be some limitation on public access to the trial courtroom.

The extension of the defense table into the gallery also created security issues, which are the second substantial reason for livestreaming voir dire to the auxiliary courtroom. Ordinarily, there are at least twenty feet of space in the trial courtroom between a criminal defendant and the nearest member of the public. Here, however, there would have been essentially no space at all if the Court allowed public access to the full gallery (minus the area where the defense table encroached). Members of the public literally would have been sitting next to two Defendants. This would have created an unacceptable security risk given the number of defendants, nature of the alleged conduct—which included extensive allegations of violence spanning more than ten years, flight from law enforcement, and expressions of hostility toward people who cooperate with law enforcement—and the fact that at least one person already had been convicted for obstructing the investigation and prosecution of the case. See United States v. Sinae Cora Lucille Tate, Case No. 3:22-cr-00077 (S.D. Iowa), ECF 62 (imposing 18-month sentence for perjury during grand jury proceedings). In these circumstances, the Court had to create an additional “buffer zone” between the defense table and public seating area. In total, between the direct encroachment of the defense table and the “buffer zone,” at least one-third of the public gallery was off-limits. As the gallery ordinarily has spots for approximately forty to forty-five people, this meant there was only room for, at most, only twenty-five to thirty.

To further complicate things, some of those twenty-five to thirty spots were expected to be occupied by security personnel, members of the defense team, and personnel from the U.S. Attorney's Office. To the best of the Court's recollection—confirmed to some degree in comments made by defense counsel the day after voir dire ⁶⁷ —these people occupied about seven or eight of the open spots, resulting in approximately twenty remaining spots.

This leads to the third substantial reason for livestreaming voir dire to the auxiliary courtroom: the Court's desire to ensure the empanelment of a fair and impartial jury. Prior to trial, Defendants asked the Court to give them additional peremptory strikes beyond the ten that typically would apply in a criminal case.⁶⁸ The Court agreed and gave each Defendant three peremptory strikes, for a collective total of fifteen. To ensure proportionality, the Court also increased the number of Government strikes from six to nine.⁶⁹ In light of the additional strikes, and because the Court feared that an unusually high number of jurors would have unavoidable scheduling conflicts due to the expected three-to-four-week length of trial, the Court called considerably more prospective jurors than normal. In all, the Court expected to have at least sixty prospective jurors in the courtroom, approximately thirty-five of whom would sit in or near the jury box, five of whom would sit in the first row of seats in the public gallery, and the remaining twenty of whom would fill (if not overflow) the remainder of the gallery.⁷⁰ This would leave no room for members of the public.

Returning to the first Waller factor, it is self-evident that the need to ensure adequate space for each Defendant and his counsel is a “substantial reason” for closing off part of the Courtroom's public seating area. Similarly, security concerns are “substantial reasons” for restricting access to the trial courtroom. See Thompson, 713 F.3d at 396 (recognizing that security concerns may warrant partial courtroom closure); Petters, 663 F.3d at 383 (same). Finally, the Court's desire to ensure the empanelment of a fair and impartial jury is also a “substantial reason,” see Morales v. United States, 294 F. Supp. 2d 174, 178 (D. Conn. 2003) (justifying courtroom “closure” during voir dire where presence of spectators would have hindered exercise of peremptory strikes), aff'd, 635 F.3d 39 (2d Cir. 2011), particularly when considered in conjunction with the security concerns. Accordingly, the first Waller factor is satisfied. The Court had several substantial reasons for limiting access to the trial courtroom.

As to the second Waller factor, the partial closure of the courtroom was “no broader than necessary” to address the security and space concerns. At the time of its decision to livestream proceedings to the auxiliary courtroom, the Court believed that, during voir dire, every available spot in the trial courtroom (and then some) would be filled by courthouse staff, government personnel, defense personnel, or prospective jurors. Opening the trial courtroom to the public necessarily would have displaced some of these people, and thus the Court decided to have members of the public sit in the auxiliary courtroom instead. The Court imposed this restriction only during voir dire and only for the reasons stated above; for all other portions of the trial, the public was permitted to sit in the trial courtroom. See Thompson, 713 F.3d at 395–96 (affirming conviction despite partial closure of courtroom because closure applied only during one witness's testimony, with the remainder of the trial fully open). Moreover, even during voir dire, members of the public could see and hear everything through the livestream, thus reinforcing that the partial closure was no broader than necessary. See Ansari, 48 F.4th at 403 (affirming trial court's decision to livestream proceedings to an auxiliary courtroom because it was “reasonable, neutral, and largely trivial”).

The third Waller factor required the Court to consider “reasonable alternatives” to the partial closure of the courtroom. The Court did so. One alternative would have been to limit the number of peremptory strikes to six (Government) and ten (Defense), respectively, which would have reduced the number of prospective jurors in the courtroom. As this alternative could have impaired the parties' ability to ensure a fair and impartial jury, the Court did not believe it was a good idea. Indeed, Defendants themselves wanted the extra peremptory strikes. Similarly, the Court could have called fewer prospective jurors and taken the risk that there would not be many scheduling conflicts. This, too, was not a good idea, as it might have resulted in the Court not being able to empanel a full jury of twelve plus two alternates.

Deaguise Hall argues in his post-trial brief that the Court should have divided the venire pool into panels of fourteen, with only one panel in the courtroom at a time. This would have left space for members of the public in the courtroom. The Court does not recall this possibility being proposed at the time of voir dire, but, even if it had, it would have created more problems than it solved. For example, it would have required the Court to repeat preliminary instructions multiple times, once to each venire panel. This can result in “unintentional differences” from one panel to the next. See Weaver v. Mass., 582 U.S. 286, 297 (2017). Similarly, splitting the voir dire pool into panels would have required the Court and counsel to repeat the same questions and concepts multiple times. Not only would this have slowed the process down substantially, it also would have interfered with counsel's ability to use one prospective juror's experience to make rhetorical points to the remainder of the jury pool. For example, Houston's counsel conducted an effective voir dire of Juror Number 5 regarding his experience of having been wrongfully suspected of committing a crime.⁷¹ Juror Number 5's experience essentially illustrated to the entire pool the dangers of “guilt by association” and the importance of neutral factfinders.⁷² Similarly, Deaguise Hall's counsel's colloquy with Juror Number 25, a former college athlete, showed that you can have a connection with someone (like a teammate) in one capacity without supporting that person in some other capacity.⁷³ Counsel leveraged that colloquy into a question for the entire group jury pool.⁷⁴ These opportunities would not have presented themselves in the same way if Juror Numbers 5 and 25 had been part of smaller venire panels; at most, their comments only would have been shared with one-quarter of the jury pool. This is presumably why no Defendant asked for the jury pool to be divided into panels in the first place.

Moreover, and more generally, Deaguise Hall's post hoc suggestion about dividing the jury pool into panels of fourteen would have changed the entire voir dire process. The Court's typical practice is to conduct voir dire en masse with the first forty members of the jury pool, seated in numerical order from one to forty. The Court asks the first round of questions of these prospective jurors, then counsel is given the opportunity to follow up. The extra prospective jurors are asked to stay in the back of the courtroom and listen carefully to the questions posed to the original group of forty; that way, if any of the first forty must be excused, the replacement is already fully up to speed as to what has transpired. Once questioning is finished, the parties exercise their peremptory strikes while the full group of prospective jurors is in front of them, still seated in numerical order. This makes it easier for counsel to remember which juror is which and to compare jurors to each other than if separate panels are used and counsel must compare one juror who might not be in the courtroom with another juror who also might not be in the courtroom.

In sum, conducting voir dire with prospective jurors en masse benefits the parties by improving efficiency, ensuring consistency, allowing one juror's responses to be used to make rhetorical points to others, making it easier for counsel to exercise peremptory strikes in an effective way, and otherwise helping to ensure the Sixth Amendment right to a fair and impartial jury. Cf. United States v. Ricker, 983 F.3d 987, 994 (8th Cir. 2020) (“The right to a public trial ․ is not absolute and must give way in some cases to other interests essential to the fair administration of justice.” (citation omitted)). These benefits would have been mitigated or lost if, as Deaguise Hall now proposes, the Court had divided the jury pool into separate venire panels of fourteen each. See Morales, 294 F. Supp. 2d at 178 (recognizing that voir dire can be more complicated for attorneys where “the parties' exercise of peremptory strikes would have been hindered by allowing spectators to co-mingle with the prospective jurors”); cf. United States v. Veneno, 107 F.4th 1103, 1114 (10th Cir. 2024) (affirming closure of courtroom where “reorganizing the entire juror seating arrangement ․ would be unreasonable given the context”).

By contrast, dividing the jury pool into panels would have done little, if anything, to advance the goals underlying the right to a public trial. See Ansari, 48 F.4th at 403 (describing the decision to livestream proceedings to an auxiliary courtroom as “largely trivial”). One of the principal concerns underlying the open trial requirement is just that, openness, which “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enter. Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 508 (1984). Here, because of the audio and video livestream to the auxiliary courtroom, members of the public could follow along in real time with everything that happened during voir dire. See Boyle, 700 F.3d at 1144 (“The Constitution's ‘requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.’ ” (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 610 (1978))). Nothing was done in secret. See United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994) (“At the heart of the Supreme Court's right of access analysis is the conviction that the public should have access to information; the Court never has suggested that an open proceeding is only open to those who are able to be bodily present in the courtroom itself.”); Babichenko, 508 F. Supp. 3d at 778–79 (concluding that partial closure was warranted because, inter alia, the trial would be livestreamed to a different courtroom).

Granted, the public trial requirement is also designed, in part, to make sure a defendant is “fairly dealt with and not unjustly condemned, and ․ the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller, 467 U.S. at 46. Here, however, there were “interested spectators” in the public viewing area of the courtroom during voir dire; namely, members of the defense team and employees from the U.S. Attorney's Office. These spectators were wearing non-descript clothing and thus likely would have appeared to be members of the public from the jurors' perspective. Cf. United States v. Williams, 974 F.3d 320, 347 (3d Cir. 2020) (affirming conviction despite complete closure of courtroom during voir dire because, inter alia, the proceedings were observed by members of the venire pool who were not called to the front of the courtroom). Splitting the jury pool into panels of fourteen to allow more interested observers would have created the problems identified above without advancing the Sixth Amendment interests underlying the open trial requirement in any material way. The bottom line is that splitting the jury pool into panels was not a good alternative to livestreaming voir dire to an auxiliary courtroom.

The final Waller factor is that the Court must make adequate findings to support the partial closure of the courtroom. The Court has articulated its findings in various places, including on the record at the final pretrial conference,⁷⁵ a written pretrial ruling,⁷⁶ on the record prior to the commencement of voir dire,⁷⁷ and in this ruling. Based on those findings, and for the reasons stated above, the Court DENIES Defendants' post-trial motions insofar as they seek a new trial based on alleged Sixth Amendment violations.

B. The Court Properly Allowed Christopher Pullman to Testify About Out-of-Court Statements Made by Co-Conspirators Michael Cross and Deandre Hensley.

Houston ⁷⁸ argues that the Court erred by allowing Christopher Pullman to testify about out-of-court statements made by Michael Cross and Deandre Hensley while they were incarcerated with Pullman.⁷⁹ Houston challenges two statements: (i) Cross's statement to Pullman that the shooting in the alley on June 1, 2020, occurred because the shooters mistakenly believed the pickup truck was being driven by the Gays;⁸⁰ and (ii) Hensley's statement to Pullman about the shooting on July 5, 2020, where Hensley and others shot someone affiliated with Savage Life.⁸¹ Houston argues that Cross and Hensley were “simply recounting what happened,” and thus the statements were not made in furtherance of a conspiracy for purposes of Fed. R. Evid. 801(d)(2)(E).⁸²

“The Federal Rules of Evidence deem an out-of-court statement not hearsay if it is offered against the defendant and is a statement of the defendant's coconspirator made in furtherance of the conspiracy.” United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005). “For a statement to be admissible under Rule 801(d)(2)(E), the government must prove by a preponderance of the evidence (1) that a conspiracy existed, (2) that the declarants were co-conspirators of the defendants, and (3) that the statements were made during the course of and in furtherance of the conspiracy.” United States v. Darden, 70 F.3d 1507, 1529 (8th Cir. 1995).

For reasons explained in Subsection G, below, the Court concludes that the Government presented sufficient evidence of a conspiracy to satisfy the first prong of the analysis under Fed. R. Evid. 801(d)(2)(E). The Court further concludes that the Government presented sufficient evidence that Cross and Deandre Hensley were co-conspirators with Defendants, Pullman and others. As to Cross, the Government presented numerous pictures and messages showing him associating with Fifth Street members.⁸³ The evidence further showed that Cross was with all five Defendants and others at Necker's and in the alley on the night of May 31/June 1, 2020, when the shootings of Anthony Gardner and Detective Lansing occurred.⁸⁴ In fact, Cross fled the alley with four of the five Defendants (and one other co-conspirator) and was eventually apprehended in the black Pontiac.⁸⁵

As to Deandre Hensley, Pullman testified that he was a Fifth Street member,⁸⁶ which is close to enough in and of itself to satisfy the co-conspirator prong of Fed. R. Evid. 801(d)(2)(E). The evidence also established other concerted activity between Deandre Hensley and others associated with Fifth Street, including drug-related messages with White in the days leading up to May 31, 2020 and Hensley's presence in a Volkswagen with alleged Fifth Street member, Kylea Cartwright, Jr., on July 12, 2020—one week after the shooting of DeLandres Thompson that was the subject of Hensley's out-of-court statement to Pullman.⁸⁷ Moreover, law enforcement officers found a spent shell casing in the Volkswagen's windshield well that came from a gun linked to two other incidents: (i) a shooting at a barbecue in late May 2020, shortly after Timon Mayfield's death; and, (ii) a shooting at the Quad City Times Building in January 2020.⁸⁸ This is enough to establish by a preponderance of the evidence that Cross and Deandre Hensley were co-conspirators to each other, Pullman, and Defendants for purposes of Fed. R. Evid. 801(d)(2)(E).

Finally, the evidence also sufficiently established that Pullman himself was a member of the conspiracy at the time of the out-of-court statements. Pullman testified that he was a member of Fifth Street both before and after June 2020, including when he was in custody with Cross and (later) Deandre Hensley.⁸⁹ Other evidence backed up Pullman's testimony, including evidence that he was convicted of selling drugs with Devell Lewis and others,⁹⁰ social media posts promoting Fifth Street and referring to Pullman by his nickname, “Dime,”⁹¹ and security video from Necker's showing Pullman on the scene with others in the early morning hours of June 1, 2020.⁹²

The only remaining question is the one Houston focuses most of his attention on: whether the statements by Cross and Deandre Hensley were in furtherance of the conspiracy. The Eighth Circuit interprets “in furtherance of” broadly to include, among other things, statements about past events that are designed to keep co-conspirators informed about problems facing the group. Darden, 70 F.3d at 1529–30. “Efforts to conceal a conspiracy actually further that conspiracy, as do statements of reassurance which serve to maintain trust and cohesiveness, or inform each other of the current status of the conspiracy.” United States v. Mayfield, 909 F.3d 956, 962 (8th Cir. 2018). Likewise, statements which “identify a coconspirator's role in the conspiracy are considered statements made ‘in furtherance’ of the conspiracy.” United States v. Davis, 457 F.3d 817, 825 (8th Cir. 2006).

There are limits to what “in furtherance of” means. For instance, statements that “simply inform[ ] the listener of the declarant's criminal activities” or are “made simply to impress the listener” are not in furtherance of the conspiracy. United States v. Ragland, 555 F.3d 706, 713 (8th Cir. 2009). In addition, co-conspirator statements to law enforcement are typically not admissible unless they are “intended to allow the conspiracy to continue, for example, by misleading law enforcers.” United States v. Alonzo, 991 F.2d 1422, 1426 (8th Cir. 1993). Also, statements must be made “during the course of” the conspiracy. Darden, 70 F.3d at 1529. Statements made after the conspiracy ends are not admissible. See United States v. Alcorta, 853 F.3d 1123, 1139 (10th Cir. 2017). “But ‘a conspiracy does not end simply because one conspirator has been arrested’ and ‘a conspirator's arrest or incarceration by itself is insufficient to constitute his withdrawal from the conspiracy.’ ” Id. (quoting United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997)); see also United States v. Leoner-Aguirre, 939 F.3d 310, 318 (1st Cir. 2019) (“We flatly reject as a matter of law the argument that [defendant's] arrest and imprisonment necessarily constituted his withdrawal from the conspiracy.”). So long as the statements are made during and in furtherance of the conspiracy—which includes keeping co-conspirators apprised of recent events—incarceration is not a bar to admission. See Mayfield, 909 F.3d at 962 (co-conspirator's calls from jail concerning “efforts to protect and conceal the existence of the conspiracy” were in furtherance of the conspiracy); see also United States v. Adoma, 781 F. App'x 199, 205–06 (4th Cir. 2019) (gang member's jailhouse statements regarding details of prior crime constituted a statement in furtherance of the conspiracy, where bragging about crimes allowed gang member “to move up the ranks or recruit other members” and fostered loyalty among members).

Under Eighth Circuit precedent, Cross and Hensley's statements to Pullman were “in furtherance of” the conspiracy for purposes of Fed. R. Evid. 801(d)(2)(E). Those statements served to keep Pullman informed about the conspiracy in a situation where Pullman, although in custody, nonetheless needed to keep abreast about the group's feuds in order to protect himself. See Darden, 70 F.3d at 1529; Davis, 457 F.3d at 825; Mayfield, 909 F.3d at 962. Indeed, Pullman had been shot at just a few weeks before he went into custody. Moreover, the conspiracy did not end in June 2020 when Pullman and others were taken into custody; instead, the shootings on July 5, 2020, and in later months and years show that there was an ongoing risk of violence connected to the alleged enterprise. It follows that the out-of-court statements by Cross and Deandre Hensley were in furtherance of the conspiracy under Fed. R. Evid. 801(d)(2)(E). See Mayfield, 909 F.3d at 962. This aspect of Houston's motion for new trial is therefore DENIED.

C. The Court Properly Admitted Expert Testimony from Detective Minnehan Regarding Neighborhood Street Gangs.

Defendants next argue that the Court erred in allowing the Government to present expert testimony from Detective Brian Minnehan regarding neighborhood street gangs. Defendants argue, inter alia, that Detective Minnehan's experience was limited to Des Moines gangs and therefore he should not have been permitted to testify about gangs in Davenport.⁹³ As a result, they assert his testimony was irrelevant and unfairly prejudicial.

Detective Minnehan's testimony was properly admitted. The Eighth Circuit recently approved of this type of generalized gang testimony in United States v. Mallory, which was an attempted murder in aid of racketeering case. See 104 F.4th 15, 19 (8th Cir. 2024). There, a federal agent provided background information about gangs, including “how they form, act, and deal with one another,” the point of which was to “help the jury understand upcoming testimony about the mindset and practices” of the gangs at issue. Id. The Eighth Circuit rejected defendant's argument that there was too much “daylight” between the “gangs” the agent had in mind and the legal definition of “enterprise,” instead holding that the “need for the jury to figure out the relationship between the two concepts was why the testimony was helpful.” Id. Together with other specific evidence about the gang at issue, the jury could “evaluate whether the gang was an ‘enterprise’ and the murder attempt aided in its racketeering activity.” Id. Mallory is consistent with well-established Eighth Circuit precedent recognizing that expert testimony regarding “the way gangs operate” is admissible. See United States v. Sparks, 949 F.2d 1023, 1025–26 (8th Cir. 1991). Detective Minnehan's testimony fits squarely within this precedent, which does not require the expert to opine on the gang at issue to be relevant.

For essentially the same reasons, Defendants' argument that Detective Minnehan's testimony was unfairly prejudicial fails. Like the expert in Mallory, Detective Minnehan “acknowledged up front that he did not know [the defendants] (or have any other involvement with the case), so it is unlikely that the jury relied on what he said for anything more than general background information.” 104 F.4th at 19. To the extent Defendants are arguing more generally that expert testimony regarding gangs is unfairly prejudicial, the argument is unpersuasive. Experts may testify about gangs where “relevant to a disputed issue in the case.” United States v. Shelledy, 961 F.3d 1014, 1021 (8th Cir. 2020). Gang evidence was directly relevant to the disputed issue here, which was whether Fifth Street Mafia was an enterprise.

Simmeon Hall also argues that Detective Minnehan improperly relied on the Iowa definition of “criminal street gang” when testifying.⁹⁴ The Court cannot, however, locate anywhere in the transcript that Detective Minnehan purported to adopt or apply the Iowa definition of criminal street gang, nor does Simmeon Hall's motion provide any citations. In fact, Detective Minnehan did not offer a definition of gang at all until cross-examination, at which time he made clear that he was simply offering “my opinion.”⁹⁵ When Simmeon Hall's counsel later followed up on that definition,⁹⁶ Minnehan again said nothing to suggest he was adopting the Iowa Code definition of “criminal street gang.” There is no basis for new trial in these circumstances. This aspect of Defendants' post-trial motions is DENIED.

D. The Court Properly Denied Defendants' Request for the Personnel File of a Government Witness.

Prior to trial, some Defendants moved for a subpoena to obtain Detective Minnehan's personnel file, arguing that it might contain material governed by Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963).⁹⁷ The Government represented that the file did not Giglio or Brady material, and Defendants presented no evidence to the contrary.⁹⁸ Some Defendants now renew their argument that the subpoena should have been issued, although they provide no additional reasons why.⁹⁹ Alternatively, those Defendants argue the Court should have conducted an in camera review of the file instead of taking the Government at its word that the file did not contain Giglio or Brady material.

Without additional evidence or context for why the personnel file was discoverable, the Court will not revisit its initial ruling denying the motion for subpoena. To the extent Defendants properly preserved the issue,¹⁰⁰ the Court similarly declines to conclude that in camera review was necessary. See United States v. Oliver, 950 F.3d 556, 563 (8th Cir. 2020) (“[F]or the same reason it did not abuse its discretion in denying Oliver's motion for disclosure, the district court did not abuse its discretion in denying Oliver's motion for in camera examination.”). “[W]hen the government has reviewed a personnel file for Brady material, the defendant's speculation that the file may contain impeaching information does not compel the district court to review the file in camera.” United States v. Van Brocklin, 115 F.3d 587, 594 (8th Cir. 1997). Even if it had been properly requested, absent a showing of bad faith—and Defendants do not allege bad faith here—the Court would have been within its discretion to deny the request for in camera review. See id. at 594–95; see also United States v. Mazzulla, No. 4:17-CR-3089, 2018 WL 1954208, at *1 (D. Neb. Apr. 14, 2018) (denying defendant's motion for in camera review of personnel file for Giglio material where Government proffered personnel file was not discoverable and defendant did not allege bad faith), aff'd, 932 F.3d 1091 (8th Cir. 2019).

Finally, and in any event, the Court notes that defense counsel was given considerable latitude to cross-examinate Detective Minnehan about the ruling of a judge in the Southern District of Iowa that he violated someone's constitutional rights when making a traffic stop. It is difficult to imagine that Detective Minnehan's personnel file would have contained any better fodder for cross-examination than this.

For these reasons, this aspect of Defendants' post-trial motions is DENIED.

E. The Denial of the Motions to Sever Did Not Prejudice Defendants.

Some Defendants renew their pre-trial argument that their cases should have been severed from one another.¹⁰¹ Defendants raise similar arguments to those raised before trial regarding the number of defendants and complexity of the case, as well as a new argument that, with the benefit of trial, the Court should conclude that actual prejudice occurred.

At the outset, it's not clear that the Court should consider the trial evidence in deciding if the pretrial denial of Defendants' motion to sever was appropriate except insofar as Defendants' pretrial arguments identified that evidence in the first place. See United States v. Pacente, 503 F.2d 543, 546 (7th Cir. 1974) (“Review of the exercise of this discretion [to sever] must be based on the state of the record at the time of the motion.”). Even if the Court may consider the trial evidence in its entirety, however, the Court stands by the conclusion not to sever. Neither the number of defendants nor complexity resulting therefrom require severance in a properly joined case. See, e.g., United States v. Willis, 940 F.2d 1136, 1139 (8th Cir. 1991) (holding that case with six defendants and thirty-two counts of conspiracy, narcotics, and firearms offenses was not too complex for joinder), superseded on other grounds, United States v. Carter, 490 F.3d 641, 646 (8th Cir. 2007); United States v. Farah, No. 22-cr-124, 2023 WL 8757097, at *19 (D. Minn. Dec. 19, 2023) (concluding complexity did not prevent compartmentalization in conspiracy prosecution of eight defendants on more than forty counts). Disparity in culpability does not warrant severance, either. See United States v. Spotted Elk, 548 F.3d 641, 658 (8th Cir. 2008) (“As a practical matter, disparity among the defendants in extent of involvement and culpability is commonplace in conspiracy cases and does not alone show the kind of prejudice that would require a district court to sever, rather than to respond with some less drastic measure such as a curative instruction.”).

Severance also was not required even though the Government presented evidence of violent acts Defendants did not directly participate in. In racketeering conspiracy cases, this evidence would have been admissible against each Defendant regardless of severance because it was relevant to prove that the agreement or understanding involved two or more racketeering acts. See Darden, 70 F.3d at 1527 (“Each defendant may be held accountable for actions taken by other defendants in furtherance of the conspiracy, and thus all of the evidence offered at trial relating to the activities of the [enterprise], regardless of whether [defendants] directly participated in those activities, would be admissible against them if they had been given separate trials.”). When it does come in, the Eighth Circuit has held that a cautionary instruction reminding jurors to “give separate consideration to the evidence about each individual defendant” mitigates any prejudice. See United States v. May, 70 F.4th 1064, 1071 (8th Cir. 2023). The Court included that cautionary instruction here.¹⁰²

Finally, although no Defendant appears to argue otherwise, it is worth emphasizing that there were no irreconcilable defenses at trial. In fact, Defendants pursued a unified defense theory that the Government could not prove the existence of an enterprise or their participation in it. See, e.g., May, 70 F.4th at 1071 (affirming denial of motion to sever where defendants' “defense—that the government failed to produce credible evidence linking them to the conspiracy—was simple and straightforward”). On many occasions, defense counsel even built off one another's objections and cross-examinations to the point where it felt like each Defendant had five attorneys.

In sum, nothing that happened at trial calls into doubt the Court's earlier conclusion that Defendants did not overcome the “strong presumption” in favor of joint trials in conspiracy cases. See United States v. Henley, 766 F.3d 893, 915 (8th Cir. 2014). The Court therefore DENIES this aspect of Defendants' post-trial motions. See id. (affirming denial of motion to sever in racketeering conspiracy case); Darden, 70 F.3d at 1527–28 (“[J]ustice is best served by trying the members of a racketeering enterprise together.”).

F. The Court Did Not Err in Denying Simmeon Hall's Request to Modify Instruction No. 20.

Simmeon Hall argues the Court erred in denying his request to remove the second sentence from Final Instruction No. 20, the so-called Pinkerton 103 instruction.¹⁰⁴ Instruction No. 20 tracked the Eighth Circuit Model Instruction 5.06D word-for-word: “If you determined that an agreement existed and the defendant joined the agreement, then acts and statements knowingly done or made by a member of the agreement during the existence of the agreement and in furtherance of it, may be considered by you as evidence pertaining to the defendant, even though the acts and statements were done or made in the absence of and without the knowledge of the defendant. This includes acts done or statements made before the defendant joined the agreement, because a person who knowingly, voluntarily and intentionally joins an existing conspiracy becomes responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.”¹⁰⁵

The Eighth Circuit has consistently approved of Pinkerton instructions in conspiracy cases. See United States v. Pierce, 479 F.3d 546, 551 (8th Cir. 2007) (“[T]he instructions and cases illustrate that both mandatory and discretionary Pinkerton instructions are fair statements of the law, so long as each element of the Pinkerton doctrine is included in the instruction.”). The instruction is as appropriate in racketeering conspiracy cases as it would be in any other type of conspiracy. See United States v. Pungitore, 910 F.2d 1084, 1147–48 (3d Cir. 1990) (affirming use of Pinkerton instruction in racketeering conspiracy case and stating that “in enacting section 1962(d), Congress did not radically alter traditional conspiracy law except to the extent that it proposed a dramatically new conspiratorial objective”); United States v. Wilkerson, 966 F.3d 828, 841 (D.C. Cir. 2020) (same, approving of Pinkerton instruction in racketeering conspiracy case). The Court therefore DENIES this aspect of Simmeon Hall's motion.

G. The Evidence Supports the Jury's Verdict on Count 1 as to Each Defendant.

All five Defendants next argue that the evidence was insufficient to sustain the jury's verdict on Count 1, which charged racketeering conspiracy. Although there are modest differences between their respective arguments, the main thrust of each Defendant's position is that the Government failed to prove the existence of an “enterprise” as required under RICO because “Fifth Street” did not have the structural features required under governing law; indeed, Defendants argue it had no structure at all. Defendants also argue that the Government failed to prove a “pattern of racketeering activity” because neither the alleged acts involving murder nor those involving drug distribution were designed to advance any common purpose of the enterprise; instead, in Defendants' view, the acts were sporadic, ad hoc, and motivated by the self-interest of each actor. Some Defendants also raise additional arguments that are encompassed in the analysis below.

1. A Reasonable Juror Could Find that Fifth Street Had Sufficient Structure to Constitute an “Enterprise.”

To analyze Defendants' argument about the existence of an “enterprise,” it is necessary to start with Final Instruction No. 14, which defined that term.¹⁰⁶ Final Instruction No. 14 stated, among other things, that an enterprise may include “a group of people associated in fact, even though this association is not recognized as a legal entity. A group or association of people can be an enterprise if these individuals have joined together for the purpose of engaging in a common course of conduct. This group of people, in addition to having a common purpose, must have personnel who function as a continuing unit.”¹⁰⁷ Final Instruction No. 14 further stated: “The government must also prove that the association had a structure distinct from that necessary to conduct the pattern of racketeering activity.”¹⁰⁸ In effect, this language communicated to the jury that the Government had to prove three elements to establish the existence of an enterprise: (1) a common or shared purpose; (2) continuity of structure and personnel; and (3) an ascertainable structure distinct from that inherent in the pattern of racketeering activity. These three elements are consistent with older Eighth Circuit precedent like United States v. Crenshaw, 359 F.3d 977, 991 (8th Cir. 2004).

The Court had doubts about whether the third element should have been included in Final Instruction No. 14.¹⁰⁹ In 2009, the United States Supreme Court resolved a circuit split and held that the Government is not required in a racketeering prosecution to prove an “ascertainable structure ․ beyond that inherent in the pattern of racketeering activity.” United States v. Boyle, 556 U.S. 938, 947 (2009). In other words, Boyle effectively overruled Crenshaw and other Eighth Circuit precedent as to the putative third element the Government must satisfy to prove an enterprise. See id. Nonetheless, some post-Boyle cases in the Eighth Circuit continued to include the third element when defining an “enterprise.” See Henley, 766 F.3d at 906; Crest Const. II, Inc. v. Doe, 660 F.3d 346, 354 (8th Cir. 2011). Likewise, Eighth Circuit Model Jury Instruction No. 6.18.1962D continues to include the third element. Accordingly, in an abundance of caution, the Court included the third element in the proposed version of Final Instruction No. 14 that was circulated to the parties.¹¹⁰ Because the Government did not object to this portion of proposed Final Instruction No. 14,¹¹¹ the jury ended up being instructed that the third element was part of what the Government needed to prove.

In retrospect, the Court is confident the third element should not have been included in Final Instruction No. 14. There is simply no fair reading of Boyle that would make it necessary for the Government to prove that the “association had a structure distinct from that necessary to conduct the pattern of racketeering activity,” or words to similar effect. See 556 U.S. at 947 (declining to interpret RICO as imposing such a requirement). To that end, shortly after trial in this case ended, the Eighth Circuit decided United States v. Green, which affirmed a defendant's conviction in a racketeering case. 104 F.4th 12, 14 (8th Cir. 2024). When describing what the Government needed to prove to establish an “enterprise,” Green did not mention the “ascertainable structure” requirement, nor did the trial court's instruction in that case include such a requirement. See United States v. Green et al., Case No. 4:21-cr-00075 (S.D. Iowa), ECF 372, pp. 24–25 (Final Instruction No. 18). Instead, Green cited heavily to Boyle for the proposition that the Government merely needed to prove “a [common] purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue [its] purpose.” 104 F.4th at 14 (quoting Boyle, 556 U.S. at 946); accord United States v. McArthur, 850 F.3d 925, 934 (8th Cir. 2017) (same).

In response to Defendants' motions for judgment of acquittal, the Government urges the Court to follow Boyle and not concern itself with whether the evidence showed the existence of a “structure distinct from that necessary to conduct the pattern of racketeering activity.”¹¹² The Government acknowledges, however, that Final Instruction No. 14 included the “distinct structure” requirement.¹¹³ It is somewhat unclear under Eighth Circuit precedent how the Court should handle this. In United States v. Staples, the Eighth Circuit held that when a jury instruction obligates the Government to prove more than the governing statute requires, the erroneous instruction “nonetheless become[s] the law of the case.” 435 F.3d 860, 866 (8th Cir. 2006). Staples therefore held that when deciding a motion for judgment of acquittal, the Court must evaluate “whether the evidence was sufficient to meet the elements as defined for the jury.” See id. A few years later, however, in United States v. Inman, the Eighth Circuit suggested that Staples might have been wrongly decided and inconsistent with earlier, binding precedent. 558 F.3d 742, 750 n.5 (8th Cir. 2009). As Inman explained, “[i]t might be argued that one or both of the convictions in Staples should have been affirmed under the more deferential standard of Jackson v. Virginia, 443 U.S. [307], 319 [(1979)].” Id. The Court is left with the dichotomous situation in which Staples requires the sufficiency of the evidence to be evaluated according to Final Instruction No. 14 but Inman suggests it should be evaluated according to Boyle. In an abundance of caution, the Court will evaluate the evidence under both standards.

Here, under either standard, the Government presented sufficient evidence to allow a reasonable juror to find the existence of an association-in-fact enterprise. The evidence showed that Defendants and others affiliated with one another for a variety of common purposes, including, but not limited to, committing or conspiring to commit acts of violence, defending each other against putative rivals (or “opps”), committing or conspiring to commit burglary and firearm-related offenses, honoring deceased friends, and otherwise trying to earn respect within the Quad Cities community. See Green, 104 F.4th at 14 (affirming existence of “enterprise” where evidence showed that the group sold drugs and attacked rivals). The group sometimes called itself “Zone Fifth,” “Fifth Street Mafia,” or simply “Fifth Street,” and the group's identity was tied to a residential neighborhood in and around Fifth Street in Rock Island, Illinois. To take just a few examples from the dozens of hours of trial testimony and hundreds of trial exhibits, the Government presented the following evidence of an association-in-fact:

- Defendants and/or others posted pictures of themselves on social media wearing “Fifth Street” clothing or flashing hand-signs in which four fingers are raised on one hand and the middle finger is raised on the other, with the total number of fingers (five) signifying “Fifth Street”;

- Defendants and/or others posted messages, wore clothing, and attended events honoring deceased friends and alleged associates, including Michael Collier, Michael Williams, Kion Lewis, and Andrell Hearn, some of whom had been shot and killed by members of rival groups;

- when members or associates of the group were disrespected in some way, acts of retaliation would occur, including, for example, in September 2015 when a member of a rival group, Lewis Woodson, was shot and killed after having recorded music that included the lyrics “Fuck Kion”;

- Defendants and/or co-conspirators posted social media messages, made a rap video,114 and otherwise engaged in communications glorifying violence, expressing loyalty to each other, and expressing disrespect toward rival groups, law enforcement, and people who cooperated with law enforcement; and

- Defendants and/or others posted or shared messages expressing support and solidarity with members of their group who were serving prison sentences.

The evidence also showed that Defendants and others engaged in concerted activity at various times during the alleged conspiracy, including, for example, during the period leading up to and including May 31 and June 1, 2020. In the days and weeks leading up to those dates, there were multiple shots-fired incidents in the Quad Cities, including the fatal shooting of Timon Mayfield on May 23, 2020, following a dispute over a dice game. This feud prompted Defendants and others to begin checking in on one another to ensure their collective well-being.

The events of May 31 and June 1, 2020, are particularly important to showing the existence and structure of the alleged enterprise. Defendants worked with each other and others to plan and attempt to carry out a burglary at Necker's Jewelers, starting with a meeting in a cemetery in which they removed license plates from vehicles to make it harder for the vehicles to be identifiable to law enforcement. Defendants and others then traveled together to Necker's and clearly intended to burglarize the store until being interrupted by the arrival of someone they (wrongly) perceived as a member of a rival group. Multiple Fifth Street members ran around the building together and began firing shots at that person, later identified as Anthony Gardner, hitting him multiple times.

After fleeing Necker's, Defendants and others began driving around Davenport in a way that was so coordinated it attracted law enforcement attention. When Defendants pulled their vehicles into an alley between 14th and 15th Streets, an unmarked police truck decided to follow. Wrongly believing (again) the truck to be associated with a rival group, members of Defendants' group began firing what would eventually be more than twenty shots, one of which hit the truck's driver, Detective Lansing, and at least two more of which came close to hitting his head but struck the driver's side headrest instead. Six members of the group (including all Defendants except Simmeon Hall) then fled together in a black Pontiac that was stopped after a high-speed chase through a residential neighborhood. Law enforcement officers found guns, ammunition, masks, gloves, and drugs in the vehicle or on its occupants.

Collectively, this evidence was sufficient to allow a reasonable juror to conclude there was an association-in-fact enterprise with a common purpose, relationships among people associated with the group, and sufficient longevity to pursue the group's purposes. See Boyle, 556 U.S. at 946. For example, although there was no hierarchy and people affiliated with the group would come and go (often due to incarceration), there was an underlying, common bond: group members protected each other, expressed pride in themselves and their group, and feuded with rivals. See Green, 104 F.4th at 14 (affirming racketeering conspiracy conviction where enterprise's common purposes included, inter alia, “attacking rivals”); McArthur, 850 F.3d at 934 (affirming conviction where evidence showed that enterprise members “worked to promote the [group,] develop its reputation, and protect its territory and members”); see also Boyle, 556 U.S. at 948 (“[N]othing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.”).

Although a closer call, the group also had an “ascertainable structure ․ beyond that inherent in the pattern of racketeering activity.” Crenshaw holds that the “distinct-structure element can be shown by patterns of retaliation and intimidation undertaken to protect and defend the enterprise's business and associates.” 359 F.3d at 991. Here, although the enterprise had no true “business” to defend along the lines of what one ordinarily might associate with organized crime, the members unquestionably engaged in patterns of retaliation and intimidation to protect and defend each other, as illustrated by, inter alia: (a) Defendant White's involvement in the fatal shooting of Vincelina Howard in August 2006 in apparent retaliation for the earlier fatal shooting of an alleged Fifth Street associate named Andrell Hearn; (b) the involvement of Fifth Street associates in a shootout at the Col Ballroom in May 2011 that led to the death of alleged Fifth Street member Michael Williams and injuries to other alleged Savage Life and Fifth Street members, including Raheem Houston; (c) the involvement of alleged Fifth Street member Juwan Johnson in the fatal shooting of Lewis Woodson in September 2015 in apparent retaliation for Woodson making a rap video with the words “Fuck Kion”; (d) Defendants' involvement in the shootings on the night of May 31/June 1, 2020, in the midst of a feud with members of the Roberts/Gay/Mayfield families; and (e) the involvement of Fifth Street members in a shootout with Savage Life members on July 5, 2020, resulting in the death of DeLandres Thompson. Moreover, even if the acts of racketeering were set aside, the group engaged in other legal and illegal acts such as attending and publicizing events honoring deceased associates, making a rap video, and organizing and carrying out the attempted burglary at Necker's, to name just a few. This is enough to satisfy the ascertainable structure requirement. See United States v. Lemm, 680 F.2d 1193, 1201 (8th Cir. 1982) (concluding that enterprise had ascertainable structure because it engaged in legal and illegal acts outside of the predicate acts of racketeering).

Granted, in contrast to the enterprises in most other reported cases, the association-in-fact here had an amorphous structure with no hierarchy, no defined roles, and no formal rules as to entry and exit. Indeed, this case might approach the outer boundary of the definition of “enterprise.” Still, it fits within that boundary. In fact, although Fifth Street might have little in common with “traditional” organized criminal enterprises and gangs, it nonetheless represents just as much—if not more—of an ongoing threat to the community. The persistence of the enterprise, as loosely structured as it was, kept feuds with rival groups salient and ripe for ongoing violence in a situation where the danger to the community otherwise might have ceased to exist. See McArthur, 850 F.3d at 935 (affirming conviction where indefinite threat of continuity existed); United States v. Davidson, 122 F.3d 531, 535 (8th Cir. 1997) (rejecting defendant's argument that alleged enterprise was just a series of ad hoc criminal acts and relationships). This is enough to sustain the jury's verdict that an “enterprise” existed.

2. A Reasonable Juror Could Find that the Government Established the Other Elements of Count 1.

The Government also presented sufficient evidence on the remaining elements of Count 1 as to each Defendant, including that: the enterprise affected interstate commerce; each Defendant associated with the enterprise; an agreement existed between two or more persons to conduct or participate in the affairs of the enterprise, directly or indirectly, through a pattern of racketeering activity; and each Defendant voluntary and intentionally joined in the agreement or understanding and intended to participate in the enterprise's affairs.¹¹⁵

As it relates to the interstate commerce element, the evidence showed that Fifth Street members and associates frequently crossed state lines and used cell phones, social media, and other instruments of interstate commerce to conduct the enterprise's affairs. This is enough to constitute a “minimal effect on interstate commerce,” as required under Eighth Circuit precedent. Crenshaw, 359 F.3d at 985 n.3.

The evidence also sufficiently established each Defendant's association with the enterprise. The Government's evidence included, inter alia: (a) social media images showing each Defendant flashing hand signs (or associating with others doing the same); (b) social media posts in which each Defendant expresses association with, or pride in, the enterprise; and (c) extensive testimony, videos, photographs, and physical evidence showing each Defendant's involvement in enterprise activities, including, especially, the events at Necker's and in the alley on the night of May 31 and June 1, 2020. This is enough to sustain the jury's finding that each Defendant associated with the enterprise. The same evidence further shows that each Defendant voluntarily and intentionally joined in an agreement or understanding to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity. In McArthur, the Eighth Circuit affirmed a RICO conviction in similar circumstances, holding that the involvement of enterprise members in multiple assaults was enough to establish a “pattern” of racketeering activity and the defendant's involvement therein. 850 F.3d at 935. The logic of McArthur applies here.

As it relates to the “pattern of racketeering activity,” two additional things deserve attention. First, the Government only needed to prove that there was an agreement or understanding for the enterprise as a whole to commit at least two acts of racketeering, not that each Defendant himself intended to (or did) commit two such acts. See Henley, 766 F.3d at 908; United States v. Leisure, 844 F.2d 1347, 1367 (8th Cir. 1988). This is important for Defendants like Devell Lewis and Simmeon Hall, who argue that there was insufficient evidence that they personally fired shots at Necker's or in the alley on the night of May 31/June 1. While these arguments will matter for sentencing purposes, see United States v. Nichols, 76 F.4th 1046, 1056 (8th Cir. 2023), they are irrelevant for sufficiency of the evidence purposes. The Government did not need to prove that Lewis or Simmeon Hall fired any shots, only that they joined in an agreement or understanding with others who did. On that score, the Government's evidence met the mark. For example, the mere fact that Lewis and Simmeon Hall continued to associate with Fifth Street after the shootings of Vincelina Howard and Lewis Woodson shows their knowledge that two or more acts of racketeering had been committed. Moreover, even if one focuses entirely on the night of May 31/June 1 (which, to be clear, is an unnecessarily narrow focus) the evidence shows that Lewis and Simmeon Hall joined the group at Necker's with knowledge that their co-conspirators were armed and ready to respond violently to perceived rivals, joined up with the group again in the alley a few hours later after the shooting of Anthony Gardner, and (in Lewis's case) fled the scene with a subset of the larger group after more than thirty rounds were fired at the truck with the undercover officers. This is enough to demonstrate their awareness that the agreement or understanding involved two or more acts involving murder.

Second, taken as a whole, the Government's evidence was sufficient to establish that the conspiracy involved an agreement to commit to at least two acts involving murder within ten years of one another. In fact, the shootings of Anthony Gardner and Detective Lansing on May 31/June 1 alone are enough by themselves. Given the number of shots fired in those incidents and the fact that Fifth Street members shot first in each instance, a reasonable juror could have concluded that the shooters had the requisite intent to have committed Attempted Murder under Iowa law. In other words, two acts of racketeering were committed in one night. It follows that the “pattern” requirement was satisfied. And, of course, there were other acts of racketeering as well, including, to name a few, Defendant White's involvement in the fatal shooting of Vincelina Howard in 2006, the two-way shootout at the Col Ballroom in May 2011 that resulted in one death and multiple injuries to Savage Life and Fifth Street members (including Houston), and Juwan Johnson's fatal shooting of Lewis Woodson in September 2015.

Relatedly, Lewis and Houston argue that the Government failed to prove a sufficient nexus between the shootings and the enterprise. Their argument is colorable, as the Government presented evidence of some shootings that appeared to have little connection to Fifth Street beyond the fact that they were committed by a Fifth Street member. On other occasions, however, the Government proved a tighter nexus. The Vincelina Howard shooting, for example, occurred a few months after the death of Fifth Street associate Andrell Hearn. Similarly, the Woodson shooting occurred after he produced music disrespecting deceased Fifth Street member Kion Lewis, and Woodson's mother testified that her home was targeted by people yelling disrespectful language toward Woodson's gang. Finally, the shootings on May 31/June 1, 2020, occurred amid an active feud between Fifth Street members and members of a rival group. The jury had sufficient evidence in these circumstances to conclude that at least two of the acts involving murder proved by the Government were linked to Fifth Street as an enterprise. It follows that the Government proved an agreement or understanding to commit at least two acts involving murder.

Because the evidence was sufficient to allow a reasonable juror to conclude that the conspiracy involved an agreement or understanding to commit at least two acts involving murder, the Court need not decide whether the evidence also proved an agreement or understanding to commit at least two acts involving illegal drug activity. On that score, the evidence was mixed, at best. While the evidence showed that members of the enterprise sold drugs—sometimes in concert with one another—it is harder to conclude that the drug activity advanced any common purpose. Instead, the evidence arguably showed only that enterprise members sold drugs for their own profit. The Court will save for another day the question of whether this is enough to satisfy the requisite elements of a racketeering conspiracy charge.

H. The Court Denies White's Renewed Second Amendment Argument.

Prior to trial, White moved to dismiss Count 4 of the Second Superseding Indictment (Trial Count 3) on the basis that 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment pursuant to the test set forth by the Supreme Court in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022).¹¹⁶ The Court denied the motion,¹¹⁷ and the jury later found White guilty of Felon in Possession of Ammunition in violation of section 922(g)(1).¹¹⁸ White now renews his motion, arguing that the Supreme Court's recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), calls the Court's prior ruling into question.

In United States v. Jackson, the Eighth Circuit held that Rahimi “does not change our conclusion” that section 922(g)(1) is constitutional. 110 F.4th 1120, 1122 (8th Cir. 2024). In the context of as-applied challenges, “there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1).” Id. at 1125. The very next week, in United States v. Cunningham, the Eighth Circuit reiterated its conclusion that section 922(g)(1) is facially constitutional. See --- F. 4th ----, 2024 WL 3840135, at *3 (8th Cir. Aug. 16, 2024). The combination of Jackson and Cunningham is fatal to White's argument, particularly given that the Eighth Circuit does not distinguish between ammunition and firearms in its analysis of the constitutionality of section 922(g)(1). See United States v. Doss, No. 22-3662, 2024 WL 3964616, at *1 (8th Cir. Aug. 28, 2024) (per curiam) (collectively, Jackson and Cunningham spell the end to Second Amendment challenges to section 922(g)(1)); United States v. Cameron, 99 F.4th 432, 435–36 (8th Cir. 2024) (noting that “Bruen did not differentiate between regulations governing ammunition and regulations governing the firearms themselves,” and finding the rights are “coextensive”).

Finally, even without Jackson and Cunningham, White's prior conviction for voluntary manslaughter would defeat any as-applied challenge he might be allowed to make to section 922(g)(1). See Doss, 2024 WL 3964616, at *1 n.2 (explaining that an as-applied challenge would fail when a defendant's criminal history demonstrates a “credible threat to the physical safety of others”). For these reasons, the Court DENIES this aspect of White's post-trial motion.

I. The Court Denies the Motions for Judgement of Acquittal and/or New Trial on Counts 4 and 5.

1. Facts.

The final arguments the Court must address relate to the possession with intent to distribute charges against Deaguise Hall (Count 4) and Simmeon Hall (Count 5), which stemmed from searches at two separate locations on May 25, 2023. As to Deaguise Hall, the Government elicited testimony from one of the police officers who executed a search warrant at his residence in the early morning hours of May 25.¹¹⁹ Officers found crack cocaine in the kitchen of the residence with a net weight of 13.22 grams.¹²⁰ Officers also located multiple digital scales containing a white powdery substance, a box of sandwich baggies, individual sandwich baggies with the corners missing, U.S. currency, and four cell phones.¹²¹ Officers did not find pipes or other instruments that one would use to ingest crack cocaine.¹²²

As to Simmeon Hall, the Government presented testimony from two officers who were present at his arrest. Prior to being arrested, Simmeon Hall was mowing a large open lot next to the residence identified in his arrest and search warrant.¹²³ Although officers arrived in unmarked vehicles, it was obvious who they were: at least one officer was wearing a ballistic helmet and vest with police identifiers on them, and multiple officers announced “police” upon exiting the vehicle.¹²⁴ After announcing their presence in this fashion, officers saw Simmeon Hall reach into the pocket of his hooded sweatshirt, look at the officers, and begin to run.¹²⁵ Officers chased him toward a large privacy fence and saw him put both hands “up towards the top of the privacy fence” before bringing his hands down and complying with officers' instructions.¹²⁶ After he was secured, officers noticed a small plastic bag by itself on the other side of the fence.¹²⁷ Laboratory testing showed that the package contained cocaine base with a net weight of 19.20 grams.¹²⁸

2. Legal Background.

To convict a defendant of possession with intent to distribute a controlled substance, “the Government must prove beyond a reasonable doubt (1) that [the defendant] knowingly possessed the drugs and (2) that he intended to distribute the drugs.” United States v. Jackson, 610 F.3d 1038, 1043 (8th Cir. 2010). “Proof of actual possession or constructive possession is sufficient to satisfy the element of knowing possession under section 841(a)(1).” United States v. Boyd, 180 F.3d 967, 979 (8th Cir. 1999). “Constructive possession is defined as knowledge of presence of the contraband plus control over the contraband. Evidence showing a person has dominion over the premises in which the contraband is concealed establishes constructive possession.” United States v. Walker, 103 F.4th 515, 519–20 (8th Cir. 2024).

“Intent to distribute controlled substances may be proved by either direct evidence or circumstantial evidence.” United States v. Sanders, 341 F.3d 809, 816 (8th Cir. 2003). “The presence of equipment to weigh and measure the narcotics, paraphernalia used to aid in their distribution, and large sums of cash are common indicia of drug trafficking and are all circumstantial evidence of intent to distribute.” Id. The presence of circumstantial evidence along with a small amount of drugs can support a finding of intent to distribute. Id. Likewise, “[i]ntent to distribute may be inferred solely from the possession of a large quantity of drugs.” United States v. Johnson, 18 F.3d 641, 647 n.13 (8th Cir. 1994).

3. A Reasonable Juror Could Find that Deaguise Hall Possessed Cocaine Base with the Intent to Distribute.

Deaguise Hall does not dispute that he possessed the drugs; only that the evidence was sufficient to prove anything other than personal use. The finding of possession is indeed supported by the record: Deaguise Hall—and no one else—was present when officers arrived in the early morning, and officers located items in the residence indicating his occupancy.¹²⁹

There was also sufficient evidence of intent to distribute. The Government presented testimony that cocaine base weighing more than 13 grams was found in the kitchen.¹³⁰ Officers also found multiple scales with white powdery residue, four cell phones, cash, a box of sandwich baggies, and baggies with the corners missing.¹³¹ By contrast, officers did not locate a crack pipe or other evidence of personal use.¹³²

The Government's drug expert testified that ten grams of crack cocaine is a distribution quantity representing up to 100 dosage units; meaning, the quantity found in Deaguise Hall's kitchen is equivalent to 130 doses.¹³³ He explained that typical users will use fractions of a gram, and user quantities are “always less than one gram.”¹³⁴ He said most users do not amass dosage units that would last beyond a day or so because they do not have the money.¹³⁵ The jury heard testimony that one ounce of crack cocaine (approximately 28 grams) could cost between $1,100 and $1,700.¹³⁶ The expert also explained that cell phones play a significant part in the drug trade, scales are commonly used to avoid disputes about drug quantities, and that plastic sandwich baggies missing corners are indicative of drug distribution.¹³⁷ Two experts testified that they would expect a mere user to be in possession of a pipe or other instrument to ingest cocaine base.¹³⁸

The combination of a distribution-level quantity of drugs and circumstantial evidence of intent to distribute is enough to sustain the jury's verdict on Count 4. See United States v. Bell, 477 F.3d 607, 613 (8th Cir. 2007) (concluding there was sufficient evidence to support conviction for possession with intent to distribute crack cocaine where defendant possessed approximately seven grams of crack cocaine and there was no indicia of personal use); United States v. Bryson, 374 F. App'x 680, 681 (8th Cir. 2010) (affirming conviction for possession with intent to distribute where defendant possessed almost eight grams of crack cocaine and $618 in cash but no user paraphernalia). The Court therefore DENIES this aspect of Deaguise Hall's post-trial motion.

4. A Reasonable Juror Could Find that Simmeon Hall Possessed Cocaine Base with the Intent to Distribute.

Simmeon Hall argues, among other things, that the Government failed to prove “actual” possession of cocaine base. Proof of actual possession is not, however, required. Constructive possession is enough. See Boyd, 180 F.3d at 979. Here, the jury heard evidence that, upon seeing police, Simmeon Hall reached into his sweatshirt pocket in a suspicious way and ran toward the privacy fence.¹³⁹ A reasonable juror could view this as evidence of guilt. See United States v. Webster, 442 F.3d 1065, 1067 (8th Cir. 2006) (“That [the defendant] may have had other possible reasons for fleeing from police does not render evidence of the flight inadmissible to show consciousness of guilt of the crime charged.” (quotation omitted)). Hall then raised his hands toward the top of the fence in the vicinity where drugs were later found. In context, the jury obviously—and reasonably—concluded that he threw the drugs over the fence before submitting to arrest. See Doss, 2024 WL 3964616, at *1 (affirming conviction for felon in possession of a firearm where officer in pursuit believed that defendant had thrown a gun, and officers located a gun in a dumpster by which defendant had run). In other words, the jury reasonably concluded that he either actually or constructively (or both) possessed the drugs. See, e.g., United States v. Buford, 108 F.3d 151, 153–54 (8th Cir. 1997) (concluding there was sufficient evidence to find that the defendant possessed baggie of cocaine thrown out of apartment window); United States v. Parchmon, 14 F. App'x 719, 720 (8th Cir. 2001) (per curiam) (affirming conviction for possession with intent to distribute where officer saw defendant toss something and later located three baggies of cocaine base on the ground). To that end, although mere “proximity to where the drugs are found” is insufficient to sustain a conviction, the circumstances surrounding Simmeon Hall's arrest provide the necessary nexus to the drugs. United States v. Wajda, 810 F.2d 754, 761–62 (8th Cir. 1987); see also Walker, 103 F.4th at 520 (using defendant's conduct during traffic stop to show that he had sufficient knowledge and control over contraband to support guilty verdict).

Simmeon Hall also argues that the Government failed to present sufficient evidence of intent to distribute. True, officers searched his residence and did not recover any indicia of drug-dealing activity, such as baggies, drug notes, ledgers, or scales.¹⁴⁰ But they did find him in possession of cocaine base with a net weight of 19.20 grams.¹⁴¹ As discussed above, the Government's expert testified that this was a distribution-level quantity amounting to almost 200 dosage units. This testimony is “sufficient circumstantial evidence” for the jury to conclude that the drugs were possessed with intent to distribute. See United States v. Jones, 600 F.3d 985, 990 (8th Cir. 2010) (“The underlying theme of such cases is that defendant possessed a quantity which was more than he would possess for his own use.”). The Court therefore DENIES this aspect of Simmeon Hall's post-trial motion.

V. CONCLUSION.

Because there is sufficient evidence to support the jury's verdicts on all counts against all Defendants, and because there is no basis to grant a new trial, the Court DENIES the post-trial motions filed by Defendants Simmeon Hall (ECF 685), Lewis (ECF 686), White (ECF 687), Houston (ECF 688), and Deaguise Hall (ECF 689).

IT IS SO ORDERED.

FOOTNOTES

1.   (ECF 324.)

2.   (ECF 330.)

3.   (Id.)

4.   (ECF 476.)

5.   (ECF 612; see also ECF 667, pp. 165–200.)

6.   (ECF 667, p. 199.)

7.   (ECF 622.)

8.   (Id.)

9.   The firearm possession charge against Houston was identified as Count 3 in the Second Superseding Indictment (ECF 324, p. 15), but the Court renumbered it at trial as “Count 2” to avoid juror confusion. The original Count 2 was against Defendant Rasheem Damonte Bogan, who is not scheduled to go to trial until November 2024, and the Court preferred not to have gaps in the numbering of counts. Similar changes were made to charges against White, Deaguise Hall, and Simmeon Hall.

10.   (E.g., ECF 659, pp. 13–14.)

11.   (Id., pp. 13–14, 22, 174.)

12.   (Id., pp. 91–92.)

13.   (Id., pp. 92, 198, 202, 155.)

14.   (Id., p. 92.)

15.   (E.g., id., pp. 17–20, 107, 127–28, 155.)

16.   (ECF 664, p. 74.)

17.   (E.g., Govt. Ex. 733A, p. 55; ECF 659, pp. 171, 189–90 (testimony from Detective Whitcomb regarding Govt. Ex. 638, which shows hand signs associated with Fifth Street), 204–05 (testimony from Detective Whitcomb regarding Govt. Ex. 744, which is a post to Lewis's Facebook page stating “Never changed on my gang” with pictures of alleged Fifth Street members); see also infra note 18.)

18.   (E.g., ECF 659, pp. 108 (“Don't tell.”), 206–07 (Detective Whitcomb testimony regarding Govt. Ex. 720, which is a post to Deaguise Hall's Facebook page about “snitching”); ECF 664, p. 23; ECF 663, p. 79 (Detective Butt testimony regarding Govt. Ex. 730, which consists of Facebook posts on Houston's account telling others not to cooperate with police).)

19.   (E.g., ECF 659, pp. 108–109, 113; ECF 664, p. 121.)

20.   (E.g., ECF 659, pp. 110, 198–99 (Detective Whitcomb testimony regarding Govt. Ex. 637, which shows Devell Lewis with other Fifth Street members making Fifth Street hand signals and one person wearing a “Fifth Street Mafia” shirt); ECF 658, pp. 167 (Detective Butt testimony regarding Govt. Ex. 717, which shows Deaguise Hall holding up four fingers on one hand and the middle finger on the other in a picture with Simmeon Hall and Rasheem Bogan), 169 (Detective Butt testimony regarding Govt. Ex. 741, which shows Devell Lewis holding up four fingers on one hand and the middle finger on the other), 171–72 (Detective Butt testimony regarding Govt. Ex. 772, which shows Don White and others holding up four fingers on one hand and the middle finger on the other), 196 (describing tattoos saying “Kion Boys,” “Fifth Street,” and “Rock Town”); ECF 660, pp. 109 (Detective Girskis testimony regarding Govt. Ex. 775, which shows White, Houston, Simmeon Hall, and Deaguise Hall together), 111 (Detective Girskis testimony regarding Govt. Ex. 776, which shows White, Simmeon Hall, and Raheem Houston together).)

21.   (E.g., ECF 658, pp. 175 (Detective Butt testimony regarding Govt. Ex. 793, which is a video posted to Don White's Facebook page on March 19, 2020, honoring deceased alleged Fifth Street member Andrell Hearn, who died in 2006), 177–79 (Detective Butt testimony regarding Govt. Ex. 780, which is a photo of Houston, Deaguise Hall, Simmeon Hall, and White, among others, paying homage to deceased Fifth Street member Michael Collier), 180 (Detective Butt testimony regarding Govt. Ex. 715, which is a social post dated April 12, 2020, containing images paying homage to Michael Williams); ECF 659, pp. 193–95 (Detective Whitcomb testimony regarding Govt. Ex. 636, which is a social media post honoring deceased alleged Fifth Street member Kion Lewis), 195–96 (Detective Whitcomb testimony regarding Govt. Ex. 747, which is a photograph of Devell Lewis paying homage to Michael Collier and Michael Williams); ECF 660, p. 130 (Detective Girskis testimony regarding White's tattoo saying “Rest in Peace” in reference to either Michael Collier or Michael Williams).)

22.   (E.g., ECF 659, p. 107; Govt. Ex. 733A, pp. 29–31.)

23.   (E.g., ECF 659, pp. 110–11, 265–68.)

24.   (E.g., id., pp. 100–04; ECF 661, pp. 197–98, 235–38; Govt. Exs. 207, 209A, 510–14, 615.)

25.   (E.g., ECF 660, pp. 107–08, 131–33.)

26.   (ECF 658, pp. 64–65, 175, 226.)

27.   (Id., pp. 70, 227–28; Govt. Ex. 661.)

28.   (ECF 658, p. 177; ECF 659, pp. 23–24.)

29.   (ECF 666, pp. 172–74.)

30.   (ECF 659, pp. 265–66.)

31.   “Dae Dae” is a reference to alleged Savage Life member Damien Howard, who was shot and killed in January 2012. (ECF 658, p. 180.) It is unclear whether the shooter was affiliated with Fifth Street. (ECF 659, p. 27.)

32.   (ECF 659, pp. 264–66.)

33.   (Id., pp. 267–68.)

34.   (Id., pp. 268–69.)

35.   (Id., pp. 269–71.)

36.   (ECF 660, pp. 18–19; Govt. Exs. 201–02, 682.)

37.   (ECF 660, pp. 138–39, 160–61, 187–88; ECF 661, pp. 17–18, 24–25, 76; ECF 663, p. 62; ECF 664, pp. 26–28; Govt. Exs. 203, 508–09, 612.)

38.   (ECF 661, pp. 27–31.)

39.   (Id., pp. 89–90; Govt. Ex. 205.)

40.   (ECF 661, pp. 98–99; Govt. Ex. 206.)

41.   (ECF 664, p. 25.)

42.   (ECF 663, pp. 72–97; Govt. Ex. 733A.)

43.   (ECF 663, p. 82; Govt. Ex. 736A.)

44.   (E.g., ECF 663, pp. 62–63 (testimony regarding Govt. Ex. 407, which included texts from Devell Lewis about the May 23 shootings), 66–67 (testimony regarding Govt. Ex. 422, a screenshot found on Don White's phone of a social media post saying there would be “no passes” for members of rival groups).)

45.   (Govt Ex. 733A, pp. 72, 79.)

46.   (ECF 664, pp. 30–32.)

47.   The record is unclear as to whether Houston was at Necker's.

48.   (Id., pp. 33–34; Govt. Exs. 510–14.)

49.   (ECF 664, pp. 33–34, 36–37; ECF 661, pp. 139–40, 161–62; Govt. Exs. 207, 510–14.)

50.   (ECF 661, pp. 193, 217–18, 231–32.)

51.   (Id., pp. 193–97.)

52.   (Id., p. 197.)

53.   (ECF 664, p. 40.)

54.   (ECF 661, pp. 197–98, 235–38; ECF 662, pp. 162, 205–06; Govt. Exs. 209A, 209B, 209D.)

55.   (ECF 661, p. 245; ECF 662, pp. 60, 161.)

56.   (ECF 661, pp. 268, 271–74; ECF 662, pp. 45–46, 49–50; Govt. Exs. 519–20.)

57.   (ECF 662, pp. 51, 53, 62–75; Govt. Exs. 110–12, 210–11.)

58.   (ECF 662, pp. 243–47; ECF 663, pp. 25, 27–28, 30–32; Govt. Ex. 208.)

59.   (ECF 663, pp. 54–55.)

60.   (E.g., ECF 666, pp. 199–200; ECF 664, pp. 41–42.)

61.   (ECF 665, pp. 25–29, 50–55, 73, 76–85, 195; Govt. Exs. 642–45.)

62.   (ECF 689, p. 14.)

63.   (ECF 686, p. 33.)

64.   (ECF 690.)

65.   (ECF 687, p. 1.)

66.   (See ECF 577.)

67.   (ECF 658, p. 15.)

68.   (ECF 655, pp. 4–6.)

69.   (Id.)

70.   (ECF 560, pp. 1–2.)

71.   (ECF 657, pp. 177–79.)

72.   (Id.)

73.   (Id., pp. 203–05.)

74.   (Id., p. 205.)

75.   (ECF 655, pp. 42–48.)

76.   (ECF 560, pp. 1–2.)

77.   (ECF 657, pp. 19–20.)

78.   It is unclear whether the other four Defendants join this aspect of Houston's motion for judgment of acquittal or new trial. Those Defendants likely did not need to join Houston's argument in order to have preserved the issue for appeal. For this reason, and because the analysis does not vary from one Defendant to the next anyway, this section applies with equal force to all five Defendants.

79.   (ECF 688-1, pp. 13–16.)

80.   (ECF 664, pp. 40–41.)

81.   (Id., pp. 41–43.)

82.   (ECF 688-1, p. 15.)

83.   (E.g., ECF 658, pp. 116–17, 123–25; ECF 659, pp. 210–11.)

84.   (E.g., Govt. Exs. 511–12.)

85.   (E.g., ECF 662, p. 50.)

86.   (ECF 664, p. 41.)

87.   (ECF 663, pp. 71, 255; Govt. Ex. 434.)

88.   (ECF 663, pp. 256–59; Govt. Exs. 11, 682.)

89.   (ECF 664, pp. 14, 38.)

90.   (ECF 660, p. 121.)

91.   (ECF 666, pp. 220–23; Govt. Ex. 748.)

92.   (Govt. Exs. 511–12.)

93.   (ECF 685-1, pp. 17–18; ECF 686, p. 33; ECF 687, p. 1; ECF 689, pp. 14–15; ECF 690.)

94.   (ECF 685-1, p. 18.)

95.   (ECF 664, p. 138.)

96.   (Id., pp. 157–59.)

97.   (ECF 543; ECF 547; ECF 560, p. 5.)

98.   (ECF 560, p. 5.)

99.   (ECF 689, p. 15; ECF 687, p. 1; ECF 690.)

100.   The Court does not recall any Defendant asking for in camera review, nor is the Court able to locate anything in the record reflecting such a request.

101.   (ECF 685-1, pp. 15–17; ECF 689, p. 15; ECF 687, p. 1.; ECF 690; see also ECF 330 (pretrial ruling denying motion to sever).)

102.   (ECF 615, p. 12 (Final Instruction No. 11).)

103.   Pinkerton v. United States, 328 U.S. 640, 646 (1946).

104.   (ECF 685-1, pp. 18–19.)

105.   (ECF 615, p. 23.)

106.   (ECF 615, pp. 16–17.)

107.   (Id., p. 16.)

108.   (Id., p. 17.)

109.   (See ECF 667, p. 214.)

110.   (ECF 667, pp. 211–15.)

111.   (See id.)

112.   (ECF 781, pp. 11–12.)

113.   (Id.)

114.   (Govt. Ex. 521.)

115.   (ECF 615, p. 15 (Instruction No. 13).)

116.   (ECF 598.)

117.   (ECF 603.)

118.   (ECF 622, p. 3.)

119.   (ECF 665, pp. 106–07.)

120.   (Id., pp. 116, 120–21; Govt. Exs. 224, 630.)

121.   (ECF 665, pp. 112–16, 122.)

122.   (Id., pp. 123–24, 132.)

123.   (Id., pp. 143–44.)

124.   (Id., pp. 145–46.)

125.   (Id., p. 146.)

126.   (Id., pp. 147–48.).

127.   (Id., pp. 148–49; ECF 667, pp. 51–52.)

128.   (ECF 665, pp. 152–53; Govt. Ex. 631.)

129.   (ECF 665, pp. 107–09, 112, 117.)

130.   (Id., p. 121; Govt. Ex. 630.)

131.   (ECF 665, pp. 112–16, 122.)

132.   (Id., pp. 123–24.)

133.   (ECF 660, pp. 49–50.)

134.   (Id., p. 49.)

135.   (Id., p. 50.)

136.   (Id., p. 73; ECF 666, p. 105.)

137.   (ECF 660, pp. 54–56.)

138.   (Id., p. 90; ECF 665, pp. 123–24, 132.)

139.   (ECF 665, pp. 146–47.)

140.   (ECF 665, pp. 164–65.)

141.   (Id., pp. 152–53.)

STEPHEN H. LOCHER U.S. DISTRICT JUDGE