         Case: 17-10346   Date Filed: 08/11/2020   Page: 1 of 27




                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 17-10346
                    ________________________

             D.C. Docket No. 8:12-cr-00205-EAK-MAP-4



UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus

CHARLIE L. GREEN,
NATHANIEL HARRIS,
JERRY W. GREEN, JR.,
NAPOLEON HARRIS,
COREY DEONTA HARRIS,
DEONTE JAMAL MARTIN,


                                                     Defendants-Appellants.

                    ________________________

             Appeals from the United States District Court
                  for the Middle District of Florida
                    ________________________

                          (August 11, 2020)
                Case: 17-10346       Date Filed: 08/11/2020       Page: 2 of 27




Before WILSON and GRANT, Circuit Judges, and HINKLE,* District Judge.

WILSON, Circuit Judge:

       This appeal arises out of the convictions of Charlie Green, Napoleon Harris,

Nathaniel Harris, Jerry Green, Corey Harris, 1 and Deonte Martin—a group of

brothers, relatives, and friends who operated a drug-trafficking organization in

Bradenton, Florida. Members of the group used and carried guns; kidnapped, beat,

and murdered people; and tampered with witnesses of their crimes. Most of the

appellants were convicted of participating in a racketeering conspiracy under the

Racketeer Influenced and Corrupt Organizations (RICO) Act and a drug-

trafficking conspiracy, as well as gun crimes and other crimes. The appellants

raise various challenges related to their convictions, their sentences, and various

decisions the district court made throughout the pre-trial and trial process.

       Two issues warrant special attention: whether RICO conspiracy qualifies as

a crime of violence under 18 U.S.C. § 924(c)—an issue of first impression in the

Eleventh Circuit—and whether Corey’s sentence is procedurally and substantively

reasonable. Because we hold that RICO conspiracy does not qualify as a crime of



       *
          Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
        1
          To avoid confusion, we refer to the appellants with the last names “Green” and “Harris”
by their first names.
                                                2
              Case: 17-10346     Date Filed: 08/11/2020   Page: 3 of 27



violence under § 924(c), we vacate the appellants’ § 924(c) convictions and

sentences, and we remand to the district court for resentencing. And because we

determine that Corey’s sentence was procedurally unreasonable, we vacate his

sentence and remand for resentencing. We affirm as to the remaining issues.

                                  BACKGROUND

      Napoleon, Nathaniel, and Charlie are brothers. Together with friends and

relatives such as Corey, Jerry, and Martin, they made up a “crew” that, starting in

at least the mid-2000s, sold crack cocaine, powder cocaine, marijuana, heroin, and

other drugs throughout Bradenton, Florida. The appellants and others prepared,

packaged, and distributed drugs out of various trap houses, and members of the

crew sold drugs for and with each other, relying on an intertwined network of

sellers. To establish the crew’s dominance, further its drug-trafficking operation,

eliminate competition, and avoid prosecution, members of the crew shared and

used guns, vehicles, and cell phones; fled from law enforcement; and participated

in a myriad of violent acts, including kidnappings, attempted murders, and murders

spanning from April 2007 to August 2013.

       The appellants were indicted for 28 counts of RICO conspiracy, conspiracy

to distribute controlled substances, using a firearm during and in relation to various

crimes of violence, and other related drug and firearm offenses. Following a trial,

a jury convicted each defendant on various counts. This appeal followed.

                                          3
              Case: 17-10346     Date Filed: 08/11/2020    Page: 4 of 27



                                   DISCUSSION

                   I.    RICO Conspiracy as a “Crime of Violence”

      Napoleon, Nathaniel, Charlie, Jerry, and Martin were convicted of various

§ 924(c) counts for using, carrying, and discharging a firearm during and in

relation to the RICO conspiracy charged in Count One. They challenge their

convictions and the accompanying sentences under § 924(j), claiming that RICO

conspiracy is not a “crime of violence” under § 924. Section 924(c)(3) defines a

“crime of violence” as a felonious offense:

      (A) [that] has as an element the use, attempted use, or threatened use of
         physical force against the person or property of another, or

      (B) that by its nature, involves a substantial risk that physical force against
         the person or property of another may be used in the course of
         committing the offense.

18 U.S.C. § 924(c)(3). We typically refer to § 924(c)(3)(A) as the elements clause

and to § 924(c)(3)(B) as the residual clause. The Supreme Court recently

invalidated the residual clause as unconstitutionally vague. See United States v.

Davis, 588 U.S. __, 139 S. Ct. 2319, 2323–24, 2336 (2019). Therefore, we must

determine whether RICO conspiracy qualifies as a crime of violence under the

elements clause.

      “We apply the categorical approach when determining whether an offense

constitutes a ‘crime of violence’ under the elements clause,” meaning “we look to


                                          4
                Case: 17-10346       Date Filed: 08/11/2020       Page: 5 of 27



whether the statutory elements of the predicate offense necessarily require, at a

minimum, the threatened or attempted use of force.” Brown v. United States, 942

F.3d 1069, 1075 (11th Cir. 2019) (per curiam). In Brown, this court evaluated

whether conspiracy to commit Hobbs Act robbery is a crime of violence under

§ 924(c)(3)’s elements clause. Id. at 1075–76. We noted, “The elements of

conspiracy center on a defendant’s agreement to commit a crime and do not

require the government to prove the elements of the underlying substantive crime

itself.” Id. at 1075. Applying the categorial approach to the elements of a

conspiracy to commit Hobbs Act robbery,2 we concluded that conspiracy to

commit Hobbs Act robbery does not qualify as a crime of violence under

§ 924(c)(3)’s elements clause. Id. We reasoned:

       Neither an agreement to commit a crime nor a defendant’s knowledge
       of the conspiratorial goal necessitates the existence of a threat or
       attempt to use force. The same goes for the final element—a
       defendant’s voluntary participation that furthers the goal of committing
       Hobbs Act robbery—because a defendant’s voluntary participation
       may manifest itself in any one of countless non-violent ways.

Id.

       RICO conspiracy is virtually indistinguishable from a conspiracy to commit

Hobbs Act robbery. “To establish a RICO conspiracy violation under 18 U.S.C.


       2
         The elements of a conspiracy to commit Hobbs Act robbery include: “(1) two or more
people, including the defendant, agreed to commit Hobbs Act robbery; (2) the defendant knew of
the conspiratorial goal; and (3) the defendant voluntarily participated in furthering that goal.”
Brown, 942 F.3d at 1075.
                                                5
              Case: 17-10346    Date Filed: 08/11/2020    Page: 6 of 27



§ 1962(d), the government must prove that the defendants objectively manifested,

through words or actions, an agreement to participate in the conduct of the affairs

of the enterprise through the commission of two or more predicate crimes.” United

States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995) (per curiam) (emphasis

added) (internal quotation mark omitted). RICO conspiracy requires neither proof

of the commission of an overt act nor proof of an agreement to commit individual

predicate acts. Id.; see United States v. Pepe, 747 F.2d 632, 659 (11th Cir. 1984).

A RICO conspiracy thus differs from a regular conspiracy because it “may

encompass a greater variety of conduct.” Pepe, 747 F.2d at 659. So as with a

conspiracy to commit Hobbs Act robbery, the elements of a RICO conspiracy

focus on the agreement to commit a crime, which does not “necessitate[] the

existence of a threat or attempt to use force.” Brown, 942 F.3d at 1075. Therefore,

RICO conspiracy does not qualify as a crime of violence under § 924(c)(3).

      Given the evolution of the law since the parties submitted their briefs, the

government conceded at oral argument that RICO conspiracy generally does not

qualify as a crime of violence under § 924(c). But the government made one

last-ditch effort, arguing that the appellants were convicted of a different crime—

“aggravated RICO conspiracy”—which, according to the government, does qualify

as a crime of violence. The argument is this: 18 U.S.C. § 1963(a), which

establishes statutory maximum sentences for § 1962 offenses, adds an element to a

                                         6
                Case: 17-10346      Date Filed: 08/11/2020       Page: 7 of 27



typical § 1962(d) violation where the violation is based on a racketeering activity

that carries a maximum penalty of life imprisonment. In other words, an individual

commits aggravated RICO conspiracy by (1) “objectively manifest[ing], through

words or actions, an agreement to participate in the conduct of the affairs of the

enterprise through the commission of two or more predicate crimes” (2) “for which

the maximum penalty includes life imprisonment.” Cf. §§ 1962(d), 1963(a);

Starrett, 55 F.3d at 1543.

       Assuming without deciding that a distinct crime of aggravated RICO

conspiracy exists, there is nothing in the indictment or elsewhere to indicate that

these appellants were charged with and convicted of it. Neither the indictment nor

the jury instructions referenced § 1963(a)—and the first time the government

proposed that these appellants were charged or tried for a crime other than

conventional RICO conspiracy was after the briefs were filed, in a “supplemental”

authority letter. Thus, the indictment’s omission of any reference to aggravated

RICO conspiracy or § 1963(a) is not merely a “citation error” as contemplated by

Federal Rule of Criminal Procedure 7(c)(2). The government cannot salvage the

appellants’ § 924(c) convictions by reimagining the charged crimes. 3




       3
         Because the appellants were neither charged with nor convicted of aggravated RICO
conspiracy, we need not decide today whether it exists or whether it qualifies as a crime of
violence.
                                               7
              Case: 17-10346     Date Filed: 08/11/2020   Page: 8 of 27



                                II.    Corey’s Sentence

      Corey challenges his 120-year sentence as both procedurally and

substantively unreasonable. He argues that the district court procedurally erred by

failing to adequately explain its five-fold upward variance from the appropriate

guideline range. Further, he contends the district judge based the sentence on

clearly erroneous facts—namely, that Corey extended the overall conspiracy from

Bradenton into St. Petersburg and that he participated in the murder of Brenton

Coleman. He also claims his sentence is substantively unreasonable because it is

unjustly disproportionate to his codefendants’ sentences given his comparatively

minor role in the criminal activity.

      We review the reasonableness of a sentence for abuse of discretion. United

States v. Irey, 612 F.3d 1160, 1186, 1188–89 (11th Cir. 2010) (en banc). “To be

upheld on appeal, a sentence must be both procedurally and substantively

reasonable.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010).

We determine first whether the district court committed a “significant procedural

error,” and second whether the sentence was “substantively reasonable under the

totality of the circumstances.” United States v. Overstreet, 713 F.3d 627, 636

(11th Cir. 2013). A sentence can be procedurally unreasonable if the district court

improperly calculated the guideline range, failed to consider the 18 U.S.C.

§ 3553(a) factors, failed to adequately explain the sentence, or selected a sentence

                                          8
                Case: 17-10346    Date Filed: 08/11/2020    Page: 9 of 27



based on clearly erroneous facts. See Gall v. United States, 552 U.S. 38, 51

(2007).

      When pronouncing a sentence, the sentencing court need only set forth

enough to demonstrate that it “considered the parties’ arguments and ha[d] a

reasoned basis for exercising [its] . . . decisionmaking authority.” United States v.

Carpenter, 803 F.3d 1224, 1232 (11th Cir. 2015). If the district court decides

“after serious consideration that a variance is in order,” it should provide

compelling and complete justifications sufficient “to allow meaningful appellate

review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (internal

quotation marks omitted).

          A district court’s factual findings at sentencing—including its findings

about conduct for which the defendant was acquitted—need only be supported by a

preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1347–

48 (11th Cir. 2006). We review such findings for clear error, overturning a finding

only if a review of the evidence leaves us with “a definite and firm conviction a

mistake has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th

Cir. 2015). “Although review for clear error is deferential, a finding of fact must

be supported by substantial evidence.” United States v. Robertson, 493 F.3d 1322,

1330 (11th Cir. 2007). The district court may base factual findings on evidence

presented at trial, undisputed statements in the presentence report (PSR), or

                                            9
               Case: 17-10346       Date Filed: 08/11/2020      Page: 10 of 27



evidence presented at the sentencing hearing, and it may make reasonable

inferences from the evidence. See United States v. Chavez, 584 F.3d 1354, 1367

(11th Cir. 2009); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

       Corey pled guilty to three counts of distribution of cocaine base and was

convicted by the jury for one count of conspiracy to distribute and possess with

intent to distribute less than 50 kilograms of marijuana and less than 28 grams of

cocaine base. He was acquitted of the RICO conspiracy count and the § 924(c)

count regarding Coleman’s murder. 4 His PSR identified his total offense level as

40 and his criminal history category as IV, and it calculated his guideline range as

360 months to 1,440 months.5

       At his sentencing hearing, Corey informed the court that he had reached an

agreement with the government and probation to modify the guideline range in the

PSR. He explained that if the court accepted the modified range, it would resolve

all but one of his objections to the PSR—namely, his objection to the PSR’s

references to his involvement in the Coleman murder despite his acquittal on that

charge. The court read the revisions into the record, noting that the total offense

level would be reduced to 34 and the resulting guideline range would be reduced to


       4
          Corey, Napoleon, Charlie, and Martin were charged § 924(c) violations regarding
Coleman’s death. Only Martin was convicted.
        5
          Corey’s total offense level and criminal history category would ordinarily put the
guideline range at 360 months to life, but because the statutory maximum for each of Corey’s
counts is 30 years, his statutory maximum sentence is 1,440 months. See 21 U.S.C.
§ 841(b)(1)(C); U.S.S.G. § 5G1.2(d).
                                              10
             Case: 17-10346     Date Filed: 08/11/2020    Page: 11 of 27



210 to 262 months. The court confirmed that the agreement resolved all but one of

the objections to the PSR and gave Corey the opportunity to argue his outstanding

objection regarding the Coleman murder. The court overruled the objection,

adopted the guideline applications in the PSR, and then read the modification of

the total offense level and sentencing guideline into the record. Corey asked for a

downward variance from the agreed-upon guideline range, and the government

asked for a sentence at the high end of the 210-to-262-month range.

      The district court sentenced Corey to 1,440 months’ (120 years)

imprisonment, consisting of 360-month terms to run consecutively for each of his

four counts of conviction. In support of the sentence, the court found that Corey

had extended the conspiracy to St. Petersburg and participated in the Coleman

murder. Regarding the Coleman murder, the court stated:

      So I think the hold of that family in Bradenton was still strong with you,
      so strong that even though you left your cell phones in St. Petersburg, I
      think the testimony showed you came across that bridge, the Sunshine
      Skyway, and you didn’t come over for an evening of entertainment.
      You came over for a purpose, and I think there is enough evidence in
      the case—and I find specifically by a preponderance of the evidence
      that there is enough evidence in that case to support the sentence I’m
      about to give you.

      In its Statement of Reasons, the district court indicated that it had

determined the guideline range to be 210 to 262 months, and it had imposed a

sentence above the guideline range. It also identified Corey’s role in the Coleman

murder as an aggravating factor supporting the variance.
                                          11
              Case: 17-10346     Date Filed: 08/11/2020    Page: 12 of 27



      Four days later, the district court conducted a supplemental sentencing

proceeding. The court stated that it had treated the parties’ agreement as a joint

motion for a downward variance and rejected it. It explained it had brought the

parties back so Corey could address his other objections to the PSR—which had

not been discussed during the initial sentencing hearing—to prevent any waiver

issue on appeal. Corey responded that he thought the court had accepted the

agreed guideline range calculation but had chosen to impose an upward variance.

The government and probation indicated they had the same impression. Given the

court’s apparent recharacterization of the parties’ agreement, Corey’s counsel

sought clarification four times regarding the guideline range on which the court

relied in imposing the sentence. The court never directly answered the question; it

merely postulated, “If that’s what the record reflects to you, then it reflects that,”

while still suggesting that it treated the agreement as a request for a downward

variance. Corey never discussed his other objections to the PSR.

      By failing to clarify the applicable guideline range, the district court

inadequately explained Corey’s sentence. At the initial sentencing hearing, the

district court appeared to accept the agreed-upon guideline range of 210 to 262

months before upwardly departing to impose the statutory maximum sentence of

1,440 months—a nearly 550% increase from the high end of the guideline range.

The Statement of Reasons reflected as much. But at the supplemental sentencing

                                           12
              Case: 17-10346     Date Filed: 08/11/2020    Page: 13 of 27



hearing several days later, the court suggested it had treated the parties’ agreement

as a motion for a downward variance that the court had denied. By never

clarifying the guideline range it had relied upon despite Corey’s repeated requests

for clarification, the district court left a conflicting, unresolved record as to Corey’s

applicable guideline range.

      Further, although the applicable guideline range remained unclear, the

district court’s finding that Corey participated in the Coleman murder was clear—

and clearly erroneous. The district court found that Corey left his cell phones in St.

Petersburg when he crossed the Sunshine Skyway bridge to participate in the

Coleman murder on August 1, 2013, but the evidence demonstrates this would

have been impossible. Toll booth records showed that Corey traveled south on the

Sunshine Skyway bridge towards Manatee County at approximately 12:30 p.m.

Cell phone tower records for the two cell phones attributed to Corey showed that

both cell numbers utilized cell towers in Manatee County during the early

afternoon, between 1:56 p.m. and 2:23 p.m. The cell numbers then began utilizing

cell towers back in Pinellas County again about 2:54 p.m., including the use of a

cell tower in St. Petersburg at about 8:06 p.m.—within moments of Coleman’s

murder about 25 miles away.

      If the cell phones remained at home while Corey traveled south over the

Sunshine Skyway at 12:30 p.m., they could not have been pinging cell towers in

                                           13
             Case: 17-10346     Date Filed: 08/11/2020    Page: 14 of 27



Manatee County between 1:56 p.m. and 2:23 p.m., and then in Pinellas County

from 2:54 p.m. to 8:06 p.m. In light of this stipulated cell phone evidence, the

evidence in the record does not substantially support the district court’s finding.

We are thus left with a firm conviction that the district court made a mistake by

finding that Corey left his cell phones at home and drove to Bradenton to commit

the Coleman murder.

      Because the district court failed to adequately explain Corey’s sentence and

relied on a clearly erroneous fact, it imposed a procedurally unreasonable sentence.

                              III.   All Remaining Issues

                                 A. Suppression Issues

      It goes without saying that the Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” Some of the appellants claim their Fourth

Amendment rights were violated, challenging the district court’s denial of their

motions to suppress. Nathaniel moved to suppress evidence gathered from

lawfully seized cell phones that law enforcement failed to return to him for four

years. Napoleon, Jerry, and Martin moved to suppress cell phone records

containing historical cell-site and real-time tracking data that law enforcement

acquired without a warrant but pursuant to state-court orders granted under Chapter

934 of the Florida Statutes, and consistent with the federal Stored Communications

                                          14
              Case: 17-10346      Date Filed: 08/11/2020   Page: 15 of 27



Act (SCA), 18 U.S.C. § 2703(d). When reviewing the denial of a motion to

suppress, we review the district court’s findings of fact for clear error and the

district court’s application of the law to fact de novo. United States v. Ramirez,

476 F.3d 1231, 1235 (11th Cir. 2007). We will address each suppression theory in

turn.

                             i.     Nathaniel’s Cell Phones

        Fourth Amendment protection does not extend to abandoned property.

United States v. Sparks, 806 F.3d 1323, 1341–42 (11th Cir. 2015), overruled in

part on other grounds by United States v. Ross, No. 18-11679, slip op. at 23 (11th

Cir. June 24, 2020) (en banc). We take an objective, common-sense approach to

assessing abandonment, focusing on whether the prior possessor “voluntarily

discarded, left behind, or otherwise relinquished his interest in the property in

question” in light of his “statements, acts, and other facts.” Id. at 1342.

        Nathaniel argues that law enforcement violated his Fourth Amendment

rights by keeping his cell phone—which was lawfully seized incident to an arrest

for driving with a suspended license in 2010—for four years without returning it to

him. So, in his eyes, any evidence found on the phone after the federal

government took it and executed a search warrant on it should have been

suppressed as fruits of an unreasonable seizure.




                                           15
             Case: 17-10346     Date Filed: 08/11/2020   Page: 16 of 27



      The district court found, however, that Nathaniel had abandoned his interest

in the phone. The record supports that finding. About 48 hours after Nathaniel’s

arrest, law enforcement authorized release of the phone. Nothing in the record

supports Nathaniel’s unsworn assertions that he sought to recover the phone before

the federal government seized it under a valid search warrant. See Travaglio v.

Am. Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (“Statements by counsel in

briefs are not evidence.”). In other words, there is no evidence suggesting that

Nathaniel did or said anything over the course of four years to maintain his interest

in the phone. Thus, common sense indicates that Nathaniel “voluntarily discarded,

left behind, or otherwise relinquished his interest” in the phone. See Sparks, 806

F.3d at 1342. Because Nathaniel abandoned his interest in the phone, there was no

Fourth Amendment violation, and his motion to suppress was properly denied.

               ii.   Napoleon’s, Jerry’s, and Martin’s Cell Phone Data

      A warrantless search is “per se unreasonable under the Fourth Amendment.”

United States v. Steed, 548 F.3d 961, 967 (11th Cir. 2008) (per curiam). The

Supreme Court recently held in Carpenter v. United States that the acquisition of

historical cell-site records is a search under the Fourth Amendment, so the

government must obtain a warrant to access such records. 585 U.S. __, 138 S. Ct.

2206, 2217–21 (2018).




                                         16
              Case: 17-10346     Date Filed: 08/11/2020    Page: 17 of 27



      But evidence obtained in violation of the Fourth Amendment is not always

subject to exclusion. See Davis v. United States, 564 U.S. 229, 236 (2011). The

exclusionary rule is “a prudential doctrine created by the Supreme Court to compel

respect for the constitutional guaranty” and “deter future Fourth Amendment

violations.” United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013)

(alterations accepted) (internal quotation marks omitted) (quoting Davis, 564 U.S.

at 236). In other words, “[s]uppression is not an automatic consequence of a

Fourth Amendment violation,” but rather a “last resort, justified only where the

deterrence benefits of suppression outweigh the substantial social costs of ignoring

the reliable, trustworthy evidence bearing on guilt or innocence.” Id. (alteration

accepted) (internal quotation marks omitted); see Herring v. United States, 555

U.S. 135, 137 (2009). It follows that when officers act with “an objectively

reasonable good-faith belief that their conduct is lawful”—i.e., by acting in

reasonable reliance on a warrant, statute, or court order—the exclusionary rule

does not apply because there is little, if any, deterrence benefit in such

circumstances. See Davis, 564 U.S. at 238–39 (internal quotation marks omitted);

United States v. Leon, 468 U.S. 897, 918–22 (1984); United States v. Taylor, 935

F.3d 1279, 1289–90 (11th Cir. 2019), petition for cert. filed, (U.S. Feb. 6, 2020)

(No. 19-7581); United States v. Joyner, 899 F.3d 1199, 1204 (11th Cir. 2018) (per

curiam) (applying the good-faith exception to the exclusionary rule where the

                                          17
                Case: 17-10346       Date Filed: 08/11/2020        Page: 18 of 27



government obtained cell-site records pursuant to a court order issued under the

SCA pre-Carpenter).

       Napoleon, Jerry, and Martin argue that because acquisitions of historical

cell-site data and real-time tracking data are searches under the Fourth

Amendment, the government’s warrantless apprehension of such information

related to their cell numbers violated the Fourth Amendment and warranted

exclusion. The government responds that the defendants lack standing to seek

suppression of the data because they never established ownership or possession of

the relevant cell phones, and regardless, the good-faith exception to the

exclusionary rule applies.

       Assuming without deciding that the appellants have Fourth Amendment

standing, 6 the good-faith exception to the exclusionary rule applies here. The

officers reasonably relied on 2013 state-court orders issued under a Florida statute,

and consistent with the SCA, to acquire the defendants’ historical cell-site data and

real-time tracking data. As to historical cell-site data, there was no reason for



       6
          Fourth Amendment standing is prudential, not jurisdictional; therefore, we need not
address it if we can affirm on the merits. See Byrd v. United States, 584 U.S. __, 138 S. Ct.
1518, 1530 (2018) (“The concept of standing in Fourth Amendment cases can be a useful
shorthand for capturing the idea that a person must have a cognizable Fourth Amendment
interest in the place searched before seeking relief for an unconstitutional search; but it should
not be confused with Article III standing, which is jurisdictional and must be assessed before
reaching the merits.”); see also Ross, slip op. at 14–15 (bringing the Eleventh Circuit in line with
the Supreme Court’s precedent in Byrd).

                                                18
             Case: 17-10346      Date Filed: 08/11/2020   Page: 19 of 27



officers to believe the state-court orders were invalid under the Fourth

Amendment. At the time—five years before Carpenter was decided—there was

no reason for the officers to believe there was a reasonable expectation of privacy

to such records such that they would need a warrant supported by probable cause

to acquire them. Indeed, our court held in 2015 that no expectation of privacy to

such records existed. See United States v. Davis, 785 F.3d 498, 513 (11th Cir.

2015) (en banc), abrogated by Carpenter, 138 S. Ct. at 2217–19, 2221.

      And as to real-time tracking data, the officers likewise reasonably relied on

the state-court orders because there was no reason for the officers to believe they

were invalid. The question of whether acquiring such information constitutes a

search was unanswered in 2013 and remains unanswered today. See id. (noting

that United States v. Jones, 565 U.S. 400 (2012) held that a GPS tracker placed on

a private vehicle was a search because the tracker was inserted on private property,

not necessarily because real-time tracking intrudes on a reasonable expectation of

privacy); Carpenter, 138 S. Ct. at 2220 (“We do not express a view on matters not

before us: real-time [cell-site location information] or ‘tower dumps’ . . . .”). So

again, there was no reason for officers to believe in 2013 that there was a

reasonable expectation of privacy to those records such that they would need a

warrant to acquire them. Because the officers reasonably relied on the state-court

orders, little to no deterrent effect would have flowed from excluding the historical

                                          19
                Case: 17-10346        Date Filed: 08/11/2020       Page: 20 of 27



cell-site and real-time tracking evidence. 7 The motions to suppress were properly

denied.

                                    B. Peremptory Challenge

       Martin argues the district court violated his jury-trial right by denying his

request to exercise a peremptory strike. We review the procedure adopted by the

trial court to regulate the parties’ exercise of peremptory challenges for abuse of

discretion. United States v. Isom, 88 F.3d 920, 923 (11th Cir. 1996) (per curiam).

A trial court has “wide discretion in supervising the selection of jurors and

regulating the exercise of peremptory challenges.” United States v. Bryant, 671

F.2d 450, 455 (11th Cir. 1982). The trial court can require defendants to jointly

exercise their peremptory challenges. See id.; Fed. R. Crim. P. 24(b).

       At voir dire, the parties had agreed the defendants would jointly exercise

their peremptory challenges through Napoleon’s attorney. After the court had

empaneled the jury and moved to selecting alternates, Martin’s counsel attempted

to strike a juror seated on the regular panel. The court denied the requested strike.

The court did not abuse its discretion in doing so, as Martin’s requested strike was

made in contravention to the agreed voir dire procedure and after Napoleon’s

counsel had accepted the panel on the defendants’ behalf. See Bryant, 671 F.2d at


       7
          The appellants’ suggestion that the officers acted in bad faith by hiding their desire to
track the appellants’ movements is not well taken. The applications plainly referenced an intent
to use the requested records to locate the appellants.
                                                20
              Case: 17-10346     Date Filed: 08/11/2020    Page: 21 of 27



455 (finding no basis for defenant’s claim of prejudice in joint peremptory

challenge procedure where “[c]ounsel were informed prior to the beginning of voir

dire of the procedure to be used and voiced no objection”).

                   C. Evidence Admissions and Witness Testimony

      The appellants also raise numerous issues concerning the admission of

certain evidence and witness testimony: (1) whether the district court abused its

discretion by admitting evidence of Jerry’s other alleged crimes and bad acts; (2)

whether the district court abused its discretion by admitting evidence that Jerry had

referred to himself on social media as a “two-time murder winner”; (3) whether the

district court abused its discretion by admitting into evidence statements that Irma

Gonzalez and Lashawn White overheard; (4) whether the district court plainly

erred by preventing Martin from impeaching government witness Dequayl

Williams about the witness’s supposed participation in dog fighting; (5) whether

the district court abused its discretion by denying Napoleon’s motion for mistrial

after the court permitted the introduction of Corey’s guilty plea during trial; and (6)

whether the district court plainly erred in failing to declare a mistrial following a

prosecutor’s allegedly improper remark about Martin during closing argument.

      We review evidentiary rulings and the denial of a motion for mistrial for

abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1338, 1340 (11th

Cir. 2014). Where the appealing party failed to object at trial, we review for plain

                                          21
               Case: 17-10346       Date Filed: 08/11/2020       Page: 22 of 27



error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013); United

States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). We review erroneous

evidentiary rulings for harmless error. Allstate Ins. Co. v. Swann, 27 F.3d 1539,

1543 (11th Cir. 1994).

       Having reviewed the parties’ briefs and the record, we affirm the district

judge’s rulings. Any errors were harmless in light of the overwhelming evidence

supporting the jury’s verdicts. 8

                                      D. Cumulative Error

       Martin argues that the court’s denial of the use of available preemptory

challenges during voir dire, the denial of the opportunity to cross-examine

Williams, the admission of White’s hearsay testimony, and the prejudicial effect of

the government’s introduction of false testimony and improper remark during

closing argument, taken together, had “a more debilitating effect” when juxtaposed

against the dearth of evidence supporting his convictions. He thus claims that

cumulative error by the district court requires reversal of his convictions.

       Under the cumulative-error doctrine, the court “will reverse a conviction

where an aggregation of non-reversible errors yields a denial of the constitutional

right to a fair trial.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014).



       8
        As discussed below, the district court abused its discretion by admitting the hearsay
testimony regarding street rumors White overheard, but this error was harmless. See infra n.9.
                                               22
               Case: 17-10346       Date Filed: 08/11/2020       Page: 23 of 27



We assess cumulative-error claims by “first considering the validity of each claim

individually, and then examining any errors that we find in the aggregate and in

light of the trial as a whole to determine whether the appellant was afforded a

fundamentally fair trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132

(11th Cir. 2012). But if overwhelming evidence supports the jury’s verdict such

that any errors had no “substantial influence” on the verdict, then even multiple

errors can be rendered harmless. See United States v. Baker, 432 F.3d 1189, 1223–

25 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S.

813, 822 (2006).

       Here, Martin established no more than one error,9 which does not amount to

“the aggregation of ‘many errors’ that may require a reversal where the individual

errors do not.” See United States v. Ochoa, 941 F.3d 1074, 1106 (11th Cir. 2019).

Therefore, there was no cumulative error.

                                E. Sufficiency of the Evidence

       Several appellants also challenge the sufficiency of the evidence supporting

their convictions. Nathaniel, Jerry, and Napoleon challenge their convictions for


       9
          The only error we identify is the admission of White’s testimony concerning street
rumors she had heard that Martin and Eric Neri murdered Coleman. The government and the
district court treated the testimony as admissible under Federal Rule of Evidence 801(d)(2)(E)
based on the fact that White overheard the statements from co-conspirators, but the record
demonstrates that White repeatedly clarified that she never overheard any of the co-conspirators
attribute Coleman’s murder to Martin and Neri—she had only heard that through street rumors.
This error was harmless, though, given the substantial evidence supporting the jury’s findings
regarding Martin’s involvement in the Coleman murder.
                                               23
             Case: 17-10346     Date Filed: 08/11/2020   Page: 24 of 27



RICO conspiracy. Nathaniel, Jerry, and Corey challenge their convictions for drug

conspiracy. Jerry and Charlie challenge their § 924(c) convictions. Martin

challenges his felon-in-possession conviction as well as the jury’s special verdict

findings that he conspired to murder Coleman and did so. Jerry challenges the

jury’s special verdict finding that he murdered Carlos Jurado. Charlie also

challenges the jury’s special verdict findings that he kidnapped “T.S.,” murdered

Joseph Evans and Ceola Lazier, conspired to murder Coleman, and was

responsible for more than 100 kilograms of marijuana. And Nathaniel challenges

the reliability of the witness testimony supporting his convictions.

      We review de novo a denial of a motion for judgment of acquittal on

sufficiency of the evidence grounds, viewing the evidence in the light most

favorable to the government and resolving all reasonable inferences and credibility

determinations in the government’s favor. United States v. Capers, 708 F.3d 1286,

1296 (11th Cir. 2013). The jury’s verdict must be affirmed unless no reasonable

trier of fact could have reached a conclusion of guilt beyond a reasonable

doubt. See United States v. Foster, 878 F.3d 1297, 1304 (11th Cir. 2018). We

review the denial of a Federal Rule of Criminal Procedure 33 motion for new trial

based on a jury verdict against the weight of the evidence for abuse of discretion.

See United States v. Hunt, 526 F.3d 739, 744 n.1 (11th Cir. 2008).




                                         24
             Case: 17-10346     Date Filed: 08/11/2020     Page: 25 of 27



      The challenges to the § 924(c) convictions are moot given the vacatur of

those convictions. Having reviewed the parties’ briefs and the record, we affirm

the remaining convictions and findings as they are supported by more-than-

sufficient evidence. To the extent the appellants’ arguments challenge the

credibility of various witnesses, credibility determinations are exclusively within

the province of the jury. See United States v. Hernandez, 743 F.3d 812, 814 (11th

Cir. 2014) (per curiam). We may not revisit such determinations unless a witness’s

testimony is incredible as a matter of law, United States v. Thompson, 422 F.3d

1285, 1291–92 (11th Cir. 2005), and we have found no such testimony here.

                                F. Inconsistent Verdicts

      Jerry, Charlie, and Napoleon assert that they are entitled to relief because of

inconsistencies in their verdicts. Jerry argues that his conviction for the § 924(c)

crime associated with Lazier’s death is inconsistent with his acquittal for Lazier’s

murder. Charlie argues that the jury’s special verdict finding that he conspired to

murder Coleman is inconsistent with his acquittals for Coleman’s murder and the

associated § 924(c) charge. Napoleon argues that the jury’s special verdict finding

that he kidnapped Calvin Barnes and his conviction for the § 924(c) violation

associated with Demetrius Cunningham’s murder are inconsistent with his

acquittal for Cunningham’s murder. He also argues that his conviction for

knowingly possessing ammunition for use in the attempted murders of “C.P.” and

                                          25
             Case: 17-10346     Date Filed: 08/11/2020    Page: 26 of 27



“C.S.” is inconsistent with his acquittals for those attempted murders and their

associated § 924(c) charges.

      We review de novo whether inconsistent verdicts render a conviction

improper. United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). That

being said, inconsistent jury verdicts are generally insulated from review because

“a jury may reach conflicting verdicts through mistake, compromise, or lenity,” but

“it is impossible to determine whose ox has been gored.” See United States v.

Powell, 469 U.S. 57, 68–69 (1984); United States v. Mitchell, 146 F.3d 1338, 1344

(11th Cir. 1998) (internal quotation marks omitted). Thus, “as long as the guilty

verdict is supported by sufficient evidence, it must stand, even in the face of an

inconsistent verdict on another count.” Mitchell, 146 F.3d at 1345.

      Jerry and Napoleon’s challenges to their § 924(c) convictions are moot given

the vacatur of those convictions. But even assuming the other challenged guilty

verdicts are inconsistent, they must stand because—having reviewed the parties’

briefs and the record—we determine that sufficient evidence supports them.

                                  CONCLUSION

      For these reasons, we vacate Charlie Green’s, Napoleon Harris’s, Nathaniel

Harris’s, Jerry Green’s, and Deonte Martin’s § 924(c) convictions, and on that




                                          26
               Case: 17-10346       Date Filed: 08/11/2020       Page: 27 of 27



basis, their sentences. 10 We also vacate Corey Harris’s sentence as procedurally

unreasonable. We affirm on all other grounds, and remand to the district court for

further proceedings consistent with this opinion.




       10
          Charlie and Napoleon raise issues with their sentences, but because we vacate their
sentences, those issues are moot.

                                               27
