                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0668n.06

                                            Nos. 15-2280/2503

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                          FILED
                                                                                          Nov 30, 2017
UNITED STATES OF AMERICA                                        )                     DEBORAH S. HUNT, Clerk
                                                                )
        Plaintiff-Appellee,                                     )
                                                                )       ON APPEAL FROM THE
v.                                                              )       UNITED STATES DISTRICT
                                                                )       COURT FOR THE EASTERN
CHRISTOPHER ODUM; WILLIAM FRAZIER,                              )       DISTRICT OF MICHIGAN
                                                                )
        Defendants-Appellants.                                  )
                                                                )

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

        JULIA SMITH GIBBONS, Circuit Judge. This appeal arises from the convictions of

two members of the Phantom Motorcycle Club (“PMC”), William Frazier and Christopher

Odum. The government brought various charges against these two appellants and twelve others1

in a fifteen-count indictment. Although the case initially proceeded as a consolidated trial

against all defendants, Frazier and Odum were severed, and the case against them proceeded

separately. After a three-week trial, the jury convicted Frazier of two counts of assault with a

dangerous weapon in aid of racketeering, 18 U.S.C. § 1959(a)(3) (VICAR), and one count of use

and carry of a firearm during, and in relation to, a crime of violence, 18 U.S.C. § 924(c). Odum

was convicted of conspiracy to commit murder in aid of racketeering, 18 U.S.C. § 1959(a)(5)

(VICAR).




        1
          Six of the other defendants charged in this indictment are also before us on appeal. Though initially
consolidated for oral argument, we granted Frazier’s and Odum’s motion to separate cases for oral argument on
appeal.
Nos. 15-2280/2503, United States v. Odum, et al.


       Frazier and Odum raise numerous challenges to their convictions on appeal. Specifically,

they assert several claims of insufficient evidence to sustain their convictions as well as claims of

improper venue, the improper admission of hearsay statements, and due process violations for

failure to call a witness or provide certain evidence to the defense. For the reasons addressed

below, we affirm the convictions.

                                                 I.

       PMC is an “outlaw” motorcycle club that has existed since 1968. The club has chapters

in Michigan, Ohio, and six other states, and Detroit is the “mother” chapter. PMC has a

hierarchical structure, with a national president, vice president, and enforcers.        Below the

national officers are local chapters with presidents and vice presidents. Members wear leather

vests, known as “rags,” which are important symbols in motorcycle club culture. Rags display a

certain member’s club and that club’s territory, and PMC competes with rival outlaw clubs to be

the dominant club within certain territories.

       Frazier became the vice president of the Pontiac chapter of PMC in 2010 after

transferring from another PMC chapter. Frazier’s charges and convictions in this case relate to a

shooting that took place during a PMC anniversary gathering in Columbus, Ohio, in October

2012. After arriving in Columbus for the event, Frazier met up with other Phantoms—Vincente

Phillips and Maurice Williams—at the PMC clubhouse there. These three men, while wearing

their rags, went to get food at another club’s clubhouse. While there, a man wearing a third

club’s rags bumped into Williams, and Williams and Phillips began fighting with him and

another man who attempted to intervene. Seeing this altercation, Frazier fired two shots, hitting

Keith Foster and Shalamar Thompson, who were both members of the Zulus motorcycle club.

The PMC members then fled the scene and immediately returned to the PMC clubhouse to report




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Nos. 15-2280/2503, United States v. Odum, et al.


to PMC leaders what happened. It was later determined that Foster was the Zulus’s national

president. As a result, PMC leadership decided that the Pontiac chapter would have to pay for

the PMC national president, Antonio Johnson, to travel to Cleveland to meet with the Zulus in

order to prevent retaliation for the shooting. At trial, Williams, Phillips, and Phantom-turned

government informant Carl Miller all testified to this incident.

        Odum joined PMC’s Detroit chapter in 2011, and his charges stem from his involvement

in the later PMC conspiracy to murder members of a rival motorcycle club, the Hell Lovers.

After PMC member Steven Caldwell was murdered in September 2013, Johnson held a meeting

in which he called for retaliation against the Hell Lovers—the suspected culprits. Johnson

announced a plan to murder three Hell Lovers, which would cause other Hell Lovers to travel to

Michigan for the funerals, at which time PMC would attack and kill a large number of their

members. Although Odum did not attend this meeting, he was apprised of the plan. In a

recorded conversation with Miller, Odum stated that Johnson had given Odum the green light to

kill Hell Lovers. The plan was disrupted when the ATF and FBI executed search warrants on

Johnson’s and another Phantom member’s homes. These searches and the evidence uncovered

during them led to the indictment in this case.

                                                      II.

        Odum and Frazier first argue that there was insufficient evidence to convict them of

violent crimes in aid of racketeering under 18 U.S.C. § 1959 (“VICAR”).2 We hold there is

sufficient evidence to sustain these convictions.

        A district court’s refusal to grant a motion to acquit for insufficiency of the evidence is

reviewed de novo. United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016), cert.

        2
          Odum also argues that there was insufficient evidence to sustain his conviction for RICO conspiracy
under 18 U.S.C. § 1962(d). Odum was not charged with or convicted of RICO conspiracy, so we do not address this
argument.


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Nos. 15-2280/2503, United States v. Odum, et al.


denied, 137 S. Ct. 79 (2016). The standard is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). “Circumstantial evidence alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable hypothesis except that of guilt.” United States v.

Lowe, 795 F.3d 519, 522–23 (6th Cir. 2015) (quoting United States v. Algee, 599 F.3d 506, 512

(6th Cir. 2010)). This standard imposes “a very heavy burden” on the defendants. United States

v. Barnes, 822 F.3d 914, 919 (6th Cir. 2016) (quoting United States v. Abboud, 438 F.3d 554,

589 (6th Cir. 2006)).

       18 U.S.C. § 1959(a) prohibits committing or conspiring to commit certain violent crimes,

including murder and assault with a dangerous weapon, “for the purpose of gaining entrance to

or maintaining or increasing [one’s] position in an enterprise engaged in racketeering

activity . . . .” 18 U.S.C. § 1959(a). To establish a VICAR violation, therefore, the government

must show:

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

United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992); see also United States v. Fiel,

35 F.3d 997, 1003 (4th Cir. 1994). Frazier and Odum argue that the government failed to

establish several of these prongs.

                                               A.

       Odum first argues that there is insufficient evidence that PMC is an enterprise because

the government did not show that the purpose of the club was to commit crimes. Such a purpose,



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however, is not required.3            VICAR defines “enterprise” as including “any partnership,

corporation, association, or other legal entity, and any union or group of individuals associated in

fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or

foreign commerce.”4 18 U.S.C. § 1959(b)(2). Here, the government alleged an association-in-

fact enterprise, which requires only three structural features: “a purpose, relationships among

those associated with the enterprise, and longevity sufficient to permit these associates to pursue

the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).

        At trial, the government produced evidence that PMC’s purpose was to preserve and

protect the organization’s “power, territory, and reputation through the use of intimidation [and]

violence” by introducing testimony outlining the importance to PMC of earning respect as the

dominant motorcycle club.           They also presented evidence that PMC had the purpose of

enhancing its members’ money-making activities by showing that Phantoms assisted each other

in stealing and trafficking motorcycles. The required relationships were shown by testimony

regarding PMC’s by-laws, its hierarchical chain of command, and the importance of PMC

symbols, primarily members’ rags. Finally, in addition to testimony from multiple witnesses

who had been members of PMC for several years, the government introduced evidence that PMC

was founded in 1968, satisfying longevity. Based on all of this evidence, a rational juror could

conclude that PMC was an association-in-fact enterprise.




        3
           Odum also argues that the government failed to prove that PMC was an enterprise because it did not
demonstrate that PMC profited from members’ racketeering activities. However, a VICAR enterprise—like a RICO
enterprise—does not require such a showing. See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 257 (1994)
(“Nowhere in either § 1962(c) or the RICO definitions in § 1961 is there any indication that an economic motive is
required.”).
         4
            This definition is identical to the enterprise definition in RICO, except the interstate commerce
requirement in RICO is found in the substantive provision, while in VICAR it is found in the definition of the term
“enterprise.” 18 U.S.C. § 1962(c); 18 U.S.C. § 1959(b)(2). Therefore, cases assessing the existence of a RICO
enterprise also apply to the VICAR enterprise inquiry.


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Nos. 15-2280/2503, United States v. Odum, et al.


       Frazier also argues that the “enterprise” definition was not satisfied because the

government did not prove that his assault on the Zulus affected interstate commerce. The

government, however, does not have to prove that his particular assault affected interstate

commerce.     To meet the VICAR “affecting interstate commerce” requirement, it is only

necessary that the enterprise as a whole engaged in interstate commerce or that its activity

affected interstate commerce. See United States v. Riddle, 249 F.3d 529, 538 (6th Cir. 2001)

(RICO); United States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985) (RICO). Furthermore, if

an enterprise engages in economic activity, then even a de minimis connection to interstate

commerce is sufficient to meet the interstate prong of VICAR. Waucaush v. United States, 380

F.3d 251, 255–56 (6th Cir. 2004) (holding wholly intrastate, noneconomic activity must have a

significant effect on interstate commerce).

       There was sufficient evidence introduced at trial to support that PMC is a large,

multistate organization involved in interstate commerce. Phantoms traveled and communicated

across state lines for PMC activities, chapters paid money toward a national fund for travel for

the national officers, and PMC members transported stolen motorcycles across state lines.

Accordingly, a jury could rationally conclude from this and other evidence that PMC directly

engaged in or substantially affected interstate commerce.

                                               B.

       Odum and Frazier next argue that their VICAR convictions cannot stand because the

government did not prove that PMC was engaged in racketeering.

       Odum’s argument focuses largely on the government’s purported failure to demonstrate a

pattern of racketeering activity or to show “continuity.” This argument mischaracterizes the

applicable test. See U.S.C. 18 § 1959; 18 U.S.C. § 1961; see also H.J. Inc. v. N.W. Bell Tel. Co.,




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Nos. 15-2280/2503, United States v. Odum, et al.


492 U.S. 229, 239 (1989) (interpreting a pattern of racketeering activity to require a showing of

relationship and continuity). VICAR uses a specific definition for “racketeering activity” that is

separate from the definition for “pattern of racketeering activity” used in RICO. Compare 18

U.S.C. § 1959(b)(1) (cross-referencing 18 U.S.C. § 1961(1)), with 18 U.S.C. § 1961(5). In other

words, Odum’s argument goes to an inapplicable test and is therefore meritless.

       The relevant question, instead, is whether there is sufficient evidence that PMC as an

enterprise was engaged in racketeering activity. Frazier argues that there was not, because the

evidence at trial showed only that “individual members of the Phantoms had independently

engaged in some criminal activity.” CA6 R. 36, No. 15-2503, Frazier Br. at 55. This argument

is unpersuasive.     The government presented evidence that PMC members committed

racketeering activity “for the group and/or in concert with other members, or acted in ways that

contributed to the purposes of the group, or that were facilitated or made possible by the group.”

United States v. Feliciano, 223 F.3d 102, 117 (2d Cir. 2000); see also Fiel, 35 F.3d at 1004. The

jury heard testimony about PMC members traveling from Michigan to Ohio to intimidate a rival

motorcycle club, the Zulus, into permitting PMC to establish a chapter in Cleveland in 2009.

The jury heard testimony about armed Phantoms taking rags from leaders of the Omens

motorcycle club in 2010, taking the Black Bottoms motorcycle club’s rags in 2013, and

conspiring to murder members of the Hell Lovers motorcycle club in 2013, among other

concerted acts. These actions were all undertaken with instruction and encouragement from

PMC leadership and are only explained by reference to the goals of PMC as an enterprise. Thus,

there was sufficient evidence that PMC was an enterprise engaged in racketeering activity.

       Finally, Frazier argues that a VICAR conviction requires that the government prove the

defendant actually knew that the enterprise was engaged in racketeering activity—that is, an




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explicit knowledge-of-racketeering requirement. No court, however, has ever found such a

requirement. See, e.g., Concepcion, 983 F.2d at 381; Fiel, 35 F.3d at 1003 (listing elements for a

VICAR conviction that do not require the individual have knowledge of the racketeering).

Frazier bases his argument on Flores-Figueroa v. United States, in which the Supreme Court

interpreted a “knowing” mens rea element in an identity theft statute to apply to all elements of

the crime, using basic statutory interpretation. 556 U.S. 646, 650–54 (2009). This argument,

however, fails when applied to a VICAR charge.

       First, grafting Frazier’s knowledge-of-racketeering requirement onto the statute would

allow acts contemplated by VICAR to escape prosecution under the statute. For example,

VICAR covers violent acts committed for the “purpose of gaining entrance to . . . an enterprise

engaged in racketeering activity.” 18 U.S.C. § 1959(a). Were we to adopt Frazier’s position,

VICAR might not cover an individual who commits a violent crime as a part of gaining entry to

a gang but who does not have specific knowledge of the group’s racketeering activities. Second,

even if Frazier’s argument based on Flores-Figueroa were compelling, VICAR is not subject to

standard rules of statutory interpretation. Several courts have explicitly applied RICO’s “liberal

construction” rule to VICAR, as VICAR was enacted for a similar remedial purpose. See

Concepcion, 983 F.2d at 381 (“Congress intended RICO, which § 1959 complements, to ‘be

liberally construed to effectuate its remedial purposes.’” (quoting Sedima, S.P.R.L. v. Imrex Co.,

473 U.S. 479, 497–98 (1985))); United States v. Mapp, 170 F.3d 328, 336 (2d Cir. 1999) (noting

§ 1959’s purpose to advance the federal government’s strong interest in curbing organized

crime); see also, e.g., Ouwinga v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 794 (6th Cir.

2012) (noting RICO’s liberal construction requirement). We therefore do not adopt this new




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requirement and instead hold that proof that the enterprise as a whole engaged in racketeering

activity is sufficient to satisfy this prong.

                                                  C.

        Odum next argues that the government did not present sufficient evidence that he

committed a crime of violence. Odum’s alleged crime of violence for his VICAR charge is

conspiracy to commit murder, stemming from his participation in the PMC plot to murder

members of the rival motorcycle club, the Hell Lovers.

        Odum claims that the government failed to show that he agreed with anyone besides

Miller, who at the time was acting as a government informant, to kill Hell Lovers and therefore

cannot be guilty of conspiracy. See United States v. Deitz, 577 F.3d 672, 681 (6th Cir. 2009)

(“[The informant’s] status as a government agent prevents the government from proving the

existence of a conspiracy solely between [the defendant] and [the informant].”).               The

government, however, introduced evidence that Odum agreed with other Phantoms—particularly

Johnson—to murder Hell Lovers.            For example, in a recording introduced at trial, Odum

indicated that Johnson had given Odum the “green light” to move forward with the plan and had

ordered him to find a specific Hell Lover as a target. Therefore, viewing the evidence in the light

most favorable to the government, a rational juror could find that Odum agreed with someone

besides Miller to the Hell Lovers murder plot.

                                                  D.

        Lastly, Frazier argues that there was insufficient evidence that he shot the two Zulus in

Columbus for the purpose of “maintaining or increasing” his position within PMC.

        This Court has explained that “VICAR’s ‘purpose’ element is met if the jury could find

that an ‘animating purpose’ of the defendant’s action was to maintain or increase his position in




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Nos. 15-2280/2503, United States v. Odum, et al.


the racketeering enterprise.” United States v. Hackett, 762 F.3d 493, 500 (6th Cir. 2014).

Frazier argues that this was a “spontaneous fight” and not motivated by his membership in PMC.

A rational jury, however, could find that a defendant’s violent defense of fellow gang members

was undertaken to preserve standing in the gang when the gang “expected its members to

retaliate violently when someone disrespected or threatened a fellow member.” United States v.

Gills, No. 15-1613, 2017 WL 3328036, at *3 (6th Cir. Aug. 4, 2017). Here, although the

beginning of the fight may have been spontaneous, Frazier stated that he joined the fight because

he thought one of the other Phantoms had been knocked down. He leapt into action to support

his fellow Phantoms, and, after doing so, he immediately reported his actions to PMC leadership.

From this, a rational juror could find that Frazier was motivated by a purpose to maintain or

increase his position in PMC.

       Accordingly, because a rational juror could find that the government satisfied its burden

as to each prong of VICAR for both defendants, we conclude the VICAR convictions are

supported by sufficient evidence.

                                                III.

       Frazier also raises several challenges to his conviction under 18 U.S.C. § 924 for use and

carry of a firearm during, and in relation to, a crime of violence. This conviction stems from his

use of a firearm during the Columbus shooting. None of the arguments raised have merit.

       First, Frazier argues that because there was insufficient evidence to support his VICAR

conviction, the § 924 predicate crime of violence, his conviction must be reversed. As addressed

above, however, there was sufficient evidence to sustain the VICAR conviction.

       Frazier next challenges venue in the Eastern District of Michigan. Because he did not

raise this issue in the district court, it is waived. See United States v. Parlier, 570 F. App’x 509,




                                                 10
Nos. 15-2280/2503, United States v. Odum, et al.


513 (6th Cir. 2014); cf. United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005). Frazier

also argues that § 924 is “not a continuing offense that can rely on the existence of a Michigan-

based ‘enterprise.’” In United States v. Rodriguez-Moreno, however, the Supreme Court rejected

the argument that § 924 is a “point-in-time” offense and held that “[w]here venue is appropriate

for the underlying crime of violence, so too it is for the § 924(c)(1) offense.” 526 U.S. 275, 281–

82 (1999); see also United States v. Carpenter, 819 F.3d 880, 891 (6th Cir. 2016), cert. granted,

137 S. Ct. 2211 (2017). Here, the underlying crime was assault with a dangerous weapon in aid

of racketeering, and venue was therefore proper in the Eastern District of Michigan—the center

of the PMC enterprise.

       Finally, Frazier argues that § 924(c) is unconstitutionally vague as applied to him under

Johnson v. United States, 135 S. Ct. 2551 (2015).            His reply brief, however, rightly

acknowledges that “this Court’s precedent—namely, United States v. Taylor, 814 F.3d 340 (6th

Cir. 2016)—currently precludes his argument.” CA6 R. 62, No. 15-2503, Frazier Reply at 30.

In Taylor, this court squarely rejected the argument that Johnson invalidated § 924(c)(3)(B) as

unconstitutionally vague, and that decision forecloses his argument here. See Taylor, 814 F.3d at

376.

                                               IV.

       Frazier next argues that the court incorrectly allowed several hearsay statements to be

introduced at trial under a misapplication of the co-conspirator exception, Rule 801(d)(2)(E).

Whether the government met its burden in establishing the 801(d)(2)(E) elements is a

preliminary question of fact that is reviewed for clear error, while the ultimate decision to admit

the statements is reviewed for abuse of discretion. United States v. Martinez, 430 F.3d 317, 326

(6th Cir. 2005). This court reviews an evidentiary objection not raised at trial for plain error




                                                11
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only. United States v. Swafford, 385 F.3d 1026, 1028 (6th Cir. 2004). We hold that the court did

not err in admitting these statements.

       Although Frazier now challenges admission of over a dozen purportedly hearsay

statements, at trial he objected to only two. First, Frazier’s counsel objected to government

informant Miller’s testimony about conversations between Miller, Williams, Phillips, and Frazier

at the PMC clubhouse after the Columbus shooting, wherein they admit to the shooting. Second,

Frazier’s counsel objected to Williams’s testimony that the PMC Pontiac chapter was told that it

would have to pay for Johnson to travel to Cleveland to meet with the Zulus, because one of the

Columbus shooting victims was the Zulus national president. The district judge conditionally

admitted these statements under this Court’s precedent in United States v. Vinson, which allows

conditional introduction of purported co-conspirator statements, so long as the required elements

under Rule 801(d)(2)(E) are shown by a preponderance of evidence before the conclusion of the

government’s case in chief. 606 F.2d 149, 153 (6th Cir. 1979). At the close of the government’s

case, the district court then formally found that the 801(d)(2)(E) standard was met. Referencing

United States v. Enright, 579 F.2d 980 (6th Cir. 1978), the court stated, “I just want to formalize

the Enright findings, that the statements made were in furtherance of the conspiracy that dealt

with co-conspirator statements and, therefore, are admissible based on my findings of the

evidence in the case.” DE 717, Trial Tr. Vol. 12, Page ID 9787.

       A statement that would otherwise be hearsay may be admitted under Rule 801(d)(2)(E) if

the court finds to a preponderance of the evidence that there was a conspiracy involving the

declarant and the defendant and that the statement was made in the course of and in furtherance

of that conspiracy. Fed. R. Evid. 801(d)(2)(E). Frazier argues that because the government did

not demonstrate he was a participant in a RICO conspiracy under 18 U.S.C. § 1962(d), there was




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no support for the district court’s finding that he was involved in a conspiracy under Rule

801(d)(2)(E). However, the government need not prove a full-fledged RICO conspiracy meeting

all of the elements of § 1962(d) to satisfy the co-conspirator statement hearsay exception in Rule

801(d)(2)(E). Co-conspirator statements are admissible even when conspiracy has not been

formally charged.5 United States v. Blankenship, 954 F.2d 1224, 1231 (6th Cir. 1992). The

question is instead whether the sum of evidence at trial indicated to a preponderance that the

statements were made during and in furtherance of any ongoing conspiracy. See id. We find

that it did.

           Frazier was an active member of PMC, and the Columbus shooting was a direct result of

Frazier’s involvement in PMC’s racketeering activity.                        The first challenged statements,

Williams’s and Phillips’s accounts of the Columbus shooting, were made to PMC leadership for

the purposes of determining steps that PMC needed to take to avert retaliation from the Zulus.

Similarly, the second challenged testimony—the statements by Phantom members that the

person shot in Columbus was the national president of the Zulus—was a part of the ongoing

attempt to manage the fallout from the Columbus shooting. A statement “made to apprise a

coconspirator of the progress of the conspiracy, to induce his continued participation, or to allay

his fears” is made in furtherance of the conspiracy. Martinez, 430 F.3d at 327. Therefore, it was

not clear error for the district court to conclude that PMC members’ reports and discussion of

these rivalries were made during and in furtherance of the conspiracy.

           Frazier next argues that dozens of recorded of conversations between Miller and other

PMC members relating to a shooting in September 2013 and the plot to murder members of the

Hell Lovers were inadmissible hearsay. Frazier’s counsel, however, affirmatively stated “no

objection” to every single recording he now challenges when each was introduced at trial.
5
    Moreover, Frazier was charged with (and later convicted of) violent crimes in aid of racketeering.


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Frazier’s attorney also did not object to other statements Frazier now challenges: testimony

regarding the origin of the gun Frazier used in the Columbus shooting and Miller’s testimony

that Johnson told other Phantoms to beat up Hell Lovers in January 2013. As such, we review

admission of these statements for plain error only. Swafford, 385 F.3d at 1028.

       Plain error arises “only in exceptional circumstances and only where the error is so plain

that the trial judge and prosecutor were derelict in countenancing it.” United States v. Slone, 833

F.2d 595, 598 (6th Cir.1987) (quotations omitted). This standard requires “(1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Maliszewski, 161 F.3d 992, 1003

(6th Cir. 1998) (quoting United States v. Dedhia, 134 F.3d 802, 808 (6th Cir. 1998)). As to the

recordings, Frazier did not merely neglect to object to their introduction—he affirmatively

consented. Therefore, the court did not commit error in allowing the recordings to be introduced

against Frazier. See United States v. Olano, 507 U.S. 725, 732–33 (1993) (“Deviation from a

legal rule is ‘error’ unless the rule has been waived.” (emphasis added)); United States v. Soto,

794 F.3d 635, 655 (6th Cir. 2015) (“First, there must be an error or defect . . . that has not been

intentionally relinquished or abandoned, i.e., affirmatively waived by the appellant.” (quoting

Puckett v. United States, 556 U.S. 129, 135 (2009))).

       As for the remaining challenged statements, it is enough to say that they did not affect

Frazier’s substantial rights.   To affect substantial rights, the defendant must show that the

wrongly admitted evidence would have affected the outcome of the district court proceeding.

See Soto, 794 F.3d at 655. Here, evidence regarding the origin of the gun used by Frazier was

already elsewhere in the record. See Maliszewski, 161 F.3d at 1008 (6th Cir. 1998) (finding no

plain error when the admitted statement concerned “a minor point and was merely cumulative”).

Further, the statement regarding the plot to murder Hell Lovers was not directly related Frazier’s




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charges, and, as noted, there were already dozens of recordings in evidence outlining that PMC

plot. The district court did not commit plain error in allowing these statements to be introduced.

                                                  V.

          Lastly, Frazier claims that he was denied due process because the government chose not

to call shooting victim Foster as a witness at trial and failed to turn over a shell casing and spent

bullet from the shooting scene. Neither claim has merit.

                                                  A.

          Frazier first argues that his constitutional due process rights were violated because the

government did not call Foster to testify after the government listed him on a witness list. Foster

had given previous statements to the police reporting that his attacker was African American.

Frazier is Caucasian. The government had originally planned to call Foster, but circulated a final

witness list three days before trial without Foster included. Frazier argues that by removing

Foster at the last minute, the government denied him a meaningful opportunity to present a

complete defense.

          The constitutional guarantee to “a meaningful opportunity to present a complete defense”

prevents the government from undertaking certain behavior to exclude or suppress competent,

reliable evidence related to defendants’ innocence. See Crane v. Kentucky, 476 U.S. 683, 690

(1986).     That concern, however, is not implicated here for several reasons.              First, the

government’s decision not to call a witness known to the defense does not constitute evidence

suppression. See United States v. Vasquez, 672 F. App’x 636, 639 (9th Cir. 2016) (“[W]hen the

government opts to disclose a witness list, it is not required to call all witnesses on the list”); cf.

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). By including Foster on a witness list, the

prosecution did not guarantee that they would call him, and their actions did nothing to prevent




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Frazier from subpoenaing Foster himself. See United States v. Bond, 552 F.3d 1092, 1097 (9th

Cir. 2009). The government was entitled to change its mind about which witnesses to present in

its case in chief, and such a decision does not impede a defendant’s opportunity to present a

complete defense.

         Second, Frazier’s attorney admitted that he was informed four months before trial that the

government did not plan to call Foster. There may have been some continued confusion, as

Foster appeared on a later witness list, but any confusion was resolved at least a month before the

close of trial when the government re-affirmed its intention not to call Foster in a motion for

protective order. Thus, Frazier had not only notice but ample opportunity to subpoena Foster on

his own well before trial—but Frazier did not attempt to subpoena Foster until after the trial

began.

         Finally, during trial, upon discovering that Frazier was attempting to subpoena Foster as a

defense witness, the district court actively aided Frazier in the search. When the search failed,

the government allowed Frazier’s attorney to play an audio recording of Foster’s statement

shortly after the shooting that identified the shooters as African American. Frazier’s attorney

told the district court that the government’s stipulation to the admission of the recording resolved

the issue about Foster’s availability.     Accordingly, Frazier’s constitutional rights were not

violated by the government’s decision not to call Foster as a witness.

                                                 B.

         Frazier also argues that his due process rights were violated because the defense did not

receive a shell casing and expended bullet recovered from the scene of the Columbus shooting

before trial. This due process argument is best characterized as a claim that the government

violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). This court




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reviews de novo a Brady claim raised in the district court through a motion for mistrial. United

States v. Crayton, 357 F.3d 560, 568–69 (6th Cir. 2004).

       While counsel for Frazier was cross-examining Detective Lovett at trial, Lovett

referenced a police report pertaining to the October 2012 shooting as well as a bullet casing and

a slug recovered from the scene. These materials had not been produced to the defense before

trial, though Lovett’s grand jury testimony, which Frazier’s counsel received eleven months

before trial, did reference this precise evidence. The district court successfully obtained the shell

casing and spent slug from Columbus and provided it to the defense during trial. A defense

expert examined the guns, and the Michigan State Police laboratory cross-referenced the bullet

with the guns seized from other Phantoms during the investigation. After the tests, defense

counsel chose not to use the evidence. Frazier included a Brady claim related to this evidence in

his later motion for judgment of acquittal or new trial, which the district court denied, holding

that these claims “were resolved by the Court and the parties during trial.” DE 630, Order, Page

ID 7574.

       To succeed in a Brady claim, a defendant must show: (1) that the evidence in question is

favorable, (2) that the state purposefully or inadvertently suppressed the relevant evidence, and

(3) that the state’s actions resulted in prejudice. Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008);

see also Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The prejudice prong of this inquiry

requires “a reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Turner v. United States, 137 S. Ct. 1885, 1893 (2017)

(quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)).

       Frazier’s Brady claim therefore fails on several counts. First, there is no indication that

this evidence was favorable. Though somewhat delayed, Frazier was given the opportunity to




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examine the evidence, after which he chose not to introduce it at trial. Next, the evidence was

not suppressed—it was referenced in the grand jury transcript, which defense counsel reviewed.

Finally, there is no indication that earlier access to the evidence would have produced a different

verdict. The court took affirmative steps to ensure that Frazier gained access to the evidence.

Then, upon receiving and examining the evidence while trial was still ongoing, the defense made

the strategic decision not to introduce it. Frazier provides no support for his claim that access to

the material before trial could have led to a different outcome. Therefore, Frazier’s Brady claim

is without merit.

                                                VI.

       For the reasons stated, we affirm the district court.




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