                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4414


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MARCUS ROOSEVELT TAYLOR,

                    Defendant - Appellant.



                                      No. 18-4453


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DANIEL THOMAS HERSL,

                    Defendant - Appellant.



Appeals from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge. (1:17-cr-00106-CCB-6) (1:17-cr-00106-CCB-3)


Argued: September 20, 2019                                  Decided: November 5, 2019
Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Rushing joined and Judge Keenan joined in part. Judge Keenan wrote a separate
concurring opinion.


ARGUED: Stuart A. Berman, LERCH, EARLY & BREWER, CHARTERED, Bethesda,
Maryland; Henry Mark Stichel, ASTRACHAN GUNST & THOMAS PC, Baltimore,
Maryland, for Appellants. Leo Joseph Wise, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: C. William Michaels,
Baltimore, Maryland, for Appellant Marcus Roosevelt Taylor. Nida Kanwal, LERCH,
EARLY & BREWER, CHARTERED, Bethesda, Maryland, for Appellant Daniel Thomas
Hersl. Robert K. Hur, United States Attorney, Derek E. Hines, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.




                                         2
NIEMEYER, Circuit Judge:

       In February 2017, a federal grand jury indicted seven officers of the Baltimore City

Police Department for their participation in a racketeering conspiracy and substantive acts

of racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962, as well as other related crimes. The officers, who were

members of the Police Department’s Gun Trace Task Force (“GTTF”), were charged with

robbing citizens during the course of their police service, taking money, jewelry, and other

items. They were also charged with committing fraud in obtaining overtime pay from the

Police Department. Four officers pleaded guilty and cooperated by testifying at trial. One

officer pleaded guilty and did not testify. And two, Marcus Taylor and Daniel Hersl, the

appellants, went to trial and were convicted of RICO conspiracy, in violation of 18 U.S.C.

§ 1962(d); substantive acts of RICO, in violation of 18 U.S.C. § 1962(c); and Hobbs Act

robbery, in violation of 18 U.S.C. § 1951. The district court sentenced each to 216 months’

imprisonment.

       On appeal, Taylor and Hersl contend that the evidence was insufficient to convict

them. In particular, they contend (1) that the evidence failed to show that they had

committed wire fraud under 18 U.S.C. § 1343, one of the predicates for the RICO counts,

in that no evidence was introduced at trial to show that they could foresee that the paper

slips the officers used to fraudulently claim overtime pay would cause a transmission by

wire in interstate commerce and (2) that the evidence failed to show that they had

committed acts constituting Hobbs Act robbery or robbery under Maryland law, another

alleged predicate for the RICO violations. Taylor and Hersl also contend that the court

                                             3
abused its discretion in denying various trial-related motions, thereby prejudicing them.

Finally, they challenge the substantive reasonableness of their sentences.

       For the reasons that follow, we affirm.


                                               I

       After four officers in the Police Department’s GTTF pleaded guilty and agreed to

cooperate by testifying at the trials of the remaining officers, the grand jury returned a six-

count superseding indictment against Sergeant Wayne Jenkins, the officer in charge of the

GTTF; Detective Marcus Taylor; and Detective Daniel Hersl.

       Count I charged the defendants with RICO conspiracy under 18 U.S.C. § 1962(d),

alleging that the Baltimore City Police Department was the enterprise through which the

defendants engaged in a racketeering conspiracy, whose predicate offenses included wire

fraud, in violation of 18 U.S.C. § 1343; robbery, attempted robbery, and conspiracy to

commit robbery, in violation of Maryland law; extortion, attempted extortion, and

conspiracy to commit extortion by a government officer, in violation of Maryland law; and

controlled substance offenses, in violation of 21 U.S.C. §§ 841 and 846.

       Count II charged the defendants with substantive racketeering, in violation of 18

U.S.C. § 1962(c), setting forth 22 predicate racketeering acts, each identified by date and

name of victim. Many of the racketeering acts identified in Count II overlapped with the

constituent crimes alleged in Count I as acts in furtherance of the conspiracy.

       Count III charged Jenkins and Taylor with Hobbs Act robbery for the alleged

robbery of Oreese Stevenson on March 22, 2016, in violation of 18 U.S.C. § 1951.


                                              4
       Count IV charged Jenkins and Taylor with possession of a firearm in furtherance of

a crime of violence, namely the Hobbs Act robbery charged in Count III, in violation of 18

U.S.C. § 924(c).

       Count V charged Jenkins and Hersl with Hobbs Act robbery for the robbery of

Ronald and Nancy Hamilton on July 8, 2016, in violation of 18 U.S.C. § 1951.

       And Count VI charged Jenkins and Hersl with possession of a firearm in furtherance

of a crime of violence, namely the robbery alleged in Count V, in violation of 18 U.S.C.

§ 924(c).

       Jenkins pleaded guilty before trial but ultimately did not testify, and the trial

commenced against Taylor and Hersl.

       The government presented testimony from over a dozen witnesses, including the

four former GTTF officers who had pleaded guilty and agreed to cooperate. The former

officers all testified that, during their time in the GTTF (and, for some, during their prior

assignment on a Special Enforcement Section of the Police Department), they conducted

illegal searches and stole money, drugs, and other items while acting in a law enforcement

capacity. They also testified that they submitted overtime forms for themselves and for

other GTTF officers for hours that they had not worked.

       More particularly, the government presented evidence to show that GTTF officers,

including Taylor, targeted a drug dealer, Oreese Stevenson, as he was in a minivan selling

cocaine to Demetrius Brown. In searching the vehicle, the officers found cocaine and a

backpack containing money. Stevenson testified at trial that, while he had not counted the

money, he expected the bag to contain approximately $21,500 from Brown as payment for

                                             5
the cocaine. He explained that he knew Brown and that Brown had always brought the

correct amount of money. But after Taylor seized the money from the vehicle, he brought

only $15,000 to police headquarters, and that $15,000 was submitted to the evidence

control unit of the Police Department. After this stop and seizure, the GTTF officers went

to Stevenson’s house and did what they called a “sneak-and-peek,” which involves, as one

former officer testified, “go[ing] [into someone’s home] without [anybody] knowing and

sneak[ing] around the house and tak[ing] a peek and search[ing] through the house without

a search warrant.” During the search, they uncovered cocaine and a safe, and some officers

then left to obtain a search warrant. Upon returning with the warrant, officers pried open

the safe and found $200,000. After taking $100,000 for themselves, they reported that only

$100,000 had been found in the safe. The officers, including Taylor, then split the

$100,000 among themselves.

       The government also presented evidence to show that GTTF officers, including

Hersl, targeted Ronald Hamilton, who they believed to be a “big-time drug dealer,” stopped

him, and, after he acknowledged having about $40,000 in his house, drove to his house,

entering it without a warrant. As a result of the search of his house, the officers uncovered

some $70,000. Of that, they took $20,000, leaving $50,000 to be discovered by the

Maryland State Police to legitimize the encounter. The officers, including Hersl, then split

the $20,000 among themselves. Hamilton testified that some of the money was used in

carrying out his used car business, which he conducted on a cash basis. He stated that he

purchased cars from dealer auctions in Manheim, Pennsylvania; Bel Air, Maryland; and



                                             6
Jessup, Maryland, and sold them on the Internet or by word of mouth. The cash seized, he

testified, represented money from the sale of cars and from his gambling.

         With respect to the overtime fraud, the government presented evidence that the

defendants regularly submitted overtime slips on their own behalf and on behalf of other

GTTF officers for hours that they had not worked. To do so, the officers listed the hours

that they had purportedly worked on overtime slips and submitted them to the unit

timekeeper.     Using a computer, the timekeeper then entered the information into a

timekeeping service from ADP, the third-party company that the Police Department had

hired to process its data. FBI Special Agent Erika Jensen testified that Sgt. Jenkins (or Sgt.

Thomas Allers, who had been in charge of the GTTF prior to Jenkins) would authorize the

officers’ overtime hours by signing off on them and turning them “into the system.” After

the data were received by ADP in South Dakota, the officers were ultimately paid either

by check or, in most cases, by direct electronic deposit into their bank accounts. The

defendants’ overtime pay during the relevant period almost matched their base salaries,

doubling their pay.

         The jury found Taylor and Hersl guilty of RICO conspiracy (Count I), substantive

racketeering (Count II), and Hobbs Act robbery (Counts III and V), but it acquitted them

of possession of a firearm in furtherance of a crime of violence (Counts IV and VI).

         The district court sentenced each defendant to 216 months’ imprisonment on each

count, to be served concurrently, which was near the low end of the advisory Guidelines

range.



                                              7
      From the judgments of conviction — dated June 13, 2018, for Taylor, and June 26,

2018, for Hersl — the defendants filed these appeals, which we consolidated by order dated

July 3, 2018.


                                            II

      Taylor and Hersl contend first that their convictions on Count I for a RICO

conspiracy, in violation of 18 U.S.C. § 1962(d), should be reversed because the government

failed to prove a pattern of racketeering activity — which may be shown by at least two

racketeering acts — by presenting insufficient evidence in support of the necessary

elements of wire fraud under 18 U.S.C. § 1343, one of the acts found by the jury. They

argue that to show a violation of § 1343, the government had to prove that the use of

interstate wires was “reasonably foreseeable” to at least one conspirator. They maintain

that although “[t]he government proved without dispute that the process leading to paying

overtime to . . . officers involved the use of interstate wires,” it “offered literally no

evidence to prove that the use of the wires was foreseeable to Hersl, Taylor, or other

conspirators.” More particularly, they assert that “the government introduced no evidence

whatsoever that it was reasonably foreseeable to Hersl, Taylor, or coconspirators that the

submission of overtime slips would lead to wire communications between [the Police

Department] and ADP, let alone interstate wire transmissions from Maryland to South

Dakota [where ADP’s servers for the payroll system were located].”

      To convict the defendants of RICO conspiracy, as charged in Count I, the

government was required to prove “the existence of a RICO enterprise in which the


                                            8
defendant conspired to participate, and that the defendant conspired that a member of the

enterprise would perform at least two racketeering acts constituting a pattern of

racketeering activity.” United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017) (cleaned

up) (citing Salinas v. United States, 522 U.S. 52, 62 (1997)). And to establish a “pattern

of racketeering activity,” the government was required to prove, as the district court

instructed the jury, that “the conspiracy involved or would have involved the commission

of [at least] two racketeering acts.” See also 18 U.S.C. § 1961(5). The RICO statute

defines qualifying racketeering acts to include certain state law crimes, such as robbery,

and acts indictable under specific federal statutes, including wire fraud. Id. § 1961(1).

       As the indictment charged and the jury found, the Police Department was the

enterprise through which Hersl and Taylor conspired with other GTTF officers to enrich

themselves by committing various racketeering acts. The jury also found, as to each of the

defendants, one act constituting robbery under Maryland law and one act constituting wire

fraud under 18 U.S.C. § 1343. Consequently, if the evidence was insufficient to support a

finding that the defendants’ conduct constituted wire fraud under § 1343, as the defendants

contend, one of the two necessary acts would be voided, requiring reversal of the

defendants’ convictions on Count I.

       The wire fraud statute provides that “[w]hoever, having devised or intending to

devise any scheme or artifice to defraud, . . . transmits or causes to be transmitted by means

of wire . . . communication in interstate or foreign commerce, any writings, signs, signals,

pictures, or sounds for the purpose of executing such scheme or artifice . . . shall be

[punished].” 18 U.S.C. § 1343. Thus, to establish a violation of the statute, the government

                                              9
must prove (1) the existence of a scheme to defraud and (2) the fact that the defendant used

or caused the use of wire communications in furtherance of that scheme. See United States

v. Burfoot, 899 F.3d 326, 335 (4th Cir. 2018); United States v. Jefferson, 674 F.3d 332, 366

(4th Cir. 2012). As the district court instructed the jury in this case, it is “not necessary for

the defendant to be directly or personally involved in the wire communication as long as

that communication was reasonably foreseeable in the execution or the carrying out of the

alleged scheme to defraud in which the defendant is accused of participating.” See also

Burfoot, 899 F.3d at 335 (“One ‘causes’ the use of a wire communication when one acts

with knowledge that such use will follow in the ordinary course of business or when such

use can reasonably be foreseen, even though not actually intended” (cleaned up)). Whether

the use of wire transmissions can be reasonably foreseen is determined under an objective

standard. See United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).

       At the outset, we conclude that the interstate nexus required in § 1343 is a

jurisdictional element — rather than a substantive element — of the crime of wire fraud.

See Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016) (recognizing “a settled practice of

distinguishing between substantive and jurisdictional elements of federal criminal laws”).

And while the government is generally required to prove a defendant’s mens rea with

respect to substantive elements of a crime, such proof is not required for a jurisdictional

element. See id. at 1631. As the Second Circuit observed:

       The use of interstate communication . . . is included in the [wire fraud] statute
       merely as a ground for federal jurisdiction. The essence of the crime is the
       fraudulent scheme itself. . . . If the wire employed is an interstate wire the
       requirements for federal jurisdiction are satisfied. It is wholly irrelevant to


                                               10
       any purpose of the statute that the perpetrator of the fraud knows about the
       use of interstate communication.

United States v. Blassingame, 427 F.2d 329, 330 (2d Cir. 1970); see also United States v.

Jinian, 725 F.3d 954, 965 (9th Cir. 2013) (holding that the interstate nexus in § 1343 is

“jurisdictional and not a substantive element of a wire fraud offense”); United States v.

Tum, 707 F.3d 68, 73 (1st Cir. 2013) (“The wire-fraud statute’s interstate-nexus

requirement is purely jurisdictional and not a substantive element of the offense”); accord

United States v. Darby, 37 F.3d 1059, 1067 (4th Cir. 1994) (holding that similar language

in 18 U.S.C. § 875(c) (requiring transmission of communications to be in “interstate

commerce”) did not require the government “to prove that [the defendant] knew of the

interstate nexus” because “criminal statutes based on the government’s interest in

regulating interstate commerce do not generally require that an offender have knowledge

of the interstate nexus of his actions”). Cf. United States v. Bentz, 21 F.3d 37, 40–41 (3d

Cir. 1994) (drawing no clear distinction between the foreseeability of a wire transmission

and the foreseeability of an interstate wire transmission in holding that the government had

presented insufficient evidence to show the foreseeability of any wire transmissions).

       We also conclude that the evidence in this case of the interstate nexus — taking it

in the light most favorable to the government, as we must — was sufficient to satisfy the

jurisdictional element. The evidence shows that the defendants and their coconspirators

submitted fraudulent paper timeslips on their own behalf and on behalf of others in the

conspiracy, claiming overtime hours for work that they had not performed. These slips

were submitted to coconspirator Sgt. Jenkins for approval and to the timekeeper clerk, who


                                            11
entered them into the “eTIME” computer program for processing by ADP, which provided

the software and servers for the Police Department’s payroll processing. An executive of

ADP explained that the Police Department used two of its services — payroll processing

on technology known as Enterprise Payroll Services, or EPS, and a timekeeping system

called “eTIME.” To provide these services, ADP operated a mainframe system with

servers located in Sioux Falls, South Dakota. The executive added, “ADP owns the servers

and hosts [the products], and the [Police Department] just processes payroll through those

servers.” He stated that when the Police Department “upload[ed] time and attendance

information into this system, [that] create[d] electronic wire communications.” Following

receipt of the communications in South Dakota, checks were issued or, in “most cases,”

funds were transferred directly into officers’ accounts.

       This evidence amply demonstrates that the defendants’ and their coconspirators’

submissions of fraudulent overtime slips “cause[d] to be transmitted by means of wire . . .

communication in interstate . . . commerce . . . writings, signs, [or] signals . . . for the

purpose of executing such [fraudulent] scheme or artifice.” 18 U.S.C. § 1343.

       While the defendants do not appear to challenge that conclusion, they argue that the

record contains insufficient evidence from which the jury could have concluded that (1) the

wire transmissions and (2) their interstate nexus were foreseeable to them or to any

coconspirator. As discussed, the fact that the wire transmissions were in interstate

commerce need not have been foreseeable to a defendant, as we conclude that the interstate

commerce aspect is jurisdictional. But this conclusion still leaves open the question raised

by the defendants of whether any wire transmissions, whether or not in interstate

                                             12
commerce, were foreseeable to the defendants or any coconspirator. Under the appropriate

standard for finding foreseeability, of course, the question is more accurately posed as

whether the use of wire transmissions could “reasonably be foreseen,” Burfoot, 899 F.3d

at 335 (emphasis added), and that is an objective standard focusing on a reasonable officer

in the position of the defendants and coconspirators, see Edwards, 188 F.3d at 234. We

conclude that the jury’s finding that wire transmissions were reasonably foreseeable is

sufficiently supported by the evidence, considered as a whole and taken in the light most

favorable to the government.

       The evidence illustrating officers’ general awareness of the overtime submission

process especially in conjunction with Sgt. Jenkins’s specific interactions with that process,

and the officers’ general awareness of the electronic mechanisms for receiving pay, was

sufficient to establish that the officers could reasonably have foreseen the use of wire

transmissions as part of the Police Department’s overall timekeeping and payroll process.

First, there was evidence from FBI Special Agent Jensen’s testimony that paper overtime

slips filled out by the defendants were approved and “turned in” to “the system” by Sgt.

Jenkins, a coconspirator. Jenkins, the officer in charge of the GTTF, was afforded more

direct access to the process, and for this reason, foreseeability that the paper slips would be

entered into a computer by the unit timekeeper, generating wire communications, could

reasonably be ascribed. More broadly, the evidence showed that the timekeeper clerks,

who entered the timeslip data into computers for processing, physically worked in the

Police Department, where the officers also worked. It would be reasonable to infer from

the centrality of the pay system to the Police Department’s overall operations that

                                              13
employees would generally be aware of the process, including that it involved wire

transmissions. Finally, although it is unclear whether Taylor and Hersl were paid by check

or electronic deposit — a means surely subject to their election — it was, in either event,

reasonably foreseeable that the general process would at some stage involve wire

transmissions. This is especially true in light of the prevalence of technology in 2016 and

the needs of an operation the size of the Baltimore Police Department.               Indeed,

coconspirator Maurice Ward specifically affirmed this understanding, acknowledging that

the overtime slips “get processed,” which requires “a couple of weeks for [them] to be

reflected in [his] paycheck.”

       Considering all of this evidence together and taking it in the light most favorable to

the government, we conclude that the record contains sufficient evidence to support the

jury’s findings as to wire fraud under 18 U.S.C. § 1343 in support of its verdicts on Count

I, charging Taylor and Hersl with RICO conspiracy, and therefore we affirm their

convictions on this count.


                                             III

       Taylor and Hersl challenge their convictions on Count II for substantive

racketeering, in violation of 18 U.S.C. § 1962(c), by challenging the sufficiency of the

evidence as to the underlying racketeering acts, which must number at least two to establish

the requisite “pattern of racketeering activity.” In its verdicts, the jury found that Taylor

committed six such acts — three robberies or conspiracies to commit robbery under

Maryland law and three acts of overtime-related wire fraud, in violation of 18 U.S.C.


                                             14
§ 1343 — and that Hersl committed eight such acts — four robberies or conspiracies to

commit robbery under Maryland law and four acts of overtime-related wire fraud, in

violation of § 1343. The defendants acknowledge that their convictions on Count II will

stand as long as there was sufficient evidence to support the jury’s finding that each

defendant committed at least two racketeering acts. Thus, Taylor must invalidate at least

five acts, and Hersl seven, to have their convictions on Count II reversed.

       In attacking the predicate racketeering acts on which their convictions rest, the

defendants contend that all the wire fraud racketeering acts should fall because of the

government’s failure to prove foreseeability, just as they argued in challenging Count I.

And they attack the robbery predicates on the grounds that either they were not involved

or the events as they unfolded did not meet the requirements for robbery or conspiracy to

commit robbery under Maryland law.

       Because, as discussed in connection with Count I, we reject the defendants’

argument that the government failed to present sufficient evidence of foreseeability as

necessary to establish wire fraud and because the jury found that each defendant committed

more than two such acts of wire fraud, we need not address the defendants’ challenge to

the robbery predicates. Accordingly, their convictions on Count II are affirmed.


                                            IV

       Both Taylor and Hersl challenge their convictions for Hobbs Act robbery, as

charged in Count III for Taylor and in Count V for Hersl.




                                            15
       The Hobbs Act penalizes a person who “in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in commerce, by robbery

or extortion . . . or commits or threatens physical violence to any person or property in

furtherance of a plan or purpose to do any thing in violation of this section.” 18 U.S.C.

§ 1951(a). “Commerce” is defined as interstate in nature, see id. § 1951(b)(3), while

“robbery” is defined, in relevant part, as “the unlawful taking or obtaining of personal

property from the person or in the presence of another, against his will, by means of actual

or threatened force, or violence, or fear of injury, immediate or future, to his person or

property,” id. § 1951(b)(1).

       Both defendants contend that the evidence was insufficient to establish that their

conduct met the statutory definition of robbery. Hersl also contends that the government

failed to establish that his alleged robbery of Ronald and Nancy Hamilton affected

interstate commerce. We address each defendant’s arguments in order.


                                             A

       Taylor’s Hobbs Act conviction on Count III was predicated on the alleged robbery

of Oreese Stevenson on March 22, 2016. On that date, officers surrounded the minivan

Stevenson was driving and allegedly took over $6,500 from the $21,500 found in the van

and then, after searching Stevenson’s residence, took $100,000 of the $200,000 found

there. Taylor contends that no robbery occurred at the minivan because, according to him,

the only items removed from the vehicle were properly turned over to the Police

Department’s evidence control unit. And he contends that no robbery occurred at his


                                            16
residence because nothing was taken “from the person or in the presence of another,” as

required by the Hobbs Act’s definition of robbery.

       Taking the evidence in the light most favorable to the government, we conclude that

it was sufficient for the jury to infer that Taylor robbed Stevenson and his passenger,

Demetrius Brown, when he took a portion of the cash seized from the van.

       Stevenson testified that he was sitting in his van and conducting a transaction to sell

Brown one-half kilogram of cocaine for $21,500, when Taylor and three other officers

surrounded the van, blocked it with one of their vehicles, removed the two men, and

handcuffed them. The officers told Stevenson that his front windshield was illegally tinted,

but Stevenson denied that any tint had been added. The officers then seized the cocaine

and a backpack of money from the van, which Stevenson believed contained the $21,500

he expected Brown to pay him for the cocaine. When explaining at trial why he believed

that the bag contained $21,500, Stevenson testified, “That was the deal [he] [was] going to

sell it for.” (Emphasis added). He also testified that he knew Brown and Brown “always

ha[d] the correct money.” And again he confirmed that $21,500 is “what should have been

in the bag.”

       One of the officers who had been at the scene testified that it was Taylor who

removed the bag of money from the car and that Taylor later told him that the bag contained

$15,000. Although the officer did not know what Taylor did with the money after seizing

it from the van, it was undisputed that only $15,000 was submitted to the police evidence

control unit.



                                             17
       Viewing this testimony in the light most favorable to the government, we conclude

that it would have been reasonable for a jury to find that there had originally been more

than $15,000 in Stevenson’s van and that Taylor participated in taking the missing amount

from Stevenson and Brown before the remainder was submitted to the evidence control

unit. Accordingly, we affirm Taylor’s conviction under Count III.


                                             B

       Hersl’s Hobbs Act conviction on Count V was predicated on the alleged robbery of

Ronald and Nancy Hamilton on July 8, 2016. On that date, Hersl and three other officers

entered the Hamiltons’ house without a warrant, searched the house in their presence, found

approximately $70,000, and took $20,000 to divide among themselves. Hersl contends

that the government established, at most, that he was present while the three other officers

— Sgt. Jenkins, Det. Jemell Rayam, and Det. Momodu Gondo — robbed the Hamiltons

and that his mere presence was insufficient for a jury to conclude that he was involved in

the robbery.

       But the record does not support Hersl’s claim that he was simply an innocent

bystander. To begin, he entered the house with the other officers without a warrant, surely

knowing that they were not legally entitled to conduct a search of the house. Indeed, the

government’s evidence indicated that the officers had no plans to search the Hamiltons’

house until they stopped the Hamiltons in their car, robbed Hamilton of $3,400 from his

pocket, and learned that Hamilton kept money at his house. Once there, Hamilton testified

that Hersl guarded him and his wife in the living room while the other officers searched


                                            18
the house. Testimony also showed that Hersl became aware of the $70,000 that was found,

a portion of which he was later given and accepted. In addition, Rayam testified that after

the officers found $20,000 in loose cash in the Hamiltons’ bedroom, Hersl was briefly

alone with the money. Rayam later realized that $3,000 of the $20,000 was missing. He

testified that Gondo believed Hersl took the missing cash and so informed Sgt. Jenkins,

who nonetheless decided to “leave it alone” and to split the remaining $17,000 between

the four officers, so as not to cause problems. Even if it was not sufficiently proved that

Hersl stole the missing $3,000, he surely knew that the $17,000 that the officers took and

divided among themselves was the product of the robbery that all four officers had just

committed. We conclude that a jury could well have drawn the reasonable inference that

Hersl was not a mere bystander.

       Hersl also argues that even if he was involved in robbing the Hamiltons, a robbery

of personal savings from a private home does not have the effect on interstate commerce

required by the Hobbs Act.

       Hamilton testified, however, that he earned the money that had been taken from his

bedroom through “cars and gambling,” although he did not specify how much came from

either endeavor.   Testifying about his car business, which operated solely on cash,

Hamilton explained that he purchased cars at dealer auctions in Manheim, Pennsylvania;

Bel Air, Maryland; and Jessup, Maryland and then sold them over the Internet or through

word of mouth. This evidence, we conclude, sufficiently satisfies the jurisdictional

requirement of the Hobbs Act.



                                            19
       “[T]he jurisdictional predicate of the Hobbs Act requires only that the government

prove a minimal effect on interstate commerce.” United States v. Taylor, 754 F.3d 217,

222 (4th Cir. 2014) (cleaned up). In Taylor, we held that the government may satisfy the

Hobbs Act’s jurisdictional requirement under at least two different theories, the pertinent

one being by showing a reasonable probability that the defendants’ actions depleted the

assets of an entity engaged in interstate commerce. 754 F.3d at 224–26; see also United

States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990). Under this theory, the interstate

nexus may be shown “by proof of probabilities without evidence that any particular

commercial movements were affected.” Buffey, 899 F.2d 1404 (cleaned up). We have

held that “the effect [on interstate commerce] may be so minor as to be de minimis.”

Taylor, 754 F.3d at 222. Moreover, “[t]he question is not simply whether one particular

offense has a measurable impact upon interstate commerce, but whether the relevant class

of acts has such an impact.” United States v. Williams, 342 F.3d 350, 355 (4th Cir. 2003).

Although there is some difference in how the circuits articulate the jurisdictional

requirement of the Hobbs Act, see, e.g., United States v. Wang, 222 F.3d 234, 239–40 (6th

Cir. 2000) (seeming to set a monetary threshold to establish a sufficient effect on interstate

commerce), Taylor makes clear that the depletion of assets theory requires no minimum

dollar amount, 754 F.3d at 225.

       While Hamilton did not quantify how much of his business he conducted out of

state, a rational jury could have concluded that, since he testified to purchasing cars from

only three locations, his purchases from Manheim, Pennsylvania, constituted a substantial

portion of his inventory. And we have recognized that a business that purchases “a

                                             20
substantial portion of its inventory from out-of-state suppliers is engaged in interstate

commerce for purposes of the Hobbs Act.” United States v. Tillery, 702 F.3d 170, 174 (4th

Cir. 2012) (cleaned up). In addition, Hamilton specifically testified that some of the cash

found in the bedroom came from selling cars, a portion of which came from Pennsylvania.

Because there is no dollar-amount minimum under the depletion of assets theory, the fact

that Hamilton did not specify the particular amount derived from cars that he purchased in

Manheim is not dispositive. We therefore conclude that the evidence was sufficient to

satisfy the jurisdictional requirement of the Hobbs Act.


                                             V

       The defendants challenge the district court’s exercise of discretion in denying

various motions related to the trial. Discretion related to the management of trial is, of

course, broad, and we will reverse only if we find prejudicial abuse.


                                             A

       First, the defendants contend that the district court abused its discretion by denying

their pretrial motion in limine to prohibit the government and its witnesses from using the

term “robbery” during trial and by overruling their subsequent objection at trial to its use,

especially in reference to the alleged predicate acts of the RICO counts. They argue that

the government’s use of the term “robbery” was prejudicial because to convict the

defendants on the RICO counts, the jury was required to conclude that Hersl and Taylor’s

encounters with victims in fact constituted robberies, rather than non-predicate offenses,

such as thefts or burglaries. They maintain that the use of the term was not only unfairly

                                             21
prejudicial under Federal Rule of Evidence 403, but also improper under Rules 701 and

704, which regulate lay witness testimony in the form of an opinion and expert testimony

in lay witness clothing.

       The government argues that the district court did not err in denying the defendants’

motion in limine and that it used the term “robbery” only when necessary, particularly

when a coconspirator testified that he had pleaded guilty to robbery as a predicate offense.

Moreover, it contends that the coconspirators’ use of the term “robbery” was not improper

lay witness testimony in the form of opinion because it was a fact that each of the

coconspirators had pleaded guilty to robbing civilians, and whether Taylor and Hersl

committed robbery was an issue properly committed to the jury to decide. See Fed. R.

Evid. 701, 704.

       The record shows that Ward, one of the coconspirators, testified that he had pleaded

guilty to “[c]omitting robberies and also fraud in Baltimore City of overtime.” After he

described his plea, the district court instructed the jury not to draw any conclusions about

the guilt of the defendants based on the guilty pleas of any testifying coconspirators.

Coconspirators Evodio Hendrix, Rayam, and Gondo similarly used the term “rob” to

describe the conduct accompanied by their guilty pleas, and the government’s follow-up

questions often repeated their language.         When Hersl’s counsel objected to the

government’s use of the term “robbery” during Rayam’s testimony, the court reminded the

government to rephrase its questions when possible so as not to use that term. Finally, at

the close of the evidence, the court again reminded the jury to “draw no conclusions or

inferences of any kind about the guilt of the defendants on trial from the fact that a

                                            22
prosecution witness pled guilty to similar charges.” The defendants now focus their

argument on the fact that the government ignored the district court’s admonition to use the

term “robbery” sparingly and contend that the government’s overuse of the term resulted

in the prejudicial suggestion that Taylor and Hersl, like the testifying coconspirators,

committed robbery.

       First, we agree with the government that the coconspirators’ use of the term

“robbery” did not state an opinion about whether Taylor and Hersl had committed robbery,

but rather expressed their knowledge of their own guilty pleas. Each pleaded guilty to a

RICO conspiracy in which robbery was a predicate act, and their description of the

predicate acts of robbing victims was an accurate description of their plea. Moreover, the

defendants apparently recognized this as they attempted to clarify the issue in questioning

coconspirator Hendrix, establishing that Hendrix pleaded guilty to RICO conspiracy and

not to any individual robbery.

       More importantly, however, we find that the district court’s repeated instructions to

the jury — telling them to draw no inferences about the defendants’ guilt from the

coconspirators’ characterization of their own pleas — substantially mitigated any potential

confusion. As the district court recognized, scenarios concerning conspiracy charges

where one conspirator pleads guilty and testifies against another are fairly common. And

in those cases, numerous courts have determined that a cautionary instruction is sufficient

to ensure that the jury considers coconspirators’ guilty pleas within the properly limited

scope and does not confuse any testifying witnesses’ guilt with that of the defendant. See,

e.g., United States v. Woods, 764 F.3d 1242, 1246–47 (10th Cir. 2014); United States v.

                                            23
Benson, 591 F.3d 491, 498–99 (6th Cir. 2010); United States v. DeLoach, 34 F.3d 1001,

1005 (11th Cir. 1994); United States v. Willis, 997 F.2d 407, 414–15 (8th Cir. 1993).

       To be sure, there were occasions during trial when the government used the term

“robbery” unprompted by a coconspirator’s use of the term. But we conclude that those

limited occasions, accompanied by the court’s repeated instructions to the jury, did not

affect the outcome of the trial. See United States v. Brooks, 111 F.3d 365, 371 (4th Cir.

1997) (noting that “to find a district court’s error harmless, we need only be able to say

with fair assurance, after pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by the error” (cleaned up)).


                                              B

       The defendants also contend that the district court abused its discretion in denying

their motion for a mistrial after an outburst by government witness Ronald Hamilton, the

alleged victim of the Hobbs Act robbery charged in Count V. They argue that Hamilton’s

outburst was prejudicial because, despite the court’s curative instruction, the jury could not

thereafter reach verdicts unaffected by the outburst’s emotional impact.

       The outburst occurred when Taylor’s counsel was cross-examining Hamilton, as

follows:

       Q.            Well, what are your mortgage —

       A.            Check the record.

       Q.            What are your mortgage payments?

       A.            Does that makes a difference? What’s — this right here
                     destroyed my whole f--kin’ family.

                                             24
                    Sorry. Sorry, Your Honor.

      Court:         It’s all right.

      Witness:       This destroyed my whole family. I am in a divorce process
                     right now because of this bullshit. This destroyed my whole
                     f--kin’ family, man. You sit here asking me questions about a
                     f--kin’ house. My f--kin’ wife stays in the f--kin’ Walmart
                     every f--kin’ night until I come home. If you want to know
                     that, worry about that. That’s what the f--k’s the matter in here,
                     man. Everybody’s life is destroyed, man. My house don’t
                     have nothing to do with this. The problem is my wife is taking
                     medication ‘cause of this.
      Court:         Sir, sir —

       Witness:      Man — I’m sorry, Your Honor. I’m sorry to the courts. But
                     the fact of the matter is, man, my house don’t have nothing to
                     do with this.

                     The fact of the matter is, came in my house, destroyed my
                     family. I’m in a divorce process because of this. Because of
                     this. This has put so much financial pressure on my family.
                     Kids, man, are scared to go in the house because of this.

The next morning, Hersl moved for a mistrial based on the outburst, and Taylor joined.

While the district court denied the motion, it struck the testimony from the record and

instructed the jury that the outburst was “not responsive to any specific question” and was

not to be considered as evidence.

       The defendants now contend that the court’s response was inadequate and therefore

amounted to an abuse of discretion because the outburst created an unacceptable risk that

the jury would convict Hersl and Taylor out of of sympathy for Hamilton or outrage at the

harm that he and his family had suffered.




                                             25
       It is important to recognize that on a courtroom issue such as this, the district court

is best positioned to assess whether a mistrial is warranted or whether other means exist to

address the issue adequately. See Burfoot, 899 F.3d at 341. A court nonetheless abuses its

discretion if the defendant shows actual prejudice, but we have held that there is no

prejudice if we determine that the jury, despite the incident in question, was able to “make

individual guilt determinations by following the court’s cautionary instructions.” United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (quoting United States v. Dorsey, 45

F.3d 809, 817 (4th Cir. 1995)). Because a mistrial is so drastic a step, we will disturb the

district court’s refusal to grant one only in extraordinary circumstances, such as when

evidence is admitted that would prejudice the defendant, and there is an “overwhelming

probability” that the jury would be unable to heed a curative instruction to ignore it. See

Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (citing Richardson v. Marsh, 481 U.S. 200,

208 (1987)).

       In this case, Hamilton’s outburst was indeed emotional and disrupting — he was

obviously upset to have been robbed by rogue police officers. But it is well to recognize

that his outburst was not necessarily directed at Taylor or Hersl nor did it directly pertain

to any issue committed to the jury about their guilt. Cf. United States v. Schiff, 612 F.2d

73, 80–82 (2d Cir. 1979) (the defendant was prejudiced where the evidence at issue dealt

precisely with a question that would be before the jury). Indeed, when testifying about the

robbery, Hamilton spoke mostly about the corrupt acts of Sgt. Jenkins, and he only

occasionally referred to Hersl. And, by all accounts, Taylor was not part of this particular

encounter. Moreover, other coconspirators testified unequivocally that they had robbed

                                             26
the Hamiltons. Hamilton’s outburst expressed his emotional reaction to this event, but he

said nothing inflammatory about Taylor and Hersl’s involvement.

       Other factors also indicate that Hamilton’s outburst did not prejudice the defendants.

For instance, the jury, despite the outburst, made individual guilt determinations, as

evidenced by the fact that it did not convict the defendants on all counts. See Dorsey, 45

F.3d at 817 (recognizing that a jury’s willingness to acquit a defendant on some counts is

“strong evidence that the district court’s denial of his motion for mistrial did not result in

the type of prejudice that warrants reversal”). In addition, Hamilton’s outburst was not

instigated by the government but occurred during cross-examination by Taylor’s counsel.

See id. (observing that the likelihood of prejudice is diminished where a statement is not

purposefully introduced by the government); cf. United States v. Murray, 784 F.2d 188,

188 (6th Cir. 1986) (concluding that error in referring to a polygraph examination was not

harmless in part because the reference was “introduced deliberately by an experienced FBI

agent”).

       For all these reasons, we conclude that the district court did not abuse its discretion

in denying the motion for a mistrial and opting, instead, to strike the testimony and give

the jury a curative instruction.


                                              C

       Taylor contends that the district court abused its discretion in denying his motion to

dismiss the indictment or, in the alternative, to continue the trial for three months, due to

pretrial publicity. In support of this motion, he argues that the news coverage of the case


                                             27
was both pervasive — being covered extensively on television, on radio, and in newspapers

— and prejudicial. To underscore his point, he attached to his motion three articles from

the Baltimore Sun. He claims that in denying the motion, the court denied him his Sixth

Amendment right to a fair trial — i.e., his right to a trial by an “impartial jury.” U.S. Const.

amend. VI; see also Skilling v. United States, 561 U.S. 358, 377 (2010).

       Following the analytical framework set forth in Skilling, we conclude that the

pretrial publicity neither created a presumption of prejudice nor caused actual prejudice.

       First, we note that “juror impartiality . . . does not require ignorance,” Skilling, 561

U.S. at 381, and juror exposure to media coverage cannot by itself establish that a defendant

was deprived of a fair trial, even if the publicity was pervasive, adverse, and voluminous,

id. at 384; see also United States v. Bakker, 925 F.2d 728, 732 (4th Cir. 1991).

       Under the Skilling framework, we consider first whether pretrial publicity was so

extreme as to give rise to a presumption of prejudice. Skilling, 561 U.S. at 379–81. A

review of the newspaper articles attached to Taylor’s motion, however, reveals that they

were predominantly factual and did not present the type of “vivid, unforgettable

information” that warrants a presumption of prejudice. Id. at 384; see also Bakker, 925

F.2d at 732 (reasoning that “unemotional, factual reports of legal proceedings” weigh

against a presumption of prejudice).          Nor did the articles contain, for instance,

“inflammatory” information that “depicted [Taylor] as an evil man,” as did the article that

we found prejudicial in United States v. Gray, 788 F.2d 1031, 1033 (4th Cir. 1986). Indeed,

only one of the three articles attached to Taylor’s motion mentioned Taylor by name, and



                                              28
then it merely stated: “Two other officers — Detectives Daniel Hersl and Marcus Taylor

— are slated to fight the charges at a trial beginning Jan. 22.”

       In assessing whether there is a presumption of prejudice, we also take into account

the size of Baltimore’s population, which was approximately 621,000 residents. That is

large enough to reduce the likelihood of prejudice. See Skilling, 561 U.S. at 382 (noting

that there is a “reduced likelihood of prejudice where venire was drawn from a pool of over

600,000 individuals”) (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1044 (1991)

(plurality opinion))). Finally, the fact that the jury acquitted Taylor on one count belies

any overarching prejudice. Id. at 383–84 (citing United States v. Arzola-Amaya, 867 F.2d

1504, 1514 (5th Cir. 1989) (“The jury’s ability to discern a failure of proof of guilt of some

of the alleged crimes indicates a fair minded consideration of the issues”)).

       The factual basis for Taylor’s motion is weaker than that considered in Skilling. Yet

even in Skilling, the Supreme Court held that the widespread negative coverage about

Enron’s bankruptcy did not create a presumption that a former Enron executive charged

with securities fraud could not receive a fair trial in Houston. 561 U.S. at 385. The Court

found that the tenor of the news coverage was not highly prejudicial to the defendant, and

any potential for prejudice was diluted by Houston’s size and diversity. Id. at 382–84.

       That brings us to the second inquiry under the Skilling framework, the question of

whether Taylor demonstrated actual prejudice. The evidence to support such a showing

was meager and inadequate. During voir dire, the district court asked potential jurors

whether they had read or heard anything about the case or the defendants. Only one

member of the venire who responded affirmatively to this question was ultimately seated

                                             29
on the jury. That juror indicated that he or she had heard some information about the case

on talk radio, but the juror could not recall specifics and stated that the news coverage

would not affect his or her ability to decide the case based on the evidence presented. This

evidence is clearly insufficient to show that Taylor was deprived of his Sixth Amendment

right to an impartial jury.

       For the foregoing reasons, we conclude that the district court did not abuse its

discretion in denying Taylor’s motion.


                                              D

       Finally, the defendants contend that the district court erred in denying their motion

for a new trial, which they filed three months after the jury’s verdicts when they discovered

new evidence that would have allowed them to impeach a government witness, Antonio

Santiful, at trial. They argue that the government knew during trial that Santiful was under

investigation for drug trafficking but failed to disclose that fact, in violation of Brady v.

Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150, 153–54 (1972)

(applying Brady to impeachment evidence).

       The defendants learned three months after the jury’s verdicts in this case — which

were returned on February 12, 2018 — that on May 8, 2018, a grand jury had returned an

indictment against Santiful, charging him with participation in two drug transactions in

March 2018 which it alleged were part of a larger conspiracy dating back to November

2017. In other words, while the two drug transactions occurred after the verdicts were

returned in this case, the conspiracy was alleged to have begun well before Santiful testified


                                             30
in this case. On this basis, the defendants conclude that Santiful must have been under

investigation at the time he was testifying against them, a fact that they could have used to

impeach his testimony had the government disclosed it.

       But from the record developed after the defendants filed their motions, there is little

evidence to support their claims. The record shows that on February 1, 2018 (before the

February 12 verdicts in this case), a pole camera recorded Santiful in possession of a

firearm. Officers of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”),

a law enforcement agency that was not involved in the prosecution of the GTTF officers,

prepared a report dated February 8 that identified Santiful in the footage and noted that his

status as a convicted felon prohibited him from possessing a firearm. That report was given

to the U.S. Attorney’s Office on February 13, one day after the verdicts were returned here.

The defendants presented no evidence that the government took any other steps to

investigate Santiful prior to the jury verdicts in this case.

       The district court found that during the trial, no U.S. prosecutor had knowledge of

the pole camera data or any other investigation of Santiful. Specifically, the court stated:

       I am not aware of anything relating to a prosecutor’s duty to disclose that
       would have required in some way the ATF or a supervisor to recognize the
       significance of this as to Mr. Santiful and somehow get it to the prosecutors
       before this trial is over. And, in any event, they didn’t. There’s just no
       indication of that whatsoever.

The court did recognize that the information could have been used to help impeach Santiful,

but it concluded that the evidence was not material because it would have provided only

“minimally additional impeachment.” The court noted that evidence had been introduced

at trial of at least two prior felony convictions — one for the illegal possession of a firearm

                                               31
and a second for the illegal possession of drugs. In light of this evidence, the court found

no reasonable probability that the additional impeachment evidence would have changed

the outcome in this case. The court accordingly denied the defendants’ motion for a new

trial.

         The defendants now contend that “evidence that Santiful was a current, not merely

a former, drug dealer would have been extremely significant [in] cross-examining him.”

“Such evidence,” they maintain, could have “produced a different trial result.”

         The Supreme Court’s decision in Brady establishes that the prosecution’s

“suppression . . . of evidence favorable to an accused” violates due process. 373 U.S. at

87. To demonstrate a Brady violation, “the proponent must show that the undisclosed

evidence was (1) favorable to him either because it is exculpatory, or because it is

impeaching; (2) material to the defense, i.e., prejudice must have ensued; and (3) that the

prosecution had materials and failed to disclose them.” United States v. Wolf, 860 F.3d

175, 189–90 (4th Cir. 2017) (cleaned up); see also Giglio, 405 U.S. at 153–54.

         To satisfy the Brady requirements, the defendants argue in particular that the district

court erred in concluding (1) that the prosecution did not possess the information at the

time of trial and (2) that the disclosure would not have created “a ‘reasonable probability’

of a different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (holding that such a

reasonable probability is shown “when the government’s evidentiary suppression

undermines confidence in the outcome of the trial” (cleaned up)).

         On their first point, the defendants argue that even though the specific prosecutors

in this case did not possess the information about Santiful, the district court should have

                                               32
imputed to the prosecutors knowledge of an investigation of one of their witnesses by other

prosecutors in the same U.S. Attorney’s Office. But this argument gains them little. Based

on the timeline found by the district court, “there were not any . . . Government prosecutors

that would have known this new information” before the verdicts were returned on

February 12, 2018, leaving nothing to impute to the specific prosecutors in this case. The

court found that ATF agents prepared a report regarding the pole camera data on February

8, which was submitted to the U.S. Attorney’s Office on February 13, and no government

prosecutor, therefore, received information about Santiful until the day after the jury’s

verdicts. The defendants have not offered any evidence to suggest that the district court’s

factual findings on this timeline were clearly erroneous.

       We also conclude that the knowledge of the ATF officers investigating Santiful

should not be imputed to the prosecutors in this case. To be sure, the Supreme Court has

made clear that the Brady disclosure requirement covers material “known only to police

investigators and not to the prosecutor[s].” Kyles, 514 U.S. at 438; see also United States

v. Robinson, 627 F.3d 941, 951 (4th Cir. 2010) (“Brady’s commands do not stop at the

prosecutor’s door; the knowledge of some of those who are part of the investigative team

is imputed to prosecutors regardless of prosecutors’ actual awareness”). But this principle

is not boundless. Specifically, Kyles recognized that “the individual prosecutor has a duty

to learn of any favorable evidence known to the others acting on the government’s behalf

in the case, including the police.” 514 U.S. at 437 (emphasis added).

       Thus, Brady’s command is not so broad as to reach the circumstances of this case.

Here, the ATF officers investigating Santiful were not part of the GTTF “investigative

                                             33
team,” which was made up of FBI officers; the ATF officers were looking into an entirely

separate case related to the Straight Kash Cartel.       Imputing their knowledge to the

prosecutors in this case would require us to stretch Brady beyond its scope and would

effectively impose a duty on prosecutors to learn of any favorable evidence known by any

government agent. Cf. Fullwood v. Lee, 290 F.3d 663, 685 n.12 (4th Cir. 2002) (imputing

to prosecutors knowledge of the defendant’s private conversation with a police officer

working the same case); United States v. Sutton, 542 F.2d 1239, 1241 n.2 (4th Cir. 1976)

(imputing to federal prosecutors the knowledge and actions of an FBI agent working the

same case); Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976) (imputing to prosecutors

a promise made by state police working the same case); Barbee v. Warden, Md.

Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964) (imputing to state prosecutors the

knowledge of Baltimore City Police officers working the same case). We thus conclude

that the district court did not err in finding that the prosecutors in this case did not have

actual or constructive knowledge of the information at the time of trial.

       The defendants also challenge the district court’s ruling that the new evidence was

not material. But we find it hard to imagine how information that Santiful was under

investigation for drug offenses would have been consequential to his credibility in the

jury’s eyes given that the defense had impeached him with evidence of his two prior

firearms convictions and evidence of his prior drug conviction had also been introduced.

Evidence of the investigation would have been only cumulative — and then only slightly

so. Accordingly, information that Santiful may have been under investigation at the time

of the trial does not undermine our confidence in the trial’s outcome and was therefore not

                                             34
material. This is especially so because the evidence was not of the type that could have

resulted in acquittal. See Wolf, 860 F.3d at 189. Santiful’s testimony was limited to “the

Santiful incident,” which was only one of 22 predicate racketeering acts charged under

Count II, and the jury needed to find only 2 to convict.

       We therefore affirm the district court’s ruling denying the defendants’ motion for a

new trial.


                                             VI

       Finally, Taylor and Hersl contend that their 216-month sentences are substantively

unreasonable due to their increased vulnerability as incarcerated police officers and other

factors specific to each defendant.

       The district court calculated the Sentencing Guidelines range for each defendant,

using an offense level 37 and criminal history category I, to arrive at an advisory sentencing

range of 210 to 262 months’ imprisonment.             After “plac[ing] on the record an

individualized assessment based on the particular facts of the case before it” for each

defendant, United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (cleaned up), the court

sentenced each defendant to 216 months’ imprisonment, near the low end of the advisory

sentencing range.

       It is well established that we review sentences on appeal by following a two-step

process. First, we ensure that the “district court committed no significant procedural error”

in determining the sentence. Lynn, 592 F.3d at 575 (quoting Gall v. United States, 552

U.S. 38, 51 (2007)). Although the defendants do not contend that the sentences were


                                             35
procedurally unreasonable, we nonetheless have reviewed the record and find no

procedural error.

       Second, we consider the substantive reasonableness of the sentence under an abuse

of discretion standard. Lynn, 592 F.3d at 575. On appeal, a sentence within the properly

calculated Guidelines range is “presumptively reasonable.” United States v. White, 850

F.3d 667, 674 (4th Cir. 2017).

       The defendants direct us to Koon v. United States, 518 U.S. 81 (1996), for the

proposition that a downward departure is warranted in circumstances such as these. Koon

arose from the police beating of Rodney King and in the context of the Los Angeles riots

that erupted in its aftermath. In considering the police officers’ sentences, the Supreme

Court observed that a district court does not necessarily abuse its discretion in granting a

downward departure for a truly “unusual” case that elicited “widespread publicity and

emotional outrage” and where defendant officers would be likely targets of abuse in prison.

Id. at 112. But while the Court concluded that a downward departure might be permissible

in such circumstances, it did not hold that the failure to grant such a departure would be an

abuse of discretion; such a decision remains fully within the discretion of the district court.

Although Hersl and Taylor’s case did indeed strike a public nerve, the public response and

the likelihood of the defendants’ becoming targets while in prison cannot fairly be

compared to the Koon situation, where the aftermath of the officers’ conduct involved over

40 deaths and 2,000 injuries. See id. at 88.




                                               36
       We conclude that the district court did not abuse its discretion in declining to grant

the defendants a downward departure, and we uphold the defendants’ sentences as

substantively reasonable.


                                            VII

       This is a particularly sad case. The community places a noble trust in police officers

to define and enforce, in the first instance, the delicate line between the chaos of

lawlessness and the order of the rule of law. And when police officers breach that trust

and misuse their authority, as here, a measure of despair infuses in the community, tainting

far more than do similar crimes by others. The officers’ convictions and sentences in this

case are just and necessary, and we can only hope for a renewed commitment to the trust

that we place in police officers who discharge their duties well.

       The judgments of the district court are affirmed.



                                                                               AFFIRMED




                                             37
BARBARA MILANO KEENAN, Circuit Judge:

       I concur in the majority opinion with one exception. Although I agree with my

colleagues’ rejection of the defendants’ challenge under Brady v. Maryland, 373 U.S. 83

(1963), I would rely exclusively on the fact that the impeachment information was not

material to the jury’s decision. Id. at 87. As the majority aptly explains, the jury already

received strong impeachment evidence regarding Santiful’s prior drug and firearm

convictions, reducing the likelihood that evidence of another investigation into similar

conduct would affect the jury’s assessment of Santiful’s credibility. See United States v.

Bartko, 728 F.3d 327, 338-39 (4th Cir. 2013) (withheld evidence not material if cumulative

of other impeachment information); see also United States v. Parker, 790 F.3d 550, 558

(4th Cir. 2015) (same).

       Because we can dispose of the Brady issue on materiality grounds, I would not

address the closer question whether the investigators’ knowledge of the impeachment

material can be imputed to the prosecutors in this case. I therefore do not join the majority’s

broad conclusion that imputing such knowledge “would effectively impose a duty on

prosecutors to learn of any favorable evidence known by any government agent.” Maj.

Op. at 34.




                                              38
