                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0553n.06

                                           No. 17-3111

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   Nov 02, 2018
 UNITED STATES OF AMERICA,                                )                    DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellee,                               )
                                                          )      ON APPEAL FROM THE
 v.                                                       )      UNITED STATES DISTRICT
                                                          )      COURT FOR THE
 JOHNATHAN HOLT,                                          )      SOUTHERN DISTRICT OF
                                                          )      OHIO
        Defendant-Appellant.                              )


       Before: BATCHELDER, MOORE, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Johnathan Holt assisted the Short North Posse by acting as an

aggressor in robberies organized by one of the gang’s members. During one such robbery, Holt

shot a man, who later died from his injuries. A jury convicted Holt of murder in aid of racketeering,

18 U.S.C. § 1959(a)(1), and murder with a firearm during a drug trafficking crime, 18 U.S.C.

§ 924(j). Holt brings two claims on appeal: (1) the district court erred by denying his motion to

suppress statements he made during an interview with a prosecutor and law enforcement officers;

and (2) the jury heard insufficient evidence to convict him of murder in aid of racketeering.

We AFFIRM Holt’s convictions.

                                                 I.

       The Short North Posse operated in Columbus, Ohio. Although selling drugs in the Short

North neighborhood was the gang’s “primary income[-]producing venture,” gang members also

engaged in robberies outside of the neighborhood to “[e]nrich[] its members and associates” and

often recruited associates from outside of the gang to help. Lance Reynolds was a gang member
No. 17-3111, United States v. Holt


and the “orchestrator” of a series of robberies targeting drug dealers. He relied on associates from

other neighborhoods, including defendant Holt, who was not a gang member, to help him carry

out these robberies. Beginning around 2009, Holt served as Reynolds’s “aggressor” during

robberies, meaning he would be the one to “run up on you, shoot you or stick you up.”

       Some of the individuals who had participated in these robberies with Reynolds and Holt

testified at trial. Christopher Wharton testified that he had become involved in the robberies

through his friendship with Holt. Wharton explained that he had “wanted some money,” that he

had known that Reynolds was a member of the Short North Posse, and that he had wanted to get

in on Reynolds’s plans because “everybody knows they rob people.” Wharton testified that Holt

had rebuffed his attempt to join a robbery of a Check Into Cash store, but that Holt had earned

$300 for that robbery, for being available with a possible getaway car. Wharton first got his chance

when, while he was with Holt, Reynolds called to announce a plan to rob a marijuana grow house.

During the robbery, Holt carried a gun and supplied one to Wharton. The robbery yielded trash

bags of marijuana, which the participants split. On another occasion, Reynolds, Holt, and Wharton

attempted to rob a Family Dollar store. When the teller failed to open the register, Holt hit her

with his gun, and they left.

       Ishmael Bowers, another participant in the robberies, testified that the robberies were

committed with the Short North Posse, that Reynolds organized the robberies, and that Holt was

an aggressor. Bowers described an incident in which he, Reynolds, Holt, and Wharton had broken

into a house in the Short North neighborhood and had taken four ounces of cocaine, which they

split among themselves. On another occasion, these four, along with one other, broke into a

marijuana dealer’s condominium and took electronics and marijuana. “Everybody grabbed what

they wanted to grab and left.” Later, Reynolds, Bowers, and Holt robbed that same drug dealer



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No. 17-3111, United States v. Holt


again. Holt pulled his gun and took $2,500 in cash, the dealer’s scarf, and his sunglasses. The

three men split the money.

       Quincy Battle, the victim in this case, was a marijuana dealer who lived on the east side of

Columbus. In March 2010, Reynolds decided to rob Battle, using information from “[s]omeone

on the inside” of Battle’s operations. Reynolds recruited Bowers to participate, telling him that

“he had a lick”—a robbery—“for 15 pounds of weed.” Reynolds and Bowers scoped out Battle’s

house to “[w]atch[] his movements to see when is the best time to go in his house” and to learn

“how much money he’s making.”

       On March 24, Reynolds learned that Wharton wanted to buy marijuana and drove him to

Battle’s house to do so. Later that day, Reynolds, Holt, and another person returned with Wharton

to Battle’s house with a plan to rob Battle. Wharton posed as a customer. He handed over money

and was waiting in the front room when Holt entered, his face covered and his gun raised, “telling

everybody to get down.” But Battle went for the gun. Wharton and Holt shot Battle and fled.

Battle died shortly thereafter.

       Battle’s murder remained unsolved for years. Investigators eventually began to suspect

Holt and obtained a subpoena commanding him to appear at the federal courthouse in Columbus

for a DNA sample, fingerprints, and a photograph. On August 28, 2014, Holt arrived at the

courthouse in a wheelchair.1 Holt’s girlfriend testified that Holt could propel the wheelchair

himself but could not open doors on his own. At least one officer escorted Holt and his girlfriend

to the U.S. Attorney’s satellite office in the courthouse. His girlfriend testified that, upon arriving

at the courthouse, Holt twice asked one of the men whether he needed a lawyer but was told that




1
  On July 30, 2010 (after the Battle murder), Holt was shot multiple times in the back, which
resulted in his paralysis from the chest down.
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No. 17-3111, United States v. Holt


investigators just wanted to ask him a couple of questions. An officer, however, disputed her claim

that Holt inquired about whether he needed an attorney. Holt’s girlfriend remained in the lobby

of the satellite office while Holt was questioned.

       A federal prosecutor, two federal law enforcement officers, and two Columbus Police

Department detectives interviewed Holt, hoping that he would cooperate in their investigation of

the Battle murder and other homicides.2 Pursuant to the Columbus Police Department’s policy,

one of the detectives had brought a recording device to the interview, but he discovered that the

battery was dead. No recording of the interview was made. One of the detectives wrote up a

summary of the interview approximately ten business days after it had taken place. After the

summary was completed and approved, he destroyed his notes.

       At the beginning of the interview, the prosecutor told Holt “that the only thing [he would

be] required to do is the photograph and a DNA,” that he would be “free to leave after doing that,”

and that “[h]e c[ould] leave any time he want[ed] to.” The prosecutor indicated to Holt that he

might “ask him some questions” but said that Holt did not have to answer them, had “the right to

remain silent,” and could not “be compelled to say anything.” He also told Holt that he had the

right to an attorney. Holt was never restrained, nor did he indicate that he was uncomfortable or

that he wanted to leave.

       Early in the interview, Holt gave a partial confession: he admitted that he possessed the

gun that matched shell casings found at the murder scene. He also indicated that he had done

reconnaissance for the robbery. At that point, prosecutors told Holt to leave and said that “he

need[ed] to get an attorney and talk to an attorney and tell the attorney the truth because he’s not




2
 A second prosecutor “was up in the satellite [office] as well and did poke his head in at some
point.”
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No. 17-3111, United States v. Holt


telling us the truth.” Holt pulled his shirt over his head, “started rubbing his head and said, ‘Okay,

let’s start over,’” at which point Holt told a second story and eventually a third. In this final

version, Holt stated that he had gone to the house with Reynolds to commit a robbery but that he

had not entered the house. The interview lasted approximately two hours.

       Holt was later charged with murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and

murder with a firearm during a drug trafficking crime, 18 U.S.C. § 924(j).3 He filed a pretrial

motion to suppress his statements to investigators, arguing that he had been subjected to custodial

interrogation without full Miranda warnings. In addition to testimony from Holt’s girlfriend, the

district court heard testimony from the prosecutor and two police officers who had been present

during the interview. The district court held that the interview was not custodial and denied Holt’s

motion to suppress. Holt renewed his motion at trial. The district court again denied the motion,

although noting concern at the officers’ failure to record the interview. The jury found Holt guilty

on both counts, and Holt was sentenced to life in prison for murder in aid of racketeering with a

consecutive sentence of 25 years’ imprisonment for murder with a firearm during a drug trafficking

crime. Holt brings this timely appeal.

                                                 II.

       Holt first claims that the district court erred in determining that he was not in custody during

questioning. We review the district court’s factual findings for clear error and its legal conclusions

de novo; whether Holt was in custody is a mixed question of fact and law that we review de novo.

United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003). The police are required to give

Miranda warnings “only where there has been such a restriction on a person’s freedom as to render




3
 Holt was also charged with cocaine and firearm offenses in connection with conduct on a different
date, but those charges were dismissed before trial.
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No. 17-3111, United States v. Holt


him ‘in custody.’” Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). In making this

assessment, “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom

of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,

1125 (1983) (per curiam) (quoting Mathiason, 429 U.S. at 495); see also Thompson v. Keohane,

516 U.S. 99, 112 (1995) (asking “would a reasonable person have felt he or she was not at liberty

to terminate the interrogation and leave[?]”). We look at the totality of the circumstances to

determine whether the defendant was in custody. Swanson, 341 F.3d at 528. Relevant factors

include:

          (1) the purpose of the questioning; (2) whether the place of the questioning was
          hostile or coercive; (3) the length of the questioning; and (4) other indicia of
          custody such as whether the suspect was informed at the time that the questioning
          was voluntary or that the suspect was free to leave or to request the officers to do
          so; whether the suspect possessed unrestrained freedom of movement during
          questioning; and whether the suspect initiated contact with the police . . . [or]
          acquiesced to their requests to answer some questions.

Id. at 529 (alterations in original) (quoting United States v. Crossley, 224 F.3d 847, 861 (6th Cir.

2000)).

          Holt was not in custody when he was questioned. It is undisputed that Holt was not

formally arrested or physically detained at any point before, during, or immediately after the

interview. See United States v. Panak, 552 F.3d 462, 467 (6th Cir. 2009); Swanson, 341 F.3d at

530. Although Holt was wheelchair-bound, he could propel himself in his wheelchair and never

asked to leave. Cf. Panak, 552 F.3d at 467; Crossley, 224 F.3d at 862. And, critically, the

prosecutor immediately told Holt that he was not in custody, that all he had to do was have his

photograph and DNA sample taken, and that after that was completed he was free to go. See

Howes v. Fields, 565 U.S. 499, 517 (2012) (“Taking into account all of the circumstances of the

questioning—including especially the undisputed fact that respondent was told that he was free to

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No. 17-3111, United States v. Holt


end the questioning and to return to his cell—we hold that respondent was not in custody within

the meaning of Miranda.”). The prosecutor also advised Holt that he did not need to answer any

questions. We have called this the “[m]ost important” factor to the custody analysis. Swanson,

341 F.3d at 530 (“Most important to our analysis, though, is that Swanson was explicitly told by

[the officer] that he was not under arrest and that he did not have [t]o speak with him if he did not

choose to.”); see Panak, 552 F.3d at 467–68; United States v. Salvo, 133 F.3d 943, 951 (6th Cir.

1998).

         The other circumstances to which Holt points do not cause us to believe that a reasonable

person, unrestrained and told he was free to go, would have felt his freedom restricted to “the

degree associated with a formal arrest.” Beheler, 463 U.S. at 1125. Holt points out that he was

subpoenaed to appear at the U.S. Attorney’s Office’s satellite office in the courthouse. He does

not dispute, however, that the subpoena ordered him only to provide his DNA and fingerprints and

to have his photograph taken. See United States v. Anglian, 784 F.2d 765, 769 (6th Cir. 1986)

(rejecting, based in part on the plain words of the subpoena, defendant’s argument that he

subjectively believed that the subpoena required him to make a statement). And while the location

may have been intimidating, Miranda warnings are not required “simply because the questioning

takes place in the station house” or other “coercive environment.” Mathiason, 429 U.S. at 495;

see also Beheler, 463 U.S. at 1125; Mason v. Mitchell, 320 F.3d 604, 632 (6th Cir. 2003).

         Holt also argues that the continued questioning made the interview custodial. The length

of Holt’s interview—approximately two hours—supports his argument that he was in custody, but

that fact is offset by others, including those discussed above. See Fields, 565 U.S. at 515; see also

Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) (noting that a two-hour interview weighed in

favor of custody but did not overcome other countervailing factors). Although the officers



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No. 17-3111, United States v. Holt


continued to question Holt after he gave his first version of the story, the prosecutor first had told

Holt to leave and that he “need[ed] to get an attorney and talk to an attorney and tell the attorney

the truth because he’s not telling us the truth.”4 At that point, Holt pulled his shirt over his head,

started rubbing his head, and then said “Okay, let’s start over,” before giving a second and then a

third version of the events. A reasonable person who had just been told to leave and speak to an

attorney would believe that he was at liberty to terminate the questioning and leave.

       Nor does the fact that the prosecutor and the officers had planned to question him transform

his interview into a custodial one. Stansbury v. California, 511 U.S. 318, 325 (1994) (per curiam)

(“Even a clear statement from an officer that the person under interrogation is a prime suspect is

not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the

police decide to make an arrest.”); see also Mathiason, 429 U.S. at 495. Rather:

       an officer’s views concerning the nature of an interrogation, or beliefs concerning
       the potential culpability of the individual being questioned, may be one among
       many factors that bear upon the assessment whether that individual was in custody,
       but only if the officer’s views or beliefs were somehow manifested to the individual
       under interrogation and would have affected how a reasonable person in that
       position would perceive his or her freedom to leave.

Stansbury, 511 U.S. at 325. Here, although the prosecutor informed Holt that he was a target of

the investigation, he also explicitly informed Holt that he did not have to answer any questions and

was free to go.

       Finally, Holt stresses the officers’ failure to record the interview. He claims that “[t]he

lack of a recording, as required by [Columbus Police Department policy], certainly works against

Mr. Holt’s basic rights to fundamental fairness.” Without the recording, Holt argues, there was no




4
 Holt cites trial testimony in which a detective stated that he did not recall anyone telling Holt to
get an attorney at that point in the questioning. The district court, however, continued to credit the
prosecutor’s previous testimony. That finding was not clearly erroneous.
                                                 -8-
No. 17-3111, United States v. Holt


“objective evidence” showing what occurred in the interview.            “Only with that complete

information,” he reasons, could the district court have made “a meaningful determination of the

custodial nature of this interrogation.” As Holt concedes, however, the mere violation of police

department policy is insufficient to require suppression of the interview. United States v. Luck,

852 F.3d 615, 623–24 (6th Cir. 2017). To the extent that Holt argues that the failure to record

should be considered in assessing the credibility of the prosecutor’s and the officers’ recollections

of the interview, the district court took account of the failure to record and nonetheless found the

officials’ testimony credible. We have no reason, reviewing only a cold record, to find that

determination to be clearly erroneous.

       Holt was not arrested or physically detained. He was told that he could leave at any time

and that he did not need to answer any questions. Considering the totality of the circumstances,

we hold that Holt was not in custody when he was questioned. The district court did not err in

denying Holt’s motion to suppress.

                                                III.

       Holt next claims that there was insufficient evidence to sustain his conviction for murder

in aid of racketeering. We review a sufficiency-of-the-evidence claim de novo and ask whether,

viewing the evidence in the light most favorable to the government, “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979) (emphasis in original); see United States v. Taylor, 800 F.3d 701, 711

(6th Cir. 2015). “‘Circumstantial evidence alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable hypothesis except that of guilt.’ The jury may draw

any reasonable inferences from direct, as well as circumstantial, proof.” United States v. Tocco,




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No. 17-3111, United States v. Holt


200 F.3d 401, 424 (6th Cir. 2000) (internal citation omitted) (quoting United States v. Spearman,

186 F.3d 743, 746 (6th Cir. 1999)).

       Holt was convicted of committing a violent crime in aid of racketeering (VICAR),

specifically, murder. 18 U.S.C. § 1959(a)(1). An individual has committed a VICAR offense if

he, “as consideration for the receipt of, or as consideration for a promise or agreement to pay,

anything of pecuniary value from” or “for the purpose of gaining entrance to or maintaining or

increasing position in an enterprise engaged in racketeering activity,” commits a crime of violence,

including murder. 18 U.S.C. § 1959(a). Holt challenges the first of these elements, arguing that

there was insufficient evidence that he participated in the Battle robbery (and ultimately in Battle’s

murder) with the requisite purpose.5 We disagree and hold that a reasonable jury could conclude

that Holt participated “as consideration for the receipt of, or as consideration for a promise or

agreement to pay, anything of pecuniary value from” the Short North Posse.6



5
 Holt also challenges the government’s failure to prove a non-element: a “pattern of racketeering.”
This is not an element of a VICAR offense, although it is an element of the related but distinct
RICO offense, 18 U.S.C. § 1962. See United States v. Odum, 878 F.3d 508, 517–18 (6th Cir.
2017), vacated on other grounds sub nom. Frazier v. United States, No. 17-8381, 2018 WL
1640324 (mem.) (U.S. Oct. 9, 2018). Holt was not charged with or convicted of a RICO violation,
and he made no argument why proof of a “pattern of racketeering” would be required to sustain a
VICAR conviction. We note that the district court did not instruct the jury that the government
had to prove a pattern of racketeering and that Holt did not object.
  To the extent that Holt’s argument might be read to claim instead that the government failed to
prove that the Short North Posse “engaged in racketeering activity,” his claim clearly fails. The
parties stipulated that the Short North Posse and its associates were “an enterprise as defined by
18 U.S.C. § 1961(4)” and that the Short North Posse was a criminal organization “whose members
and associates engaged in murders, attempted murders, drug trafficking, weapons trafficking,
extortion, robbery, arson, and other crimes within the Southern District of Ohio.” See 18 U.S.C.
§ 1961(1) (defining “racketeering activity” to include “any act or threat involving murder, . . .
arson, robbery, bribery, [or] extortion”).
6
 Because we find that there was sufficient evidence of this pecuniary purpose, we need not address
whether there was also sufficient evidence of the position-based purpose. See 18 U.S.C. § 1959(a)
(“for the purpose of gaining entrance to or maintaining or increasing position in an enterprise
engaged in racketeering activity”).
                                                -10-
No. 17-3111, United States v. Holt


       Holt concedes that Reynolds planned the Battle robbery and that Reynolds was a member

of the Short North Posse. Holt does not dispute his own involvement in the Battle robbery and

homicide. But he claims the robbery was not a Short North Posse robbery; instead, it was one of

many side hustles that Reynolds engaged in as a freelance criminal. There was, however, sufficient

evidence from which a rational jury could disagree. The parties stipulated that one of the purposes

of the enterprise—“[t]he Short North Posse, including its members and associates”—was

“[e]nriching its members and associates through, among other things, the commission of crimes

involving . . . robbery . . . , burglary, theft, and breaking and entering.” They also stipulated that

robbery was a racketeering activity of the enterprise, that members of the gang’s Cut Throat and

Homicide Squad—including Reynolds—“specialized in murders and robberies of rival gangs,

other drug dealers, and targets thought to have large sums of cash or firearms,” and that gang

members often recruited non-member associates to assist with the robberies. Reynolds, a member

of the Short North Posse, organized some of these robberies and would often recruit non-gang

members to assist in executing them. One of these individuals, Ishmael Bowers, described the

robberies he and Holt had participated in as having been committed on behalf of the Short North

Posse. Battle was a drug dealer outside of the Short North neighborhood. Given that the Short

North Posse often engaged in robberies, particularly of other drug dealers, and given that one

participant in the Battle robbery had characterized the robberies he committed with Reynolds as

ones he committed with the Short North Posse, a rational jury could conclude that Reynolds, a

member of the Short North Posse, organized the Battle robbery not as a freelancer but as a gang

member. See Tocco, 200 F.3d at 424 (stating that evidence “need not remove every reasonable

hypothesis except that of guilt” (quoting Spearman, 186 F.3d at 746)).




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No. 17-3111, United States v. Holt


       Having concluded that this was a Short North Posse robbery, a rational jury could also

conclude that Holt participated in the robbery to gain something of pecuniary value from the gang.

Witnesses testified that Holt had participated in other robberies with Reynolds in which Holt had

received a cut of the proceeds. A rational jury could consider the evidence that Holt had previously

engaged in robberies led by Reynolds in which the participants had split the proceeds and conclude

that such was the arrangement when Holt agreed to Reynolds’ plan to rob Battle. There was

sufficient evidence from which a jury could conclude beyond a reasonable doubt that Holt

participated in the robbery and ultimate murder of Battle “as consideration for the receipt of, or as

consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise

engaged in racketeering activity.” 18 U.S.C. § 1959(a).

                                               ***

       Accordingly, we AFFIRM the district court’s judgment.




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