PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 99-4093

SHAHEEM JOHNSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 99-4094

RAHEEM JOHNSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CR-97-314-A)

Argued: May 3, 2000

Decided: July 17, 2000

Before MURNAGHAN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Murnaghan and Judge Michael joined.

_________________________________________________________________
COUNSEL

ARGUED: Kenneth Michael Robinson, THE ROBINSON LAW
FIRM, Washington, D.C., for Appellant Shaheem Johnson; Preston
Burton, LAW OFFICES OF PLATO CACHERIS, Washington, D.C.,
for Appellant Raheem Johnson. William Neil Hammerstrom, Jr.,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Cameron Robinson-Kourtesis, Nikolaos P. Kourtesis,
THE ROBINSON LAW FIRM, Washington, D.C., for Appellant
Shaheem Johnson. Helen F. Fahey, United States Attorney, Peter H.
White, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Shaheem and Raheem Johnson were convicted on nineteen counts
related to their drug conspiracy, in furtherance of which they mur-
dered five people. They now appeal their convictions. Finding no
reversible error, we affirm.

I.

On June 4, 1998, appellants Shaheem and Raheem Johnson, identi-
cal twin brothers, were charged in federal district court with conspir-
acy to distribute cocaine; murder in aid of racketeering; murder using
a firearm during a drug trafficking offense; and possession of a fire-
arm by a convicted felon. Shaheem was charged with engaging in a
continuing criminal enterprise; conspiracy to commit money launder-
ing; carrying a firearm during a drug trafficking offense; distribution
of cocaine base; and possession with intent to distribute cocaine base.
Raheem was charged with murder in aid of racketeering; and murder
using a firearm during a drug trafficking offense.

In a trial that lasted seven weeks, the government presented testi-
mony and evidence that demonstrated that Shaheem, Raheem, and
others organized a large-scale drug operation. The Johnsons obtained

                    2
cocaine from New York and Maryland, and distributed it in Ohio,
Virginia, North Carolina, and Maryland. The government showed that
in early 1992, Shaheem started the drug enterprise, and Raheem soon
took over part of the distribution for his brother. They used numerous
couriers and cars, titled in various names, to transport drugs, weapons,
and cash.

The government also presented testimony and evidence that
showed that Shaheem and Raheem were involved in five murders
related to their conspiracy, as follows. On July 30, 1995, Raheem,
Shawn Thomas, and Antonio Stevens drove to Philadelphia together,
where Raheem, who believed Stevens had stolen his money, shot and
killed Stevens. In March 1996, Raheem, Shaheem, and others shot
and killed Bernard Franklin, whom Shaheem believed had robbed his
residence and attacked his girlfriend. In December 1996, Shaheem
and Raheem hired Eldon Brown to kill Richard Villa, whom they
believed was planning to steal from them. And, in March 1997,
Raheem and Rickey Piranti murdered Shawn Thomas and his girl-
friend, Tracy Morgan. Because Thomas had recently been arrested,
Raheem feared Thomas might incriminate Raheem in order to make
a deal with the police on his own charges.

Shaheem and Raheem were both convicted on all counts charged
except that as to their joint murder counts, Shaheem was found guilty
of voluntary manslaughter and Raheem was found guilty of second
degree murder. Both Shaheem and Raheem were sentenced to multi-
ple life sentences. They now appeal.

II.

Shaheem argues that the district court erred when it failed properly
to instruct the jury on the continuing criminal enterprise count. The
federal CCE statute imposes penalties on "[a]ny person who engages
in a continuing criminal enterprise." 21 U.S.C.§ 848(a). It further
states that "a person is engaged in a continuing criminal enterprise if
(1) he violates any provision of this subchapter or subchapter II of this
chapter the punishment for which is a felony, and (2) such violation
is a part of a continuing series of [such] violations." 21 U.S.C.
§ 848(c) (emphasis added). When the district court instructed the jury
on the CCE count, it outlined the elements of the crime, and specifi-

                    3
cally instructed the jury that "[t]he phrase, [`]A continuing series of
violations,['] means three or more violations of the federal narcotics
laws, which are in some way related to one another." J.A. 837. At the
time, this court had held that the jury did not need to unanimously
find each violation that comprised the series. See United States v.
Hall, 93 F.3d 126, 129 (4th Cir. 1996), cert . denied, 519 U.S. 1151
(1997). Accordingly, the district court did not instruct the jury that it
must unanimously find each violation.

Shaheem claims that the district court erred when it failed to
instruct the jury that it must be unanimous in its finding of each viola-
tion comprising the continuing series of violations. Specifically,
Shaheem contends that under Richardson v. United States, 526 U.S.
813 (1999), which was decided after his trial, the Supreme Court
required that the jury be instructed that it must be unanimous in find-
ing each individual "violation" supporting the CCE conviction.

As Shaheem concedes, "[t]rial counsel did not object to the jury
instructions on Count 2, the CCE count," Appellants' Br. at 32, and,
therefore, we review the district court's failure to instruct the jury on
unanimity in the CCE charge for plain error, see id. Under plain error
review, we can only correct an error not objected to at trial if there
is an "error," that is "plain," and that"affect[s] substantial rights."
United States v. David, 83 F.3d 638, 641 (4th Cir. 1996) (quoting
United States v. Olano, 507 U.S. 725, 730-32 (1993)). And, even if
the error is plain and affects substantial rights, then we should not
exercise our discretion to correct the error "unless a miscarriage of
justice would result or the error seriously affect[s] the fairness, integ-
rity or public reputation of judicial proceedings independent of the
defendant's innocence." United States v. Cedelle, 89 F.3d 181, 184
(4th Cir. 1996) (citations omitted) (internal quotation marks omitted).

We agree with Shaheem that, under Richardson, the district court
erred when it failed to instruct the jury that it must unanimously find
each violation that constitutes the continuing series of violations. See
Richardson, 526 U.S. at 815 ("[A] jury has to agree unanimously
about which specific violations make up the `continuing series of vio-
lations.' . . . That is to say, a jury in a federal criminal case brought
under § 848 must unanimously agree not only that the defendant com-
mitted some `continuing series of violations' but also that the defen-

                     4
dant committed each of the individual `violations' necessary to make
up that `continuing series.'"); see also United States v. Brown, 202
F.3d 691, 699 (4th Cir. 2000) (recognizing that Richardson abrogated
United States v. Hall, the case in which this court held that the jury
need not unanimously find each violation).

We are likewise convinced that the error was plain error. In John-
son v. United States, 520 U.S. 461, 468 (1997), the Supreme Court
held that an error is plain "where the law at the time of trial was set-
tled and clearly contrary to the law at the time of appeal." This is pre-
cisely the case that we have here. Not only our circuit but others held
before Richardson that jury unanimity on which three offenses made
up the series of violations was not necessary. See Hall, 93 F.3d at
129; United States v. Anderson, 39 F.3d 331, 350-51 (D.C. Cir.
1994); United States v. Lehder-Rivas, 955 F.2d 1510, 1519 n.6 (11th
Cir. 1992). Richardson thereafter held that it was. See Richardson,
526 U.S. at 815.

Even so, we are satisfied that this is not a case in which we should
exercise our discretion to correct the error. At least fifteen of the
alleged fifty-seven overt acts the Johnsons engaged in in support of
their conspiracy to distribute cocaine were violations of narcotics
laws by Shaheem alone. J.A. 98-111. And, the government adduced
overwhelming evidence in the form of co-conspirators' testimony and
drugs found at Shaheem's residence to show that Shaheem committed
a multitude of violations of the federal narcotics laws. Even Shaheem
concedes that at least two counts for which Shaheem was convicted
could serve as predicate violations for the CCE conviction.1 See
Appellants' Reply & Opposition to Government's Attempt to File
Rule 28(j) Supplement, at 2. Shaheem's narrow point is that we can-
not technically know whether the jury agreed unanimously on the
third violation from any of the fifteen overt acts. And, technically, this
may be correct. But if ever there were a case in which we are confi-
dent that there is not a miscarriage of justice, it is this one, with a
multitude of offenses, none of which the defendant seriously chal-
_________________________________________________________________
1 Shaheem also concedes, by implication, that certain alleged overt acts
could qualify as violations. See Appellants' Br. at 34 ("The government
set forth over fifty overt acts in Count 1, many of which do not qualify
as `violations' . . . .").

                     5
lenges.2 Likewise, we are confident that the error did not seriously
affect the fairness, integrity, or public reputation of judicial proceed-
ings. Because the evidence adduced at trial was overwhelming, we are
convinced that "based upon the record in its entirety, the proceedings
against the accused resulted in a fair and reliable determination of
guilt." United States v. Hastings, 134 F.3d 235, 244 (4th Cir.) (quot-
ing Cedelle, 89 F.3d at 186), cert. denied, 523 U.S. 1143 (1998).

III.

We now turn to the various other challenges the Johnsons make to
their convictions and sentences.
_________________________________________________________________

2 Indeed, Shaheem's strategy throughout has been not to contest his
involvement in drug trafficking. As illustrated by his counsel's closing
argument, the focus of his trial strategy was not to claim innocence of
drug dealing, but rather to persuade the jury not to convict him on the
murder charges and thus avoid the death penalty. Shaheem's counsel told
the jury in closing argument, "Nobody is fighting these drugs. There's no
way out on these drugs. You don't hear me talking about those drugs, do
you?" Trial Transcript, Vol. XXII (Dec. 11, 1998), at 191. He made other
statements such as "Shaheem Johnson sold drugs," id. at 193, "That
doesn't mean Shaheem isn't guilty of drug dealing," id. at 202, and
Shaheem "[s]old drugs all his life," id. at 215. Likewise, on appeal
Shaheem has acknowledged that he was involved in drug trafficking. As
we discuss in Section III.A., infra, the Johnsons (Shaheem and Raheem)
argue that the evidence was insufficient to convict them on a single drug
conspiracy because they were involved in multiple conspiracies. In the
course of making this argument, they concede drug dealing on a large
scale:

          The [Johnsons] were both engaged in drug distribution activities,
          and they both knew about the other's operation, but those facts
          alone do not establish that they worked jointly in a common plan
          or scheme. The evidence revealed that appellants each had their
          own drug operations, with their own suppliers, distributors, and
          couriers. On occasion, they would purchase large quantities of
          narcotics together.

Appellants' Br. at 25.

                     6
A.

The Johnsons argue that the evidence presented at trial was insuffi-
cient to show that they were engaged in a single conspiracy to distrib-
ute cocaine. However, there was testimony that they traveled together
to New York to obtain cocaine, J.A. 286-88; that they pooled their
funds to purchase drugs from suppliers in New York, J.A. 215-17,
301-03; that together they purchased weapons from the same co-
conspirator, J.A. 387-88; that Raheem took over territory to aid
Shaheem in supplying cocaine to Maryland customers, J.A. 214-15;
that they together shot and killed Bernard Franklin, someone whom
they believed had stolen drug money from Shaheem, J.A. 194-95,
198-99, 227, 320, 343, 476, 702-05; and that together they hired
someone to murder Richard Villa, whom they suspected wanted to
steal from them, J.A. 520-21. Thus, we are confident that there was
sufficient evidence in the record so that the jury could reasonably
have found that they conspired together to distribute cocaine.

The Johnsons also claim that there was insufficient evidence to
prove that they aided, abetted, and hired Eldon Brown to murder
Richard Villa in violation of 18 U.S.C. § 1959. Under this section, the
government had to prove that Brown killed Villa"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 racketeer-
ing activity, or for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering activity
. . . ." 18 U.S.C. § 1959. According to the Johnsons, Brown had sev-
eral reasons to murder Villa, none of which would have increased
Brown's position in the Johnsons' racketeering activity. However, we
are convinced that there was sufficient evidence in the record for the
jury to find both that there was an agreement between the Johnsons
and Brown by which Brown would be paid from the Johnsons' racke-
teering proceeds to murder Villa, and that Brown was attempting to
increase or maintain his position in the Johnsons' drug enterprise.
Brown testified that he told the Johnsons that in order to "test" Villa,
he told Villa that he was going to rob the Johnsons, and that Villa
agreed to help. J.A. 516-18. He also testified that Shaheem told him
that Shaheem and Raheem had work for Brown, and that they wanted
him to murder "weak links" in the organization. J.A. 520 21. Finally,
he testified that the Johnsons agreed to pay Brown $150,000 for three

                    7
murders, including the murder of Villa, J.A. 539, and that Shaheem
gave Brown the handgun he used to murder Villa, J.A. 524.

B.

The Johnsons argue that the district court erred by not excluding
hearsay statements allegedly made by Shawn Thomas regarding
Raheem's involvement in the murder of Antonio Stevens. Thomas
was unavailable to testify at trial because Raheem murdered him
before trial. Three witnesses testified that Thomas told them that he
was with Raheem when Raheem murdered Stevens.3 The district
court appears to have admitted Thomas' hearsay because, inter alia,4
Raheem forfeited his hearsay objections, under Fed. R. Evid.
804(b)(6), by having caused the unavailability of Thomas as a witness.5

The district court did not abuse its discretion in so holding. Under
Rule 804(b)(6), "[a] statement offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness" is admissible
as an exception to the rule against hearsay. Here, Raheem murdered
Thomas at least in part to procure the unavailability of the only wit-
ness to his murder of Antonio Stevens.
_________________________________________________________________
3 The witnesses who recounted details of the murder, as told to them
by Thomas, were Jeremy Williams, J.A. 434-42; Keah Lorrick, J.A. 583-
97; and Larry Jackson, J.A. 633-48, 801-04.
4 The district court also admitted the hearsay statements as statements
against Thomas' penal interest, under Fed. R. Evid. 804(b)(3), as state-
ments by a coconspirator made in furtherance of the conspiracy, under
Fed. R. Evid. 801(d)(2)(E), and as otherwise reliable and probative state-
ments under Fed. R. Evid. 807, the residual exception to the hearsay rule.
However, because we hold that the district court did not abuse its discre-
tion by admitting the statements under Fed. R. Evid. 804(b)(6), we
decline to review the court's other grounds for admitting the testimony.

5 In its summation of its ruling on the admissibility of the Thomas hear-
say, the district court did not specifically cite Rule 804(b)(6) as a ground
for its decision to admit the testimony. However, the government argued
that Rule 804(b)(6) was the primary ground for admissibility, J.A. 411-
27, and the court discussed the rule and its application to Raheem's case
before its summation, J.A. 427.

                     8
Raheem argues that Thomas' statements were not properly admit-
ted under this rule for two reasons. First, Raheem claims that the dis-
trict court should have conducted a hearing to confirm, by clear and
convincing evidence, that Raheem did cause Thomas' unavailability.
But see United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999)
(holding that a trial court need not hold a hearing under Rule
806(b)(6), but rather that it can admit the evidence at trial "contingent
upon proof of the underlying murder by a preponderance of the evi-
dence"), cert. denied, 120 S. Ct. 968 (2000). However, the court did
hold a lengthy conference outside the presence of the jury to discuss
the admission of Thomas' hearsay, as briefed by the government
before trial. At that time Raheem's counsel did not request a separate
evidentiary hearing, and did not contest that Raheem killed Thomas
to prevent him from testifying against Raheem on matters related to
the conspiracy. Rather, counsel's narrow argument was that the gov-
ernment could not prove that Thomas was killed to prevent him from
testifying specifically about the Stevens murder. Therefore, we cannot
conclude that the district court plainly erred when it accepted the gov-
ernment's position that Raheem did kill Thomas, presumably contin-
gent on the government proving that Raheem did cause Thomas'
unavailability. Even were we to conclude that the district court was
required to conduct a separate evidentiary hearing to assess whether
the government could show that Raheem did cause the unavailability
of Thomas as a witness, we do not believe the district court's failure
to conduct such a hearing in this case harmed Raheem. The govern-
ment presented evidence to prove that Raheem murdered Thomas in
the course of the trial, because Raheem was charged with murdering
Thomas. Additionally, we are confident that, in this case, where the
jury was convinced beyond a reasonable doubt that Raheem murdered
Thomas in furtherance of the conspiracy, there was sufficient evi-
dence presented at trial that Raheem caused Thomas' unavailability
as a witness.

Second, Raheem claims that even though Rule 804(b)(6) waives
his right to object to the fact that Thomas is not available for cross-
examination, the hearsay testimony must be "otherwise admissible as
if Thomas were available to testify." Appellants' Br. at 48 (citing
United States v. Thevis, 665 F.2d 616 (5th Cir. 1982) (holding, before
Rule 804(b)(6) was enacted, that even when the witness' unavaila-
bility is shown by clear and convincing evidence to have been caused

                     9
by the objecting party, "the trial court should scrutinize the proffered
statements to ensure that the evidence is not unreliable"), cert. denied,
459 U.S. 825 (1982)). Even if we were to conclude that in order to
admit statements under Rule 804(b)(6), the statements must be of a
nature such that they would be admissible if the unavailable witness
were available to testify, Raheem has not articulated how such a
requirement would make Thomas' statements inadmissible. That is,
Raheem has failed to articulate how, if Thomas had made the state-
ments himself on the witness stand, they would have been inadmissi-
ble. According to the witnesses who did testify, Thomas claimed to
have been present at the murder of Stevens and to have witnessed
Raheem shoot and kill Stevens. Thus, Thomas apparently had first-
hand knowledge of Raheem's murder of Stevens and presumably
could have testified to this had Raheem not murdered Thomas.

C.

The Johnsons also claim that the district court erred when it denied
their motion for severance, because they were actually involved in
separate drug enterprises and were thus each prejudiced by evidence
presented against the other at trial.6 For the reasons below, we con-
clude that the district court did not err when it denied the Johnsons'
motion for severance. First, the district court provided a cautionary
instruction to the jury to prevent it from grouping all of the evidence
against both defendants:

          A separate crime is alleged against one or more of the
          defendants in each count of the indictment. Each alleged
          offense and any evidence pertaining to it should be consid-
          ered separately by the jury.

          The fact that you find one defendant guilty or not guilty
          of one of the offenses charged should not control your ver-
_________________________________________________________________
6 The Johnsons also argue that because they are identical twins, the jury
could easily have been confused, and they should have been tried sepa-
rately. However, they cite nothing in the record to indicate that witnesses
confused them or that they were not separately identified. Thus, we are
not convinced that they were prejudiced by being tried together merely
because they are twins.

                     10
          dict as to any other offense charged against that defendant
          or any other defendant. You must give separate and individ-
          ual consideration to each charge against each defendant.

J.A. 833-34; see United States v. Porter , 821 F.2d 968, 972 (4th Cir.
1987) ("No prejudice exists if the jury could make individual guilt
determinations by following the court's cautionary instructions,
appraising the independent evidence against each defendant."), cert.
denied, 485 U.S. 934 (1988). Second, the jury did distinguish the evi-
dence against each defendant as demonstrated by the fact that it
reached differing verdicts for the Johnsons on two counts involving
murder. See id. ("Convictions should be sustained if it may be
inferred from the verdicts that the jury meticulously sifted the evi-
dence.").

D.

The Johnsons also claim that the district court erred when it did not
permit them to present testimony related to the misconduct of a gov-
ernment witness, Rickey Piranti. The Johnsons wanted to question a
witness about homicides allegedly committed by Piranti, which did
not result in a conviction, in order to show that Piranti might have lied
to avoid an indictment on those homicides. However, we are confi-
dent that the district court did not err when it refused to allow the
Johnsons to question another witness about Piranti's alleged homi-
cides. Fed. R. Evid. 608(b) provides that,

          [s]pecific instances of the conduct of a witness, for the pur-
          pose of attacking . . . the witness' credibility, other than con-
          viction of crime . . ., may not be proved by extrinsic
          evidence. They may, however, in the discretion of the court,
          if probative of truthfulness or untruthfulness, be inquired
          into on cross-examination of the witness . . . concerning the
          witness' character for truthfulness or untruthfulness.

Under Rule 608(b), the Johnsons could not question other witnesses
about Piranti's alleged homicides, but they were permitted to question
Piranti, on cross-examination, about the alleged homicides. Addition-
ally, we are confident that the district court did not err in refusing to
allow the Johnsons to question a witness about Piranti's misconduct,
because the district court found that such questioning would only con-
fuse the jury on a tangential matter: "to allow introduction of this

                     11
question before this witness . . . is only going to inject confusion. It's
not relevant to any factor in terms of proof of this conspiracy. It
doesn't tend to prove or disprove any material fact in issue. Signifi-
cant other evidence has already been presented and more will be pres-
ented, I'm sure, bearing on this witness' credibility, and all this will
do is promote confusion, it's a collateral matter." J.A. 712-13.

E.

Raheem contends that the trial court abused its discretion when it
admitted testimony by a forensic expert, Sandra Wiersema, that com-
pared tire tread impressions recovered from the scene of Raheem's
alleged killing of Antonio Stevens with tires recovered from
Raheem's car. At trial he objected to the testimony on the grounds
that it was prejudicial and inflammatory because millions of the par-
ticular tires that made the tread marks were in circulation and it was
impossible to know when the tread marks had been left at the scene
of the crime. However, we conclude that the court did not err in find-
ing that the testimony's probative value outweighed any prejudicial
value. The court properly weighed the factors relevant to the admissi-
bility of the evidence -- eyewitness statements that a car matching
the description of Raheem's car was seen leaving the scene of the
murder; the timeliness in which the tire tread impressions were made
after the murder; the fact that the expert could identify the particular
make of the tire that left the marks; the fact that such tires were not
manufactured until six months before the murder; and the likely num-
ber of vehicles with this type of tire -- and ruled that the tire tread
impressions were relevant and material. And, defense counsel vigor-
ously cross-examined Wiersema, and made the point, in closing argu-
ment, that the tire tread impressions only matched the tread marks to
Goodyear Eagle Aqua Tred tires, and did not necessarily match
Raheem's car to the impressions.

The Johnsons also argue that the district court erred by excluding
their expert witness, Dr. Brownlee, from testifying regarding the
cause and manner of death of two of the Johnsons' alleged homicide
victims, Shawn Thomas and Tracy Morgan. We cannot say that the
district court erred by excluding Brownlee's testimony, because the
Johnsons did not disclose required information about the expert's
scheduled testimony to the government before trial. Under Fed. R.
Crim. P. 16(b)(1)(C), the Johnsons were obligated to disclose to the

                     12
government a written summary of the expert's expected testimony,
including the witness' opinions, the bases and reasons therefor, and
the witness' qualifications. Although the Johnsons do claim that they
turned over Brownlee's resume to the government, there is nothing in
the record that demonstrates that they complied with the other
requirements of Rule 16, and the transcript indicates that defense
counsel did not disclose the doctor's opinion to the government, J.A.
799.

F.

Raheem argues that he could not be sentenced consecutively under
both 18 U.S.C. § 1959(a)(1) and § 924(j) for the murders of four indi-
viduals, because the charge for RICO murder, under section 1959, is
a lesser included offense of the charge for committing a murder using
a firearm during a drug trafficking offense, under section 924.7

The district court did not err when it sentenced Raheem separately
for both convictions. The same conduct can support convictions and
sentencing under two different federal statutes as long as each statute
requires proof of an element that the other does not. See United States
v. Terry, 86 F.3d 353, 356 (4th Cir. 1996) ("[F]or purposes of double
jeopardy analysis we examine only the statutory elements to deter-
mine if the elements of the two crimes necessarily overlap. . . .
Because each crime charged contains an element that the other does
not, the statutes pass the Blockburger test." (citing Blockburger v.
United States, 284 U.S. 299 (1932))), cert . denied, 524 U.S. 940
(1998). If the elements of the two statutes do not necessarily overlap,
_________________________________________________________________
7 To prove a violation of section 1959(a)(1), the government must show
that there was (1) an enterprise engaged in racketeering activity, (2) mur-
der or aiding and abetting another person in murdering, and (3) murder
undertaken for the purpose of gaining entrance into or maintaining the
defendant's position in the enterprise, or in exchange for anything of
pecuniary value. See 18 U.S.C. § 1959(a)(1).

To prove a violation of section 924(j), the government must show that
there was (1) a drug trafficking crime committed, (2) the use of a firearm
during the commission of the trafficking crime, and (3) malice afore-
thought in causing the death of the victim in relation to the commission
of the crime. See 18 U.S.C. § 924(j).

                    13
"then multiple punishments are presumed to be authorized absent a
clear showing of contrary Congressional intent." Id. Under section
1959, there is no requirement, as there is under section 924, that a
firearm be used or that there be a drug trafficking crime. Likewise,
under section 924, there is no requirement, as there is under section
1959, that the killing have anything to do with a racketeering enter-
prise, or that there be a promise or exchange of anything of pecuniary
value. Therefore, each statutory provision includes an element that the
other does not, and multiple punishments are presumed.

Raheem argues that there was clear congressional intent that an
individual not be separately punished for violating both provisions.
He cites a House Report that is part of the legislative history of the
Violent Crime Control and Law Enforcement Act of 1994, under
which both statutory provisions were passed. It reads: "[i]n carrying
out directions from the Congress, the U.S. Sentencing Commission
shall . . . avoid duplicative punishment for substantially the same
offense." H. Rep. No. 103-711, at 388. However, we do not read this
direction to the Sentencing Commission to generally prohibit separate
punishment for individual offenses, which have different elements,
even when they relate to the same conduct. Accordingly, we cannot
conclude that this general directive to the Sentencing Commission
expresses clear congressional intent that an individual not be punished
separately under section 1959 and section 924. Therefore, we con-
clude that the district court did not err when it permitted Raheem to
be sentenced separately under each provision.8

CONCLUSION

For the reasons stated herein, we affirm the Johnsons' convictions
on all counts.

AFFIRMED
_________________________________________________________________
8 We also reject Raheem's claim that his trial counsel was ineffective
because the record does not support this claim. And, we have reviewed
the claims made by Shaheem in his motion for leave to file a pro se sup-
plemental brief, and finding those claims to be meritless, we deny the
motion.

                    14
