                                  PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                   No. 16-4633


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,

                 Defendant - Appellant.


                                   No. 16-4635


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

MERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love
Uhuru,

                 Defendant - Appellant.


                                   No. 16-4637


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.
SHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady,

                  Defendant - Appellant.


                                    No. 16-4641


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

            v.

KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a
Babi,

                  Defendant - Appellant.


                                    No. 16-4837


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

            v.

ANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata
Baraka,

                  Defendant - Appellant.


                                    No. 16-4838


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,


                                           2
             v.

HALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big
Homey,

                    Defendant - Appellant.


Appeals from the United States District Court for the Western District of Virginia, at
Charlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-
00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-
00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)


Argued: January 24, 2018                                        Decided: July 31, 2019


Before KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Diaz and Senior Judge Duncan joined.


ARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham
Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for
Appellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens,
Federal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;
Aaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia;
Rhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville,
Virginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A.
Mountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.




                                             3
BARBARA MILANO KEENAN, Circuit Judge:

        This case involves the prosecution of several members of a violent street gang

known as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury

convicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),

Mersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis)

(collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. § 1962(d), based on their activities related to the

gang.

        Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also

were convicted, in relation to the murder of an off-duty police officer, of violent crimes in

aid of racketeering activity in violation of 18 U.S.C. § 1959 (VICAR) by committing

kidnapping and murder under Virginia law, as well as witness tampering by means of

murder in violation of 18 U.S.C. § 1512(a). The capital defendants were sentenced to serve

terms of life imprisonment. Halisi and Stokes additionally were convicted of obstruction

of justice in violation of 18 U.S.C. § 1512(c)(1). 1

        On appeal, the defendants raise several challenges concerning their trial and

sentences. Upon our review of these arguments, we vacate in part with respect to the capital

defendants’ convictions that are predicated on commission of kidnapping under Virginia



        1
         The other crimes of conviction include Hobbs Act robberies in violation of 18
U.S.C. § 1951(a), VICAR offenses in violation of 18 U.S.C. § 1959, and various
convictions for the use or carry of a firearm during and in relation to a violent crime in
violation of 18 U.S.C. § 924(c).

                                              4
law. Accordingly, we also remand the capital defendants’ convictions for resentencing.

We affirm the balance of the district court’s judgments.



                                             I.

        The Bloods is a nationwide street gang. 2 Groups of Bloods are organized into “sets”

or smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi,

Stokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present

case.

        DNGS operates through a hierarchical structure. Halisi served as “high OG” or

“Double OG,” DNGS’s leader. Stokes was second in command as “low [OG].” Kweli

also held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another

DNGS leader was responsible for operations conducted by incarcerated DNGS members.

These four individuals composed DNGS’s “Roundtable,” or leadership council. Reporting

to the council were members organized by rank, including sergeant, lieutenant, and major.

New DNGS members held the title of “soldier.”

        Upon gaining membership into the gang, members were given notebooks to study

that included the rules and the history of the Bloods gang and the DNGS set. Gang

members communicated using certain codes and phrases in an effort to ensure that their

communications remained incomprehensible to law enforcement authorities and others.




        2
         We set forth the facts in the light most favorable to the government, the prevailing
party at trial. Evans v. United States, 504 U.S. 255, 257 (1996).
                                             5
Members outwardly reflected their association with the Bloods and DNGS by wearing red

clothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.

       DNGS financed itself through the proceeds of various illegal activities undertaken

by members, including armed robberies, home invasions, and burglaries. Members were

expected to “put in work” to advance their rank in the gang, that is, to commit crimes in

order to show their commitment and loyalty. If a member refused to “put in work,” that

member likely would have been “violated,” or beaten.

       Both while imprisoned and after their release, Stokes, Kweli, and Halisi began

recruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and

Mathis. As the gang’s membership grew, DNGS members “put in work” committing a

series of crimes from late 2013 into early 2014. This spree of illegal activities included a

number of armed robberies of convenience stores, home invasions, burglaries, and other

crimes committed in central Virginia.

       On the night of January 31, 2014, the capital defendants attacked Kevin Quick

(Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as

he was departing his vehicle. The four defendants compelled Quick back into his vehicle

at gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his

account. After learning that Quick was a police officer, and realizing that Quick had

“already seen their face[s],” the capital defendants decided that “it was too late . . . to let

[Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick




                                              6
from the car, and fired a single shot into Quick’s head, killing him and leaving his body

behind. 3

       The next day, the capital defendants met with Halisi and Stokes in Manassas,

Virginia. The defendants rented two hotel rooms to host a “B-House,” or a meeting of

DNGS members.           Throughout that day, the defendants and other DNGS members

discussed potential drug trafficking plans and engaged with other drug dealers in

transactions involving the distribution of quantities of drugs, including crack cocaine.

       The capital defendants left the hotel the next morning and drove in Quick’s vehicle

to Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the

capital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the

vehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle

to a friend’s house where they cleaned the vehicle with bleach.

       Later that day, Mathis and Mersadies committed a robbery. During the robbery,

Mathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge

from the scene of this robbery and matched these items through forensic testing to the

weapon used in Quick’s murder and a previous robbery.

       Mathis and Mersadies quickly left the scene of the robbery in Quick’s vehicle,

which malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby

driveway and doused the vehicle with additional bleach. After receiving a call from

Mersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet



       3
            The record does not show which of the capital defendants fired the fatal shot.
                                                7
Mersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis.

Once Stokes reached the group, Mathis and Shantai told him that Quick’s vehicle needed

to be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”

       Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and

Shantai could “hide out.” 4 As Quick’s disappearance became publicized, Mersadies,

Mathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies

informed Kweli of these discussions through frequent text messages.

       While Kweli was attempting to have Quick’s vehicle destroyed, law enforcement

officers located the abandoned vehicle. Evidence technicians recovered the following

evidence from the vehicle: Kweli’s fingerprint on Quick’s driver’s license, which was

found in Quick’s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and

Mersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of

chewing gum left in the vehicle’s ashtray; and Mathis’ DNA on rubber gloves left in the

vehicle.

       Once news media reported that Quick’s vehicle had been recovered, the defendants

planned their escape to Montana and destroyed other evidence related to their crimes.

Halisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for

DNGS, to “get rid of” Quick’s ATM card. Kweli ordered the other defendants to delete

any incriminating text messages.         Also, Shantai and one other DNGS member

disassembled the gun used to kill Quick and placed the gun components in a pillowcase.


       4
        At this time, the defendants were spread out over various locations in Northern
Virginia.
                                              8
       A day after Quick’s vehicle was recovered, Mathis, Shantai, and Mersadies were

arrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both

his and Casterlow’s phones. Casterlow, who still had possession of the murder weapon

parts, hid those items behind a dumpster at their hotel.

       During this time, Stokes was traveling to Washington, D.C. and Maryland to

purchase narcotics with an associate, Jamar Rice (Rice), who later became a government

witness. After receiving information from an unidentified caller that law enforcement had

raided the hotel 5 to which Stokes was returning after his trip with Rice, Stokes told Rice

that his “homies” had carjacked and killed a police officer, and had left his body in the

woods.

       Stokes returned to Virginia to pick up Halisi, Halisi’s girlfriend, and Casterlow.

Stokes told Casterlow to retrieve the murder weapon components from behind the

dumpster and to drive the group to a nearby interstate highway. As Casterlow drove along

the highway, Stokes threw the murder weapon parts over the wall bordering the road.

Thereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement

officers later recovered the weapon parts with Casterlow’s assistance.

       The defendants were charged in a 36-count indictment with conspiring to participate

in a racketeering enterprise that included the commission of assaults, robberies, burglaries,

kidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury

was sworn during the first trial, the district court was informed that Kweli had removed



       5
           During this raid, law enforcement officers arrested Mathis, Mersadies, and Shantai.
                                               9
from the courtroom a jury list containing identifying information about the jury panel

members and their families. The district court thereafter granted the defendants’ motion

for a mistrial.

       A second trial was held in the Roanoke Division of the Western District of Virginia

following a request by some of the defendants to change venue. The district court also

granted the government’s request to empanel an anonymous jury. At the close of the

second trial, a jury found the defendants guilty on all counts. The district court later

sentenced the capital defendants each to serve a term of life imprisonment. Halisi and

Stokes received sentences of 144 and 160 months’ imprisonment, respectively. Several

other sentences were imposed on the various defendants. This appeal followed.



                                             II.

                                             A.

       The defendants first argue that the district court committed reversible error in

deciding to empanel an anonymous jury. According to the defendants, there was no

evidence supporting the district court’s finding that the defendants had the capacity to harm

or to intimidate the jurors.

       We review a district court’s decision to empanel an anonymous jury for abuse of

discretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case,

a district court may empanel an anonymous jury only after determining “by a

preponderance of the evidence that providing the [juror] list . . . may jeopardize the life or

safety of any person.” Id. at 372 (citing 18 U.S.C. § 3432). We choose to apply this strict

                                             10
standard to both the capital defendants and the non-capital defendants, because the test is

satisfied for both groups.

       A district court must base its decision to empanel an anonymous jury on evidence

in the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an

anonymous jury is appropriate “only in rare circumstances when two conditions are met:

(1) there is strong reason to conclude that the jury needs protection from interference or

harm, or that the integrity of the jury’s function will be compromised absent anonymity;

and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the

accused will be infringed.” Id. at 372 (citations omitted).

       To determine whether there are “strong reason[s]” for empaneling an anonymous

jury, we consider five factors:

       (1) the defendant’s involvement in organized crime, (2) the defendant’s
       participation in a group with the capacity to harm jurors, (3) the defendant’s
       past attempts to interfere with the judicial process, (4) the potential that, if
       convicted, the defendant will suffer a lengthy incarceration and substantial
       monetary penalties, and (5) extensive publicity that could enhance the
       possibility that jurors’ names would become public and expose them to
       intimidation or harassment.

Id. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors

are not exhaustive but are meant to provide guidance in the district court’s fact-specific

inquiry. Id.

       In the present case, during the first trial, the district court raised the question whether

use of an anonymous jury would be appropriate. When the defendants stated their

opposition, the court took no further action. However, as noted above, the court later

received information that Kweli had removed the jury panel list containing the members’

                                               11
personal information and had kept the list overnight in the jail. After the court informed

the jury members that the jury list had been retained by a defendant overnight, some of the

defendants moved for a mistrial, which the court granted.

       In view of these events, the government filed a motion at the beginning of the second

trial requesting an anonymous jury. The district court granted the government’s motion.

       Applying the standards outlined in Dinkins and reviewing the district court’s

reasoning, we conclude for several reasons that the district court did not abuse its discretion

in having the case heard by an anonymous jury. First, the indictment alleged that the

defendants were members of a violent street gang and were involved in a number of violent

criminal offenses, including witness tampering by murder. The record contained sworn

statements by various cooperating witnesses and DNGS members corroborating these

allegations. This evidence strongly suggested that the defendants had associates who were

not incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.

       Second, FBI special agent Scott Cullins expressed to the court concerns about juror

safety given the gang’s “history of not only retribution, but also preventative actions.”

Moreover, Deputy United States Marshal Mark Haley informed the court that at least two

defendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while

awaiting trial. The circumstances leading to the mistrial thus more than justified the court’s

concern for juror safety. And third, if convicted, several of the defendants faced lengthy

incarceration and substantial penalties that may have induced them to intimidate the jury

in an attempt to influence the outcome of the trial. See id. at 1520–21.



                                              12
       We also observe that the district court adopted reasonable safeguards to minimize

the risk that the defendants’ constitutional rights would be infringed by the use of an

anonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with

a neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice

to the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the

court’s decision did not interfere with the defendants’ ability to conduct a thorough voir

dire examination.    Counsel were given full access to all juror information, and the

defendants were permitted to review redacted juror questionnaires. Accordingly, upon our

consideration of all the facts and circumstances before the district court, we hold that the

court’s decision to empanel an anonymous jury was supported by a preponderance of the

evidence and, thus, was not an abuse of discretion.

                                             B.

       Before the jury heard evidence in the case, the court considered pretrial motions

seeking the admission of a number of inculpatory co-conspirator statements. The court

ultimately overruled the defendants’ objections and received the statements into evidence

during the trial. The defendants argue that the district court erred in admitting three of

these statements, because they were not made in furtherance of the charged RICO

conspiracy, and their admission violated the defendants’ rights under the Confrontation

Clause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the

defendants’ arguments.

                                             1.



                                             13
      We review the district court’s decision to admit co-conspirator statements for abuse

of discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce

a co-conspirator’s statements under Federal Rule of Evidence 801(d)(2)(E), the

government was required to show by a preponderance of the evidence that (1) a conspiracy

existed, (2) the conspiracy included both the declarants and the defendants against whom

the statements were offered, and (3) the statements were made during the course of and in

furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).

      The government proffered that it would establish that the statements were made

during and in relation to the broader DNGS racketeering conspiracy, which included

Quick’s murder and the ensuing actions to avoid detection and arrest. 6 Shantai made the

first challenged statement the morning after Quick’s murder, giving Anthony White

(White), another DNGS member, a detailed account of the kidnapping and murder. This

statement included the fact that the capital defendants killed Quick, because “they found

out he was a cop.” Both White and Shantai were members of the conspiracy. Although

White had not participated in Quick’s murder, the statement provided information to White

on the status of the DNGS criminal enterprise, of which he was a member. See United

States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between

co-conspirators to “inform each other as to the progress or status of the conspiracy” are


      6
         We find no merit in the defendants’ argument that Quick’s kidnapping and murder
and the later cover-up of those crimes were not part of the DNGS racketeering conspiracy.
As noted, the government’s proffer alleged that Quick’s murder was one of many
racketeering acts done on behalf of the broader DNGS conspiracy. And our review of the
record evidence, discussed more fully below in Section II.E., leads us to conclude that
Quick’s kidnapping and murder were part of the larger-scale DNGS conspiracy.
                                           14
statements made in furtherance of that conspiracy). Accordingly, Shantai’s statement to

White was admissible as a statement of a co-conspirator made “in furtherance of the

conspiracy.”

       Kweli made the second challenged statement while he and Halisi were arranging for

someone to destroy Quick’s vehicle. Kweli called Shiquan Jackson (Jackson), a DNGS

member, to inform him of the situation. Kweli told Jackson that “[Kweli] just did

something bad,” and that he and the other capital defendants “just peter-rolled [i.e. killed]

a cop” and had to “lay low.” During this conversation, Kweli asked Jackson and Jackson’s

brother, Devante Jackson, also a DNGS member, to contact Halisi, find the vehicle, and

quickly dispose of it. Again, all parties to this statement were members of the conspiracy,

and Kweli’s comments to Jackson were made in furtherance of the conspiracy. Not only

was Kweli providing Jackson information regarding the status of the conspiracy, but he

also sought to “induce a coconspirator’s assistance” to destroy evidence for the purpose of

evading detection and arrest. Id. Thus, because Kweli’s statement to his fellow DNGS

member was intended to “prolong the unlawful activities” of the DNGS enterprise, United

States v. Altomare, 625 F.2d 5, 8 n.9 (4th Cir. 1980), this statement was admissible under

Rule 801(d)(2)(E).

       The third challenged statement involves comments Mathis made to his girlfriend,

Dierra Lloyd (Lloyd), who was not a DNGS member. After Quick’s murder, Mathis

confessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also




                                             15
asked Lloyd if she “knew a place where [he] could get rid of [Quick’s vehicle].” 7 Although

this statement was not made to a member of the DNGS enterprise, we have recognized that

“even casual relationships to the conspiracy” will satisfy the nexus requirement of Rule

801(d)(2)(E). United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (citation omitted).

This statement also was made “in furtherance of the conspiracy” because Mathis sought

Lloyd’s assistance in disposing of Quick’s vehicle. See Mandell, 752 F.3d at 552 (citation

omitted). Therefore, Mathis’ statement likewise was admissible under Rule 801(d)(2)(E).

                                            2.

       We turn to address the defendants’ contention that the admission of the co-

conspirator statements violated their rights under the Confrontation Clause. We review de

novo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).

       The Confrontation Clause protects a defendant’s right to cross-examine a declarant

making a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006).

Although the Supreme Court has not articulated a precise definition of the term

“testimonial,” the Court has provided concrete examples of testimonial evidence. At a

minimum, such evidence includes testimony given at a preliminary hearing, before a grand

jury, and at a formal trial, as well as statements made during a police interrogation. See

Crawford, 541 U.S. at 68. More recently, the Court has explained that a statement is

testimonial in nature if the statement was made or procured with the “primary purpose” of



       7
      It is not clear from the trial record whether Lloyd helped Mathis and the other
members destroy the vehicle following Mathis’ request.

                                            16
creating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173,

2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).

       We conclude that the challenged co-conspirator statements were not testimonial in

nature. The defendants made the challenged statements to co-conspirators and to Lloyd

about criminal activities related to the DNGS criminal enterprise. Moreover, all the

statements were made in furtherance of that criminal conspiracy and were not intended to

be used as a substitute for trial testimony. Accordingly, the admission of the challenged

statements did not violate the defendants’ rights under the Confrontation Clause. 8 See

United States v. Jordan, 509 F.3d 191, 194, 201 (4th Cir. 2007) (holding that statements

made by declarant and alleged co-conspirator to the declarant’s friend describing events

related to the murder of a drug courier were non-testimonial and, thus, did not violate the

Confrontation Clause).

                                            C.

       The defendants next contend that the indictment was defective because it charged

that Quick was prevented from communicating “to a law enforcement officer,” rather than

“to a law enforcement officer . . . of the United States,” as provided in the language of 18

U.S.C. § 1512(a)(1)(C). The district court did not reach the merits of this argument,

determining that the defendants’ motion to dismiss the witness tampering count and related


       8
          Given that admission of the co-conspirator statements did not violate the
Confrontation Clause, we reject the defendants’ additional claim under Bruton v. United
States, 391 U.S. 123 (1968). United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)
(“Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate
Bruton.”).

                                            17
Section 924(c) count was untimely and that they failed to establish “good cause” to excuse

their untimely filing.

       The defendants concede that their motion to dismiss was untimely but argue that

they had good cause for the untimely filing, because some of the defendants’ attorneys

were unaware of the alleged defect in the indictment. The defendants alternatively

maintain that despite their untimely motion, this Court may review the merits of their

argument for plain error, and conclude under that standard that the indictment was

defective. We conclude that the defendants failed to show good cause and that, in any

event, there was no defect in the indictment.

       We review the district court’s finding of lack of good cause for abuse of discretion.

United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814

F.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court’s finding

that defendant did not establish good cause to rebut the presumption of untimeliness under

the Innocence Protection Act). Under Federal Rule of Criminal Procedure 12, a challenge

to a defect in an indictment “must be raised by pretrial motion if the basis for the motion

is then reasonably available and the motion can be determined without a trial on the

merits.” 9 Fed. R. Crim. P. 12(b)(3)(B). If a party fails to meet this deadline, the motion is


       9
         This version of Rule 12 took effect on December 1, 2014, a few weeks after the
indictment was returned by the grand jury. The defendants do not argue that the prior
version of Rule 12 applies. In any event, we determine that the current version of Rule 12
applies, because this case was pending at the time the Rule took effect and the Rule’s
application is “just and practicable.” See S. Ct. Order Amending Fed. R. Crim. P. at ¶ 2
(Apr. 25, 2014) (providing that the new rules “shall govern in all proceedings in criminal
cases thereafter commenced and, insofar as just and practicable, all proceedings then
pending”).
                                             18
untimely. Id. 12(c)(3). A district court “may consider” an untimely motion only if the

moving party “shows good cause” for its delayed action. Id.

       We conclude that the district court did not abuse its discretion in finding that the

motion was untimely, and that the defendants failed to show good cause for their delayed

challenge. Mathis’ counsel informed the court that he had “held onto” the perceived defect

in the indictment “for quite [awhile]” because of his “hope that [he] would get into serious

plea negotiations with the government, and that if [he] did get in serious plea negotiations

with the government, that [he] could get some mileage out of it.” Counsel further admitted

that he “could have filed [the motion to dismiss] right before trial, [he] could have filed it

before the jury was picked, [he] could have filed it any of those times, and [he] didn’t.”

       A party’s affirmative decision to delay filing a motion in an attempt to gain a

strategic advantage at trial does not amount to good cause for purposes of Rule 12. See

United States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir. 2003) (holding that defense tactic

of “sandbagging” is not good cause for failure to file motion to dismiss (citation omitted));

see also United States v. Oldfield, 859 F.2d 392, 397 (6th Cir. 1988) (noting that one

purpose of Rule 12 is to “restrict[] the defense tactic of ‘sandbagging’” (citation omitted)).

Accordingly, we affirm the district court’s denial of the defendants’ untimely motion to

dismiss the witness tampering charge and the related Section 924(c) counts of the

indictment. 10


       10
          We are not persuaded by the defendants’ argument that there was good cause for
the untimely motion because some attorneys for the other defendants were unaware of the
alleged defect. See United States v. Ruhe, 191 F.3d 376, 386–87 (4th Cir. 1999) (holding
(Continued)
                                             19
       More fundamentally, there was no defect, plain or otherwise, in the indictment.

Generally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and

fairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead

double jeopardy in subsequent prosecutions for the same offense.” United States v.

Williams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language

at issue in the indictment did not track the precise language of the statute did not constitute

error under these circumstances. Id. The indictment detailed the factual basis for the

witness tampering charge and cited to the correct statute, fairly apprising the defendants of

the crime charged and its required elements. Id. Therefore, we reject the defendants’ claim

of error.

                                              D.

       The defendants next argue that the district court violated their Fifth Amendment

rights by amending the indictment through the court’s instructions to the jury. According

to the defendants, although the indictment alleged that the Bloods gang was the criminal

enterprise underlying the RICO charge, the court instead instructed the jury that DNGS

was the alleged enterprise.

       We do not address the merits of this argument because the defendants invited the

claimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not

be asked by counsel to take a step in a case and later be convicted of error, because it has

complied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).


that there was no good cause to raise an untimely suppression motion when the defendant
could have with due diligence discovered the information necessary to raise the issue).
                                              20
At the charging conference near the end of the trial, the defendants argued that the jury

should be instructed that the alleged enterprise was only the Bloods, and did not include

DNGS. The government noted that the indictment referred to the Bloods and DNGS

interchangeably and ultimately offered, with the district court’s approval, that the exact

language contained in the indictment be used in the jury instructions. Nonetheless, the

defendants declined this proposed course of action and requested that the instructions

naming only DNGS be used. Thus, even if the court’s instruction was improper, the

defendants could have cured any such error but did not. 11 See United States v. Lespier, 725

F.3d 437, 445–46, 449–51 (4th Cir. 2013) (holding that the invited error doctrine applies

when the defendant opposed provision of a particular instruction and then argued on appeal

that it was error for instruction not to have been given).

                                              E.

       The defendants challenge the sufficiency of the evidence to convict them of the

RICO conspiracy under 18 U.S.C. § 1962(d). 12 The capital defendants also argue that their

federal witness tampering convictions under 18 U.S.C. § 1512(a)(1)(C) are not supported


       11
         The defendants do not argue that an exception to the invited error doctrine is
applicable in this case. See United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013).
       12
          The defendants also challenge the sufficiency of the evidence underlying their
numerous VICAR convictions under 18 U.S.C. § 1959(a)(3), and violations of 18 U.S.C.
§ 924(c), based on the underlying VICAR offenses. VICAR imposes criminal liability on
an individual who commits a crime of violence “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in racketeering activity.” 18
U.S.C. § 1959(a). As Section 1959(a) incorporates the same definition of “enterprise” as
RICO, 18 U.S.C. § 1959(b), our analysis of the defendants’ challenge to the RICO
conspiracy convictions applies equally to the VICAR and related Section 924(c)
convictions.
                                             21
by the evidence. Additionally, Halisi and Stokes challenge the sufficiency of the evidence

to support their convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1).

       We will sustain a jury’s verdict when there is substantial evidence, construed in the

light most favorable to the government, supporting the verdict. United States v. Hackley,

662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting

forth additional facts as necessary to decide each argument.

                                              1.

       The defendants each were convicted of conspiracy to participate in a racketeering

enterprise in violation of 18 U.S.C. § 1962(d). To obtain a conviction under this statute,

the government was required to prove “that an enterprise affecting interstate commerce

existed; that each defendant knowingly and intentionally agreed with another person to

conduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly

and willfully agreed that he or some other member of the conspiracy would commit at least

two racketeering acts.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)

(citations and internal quotation marks omitted).

                                               a.

       The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in

the RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous”

and, thus, did not constitute a pattern of racketeering activity. We find no merit in either

argument.

       The RICO statute defines the term “enterprise” as “any . . . group of individuals

associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise

                                              22
“is proved by evidence of an ongoing organization, formal or informal, and by evidence

that the various associates function[ed] as a continuing unit.” United States v. Turkette,

452 U.S. 576, 583 (1981). The Supreme Court has explained that an “association-in-fact

enterprise” must have “at least three structural features: a purpose, relationships among

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

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

       Here, the government presented sufficient evidence from which a reasonable jury

could conclude that DNGS was an “enterprise,” within the meaning of the RICO statute.

DNGS members received tattoos and wore red clothing signifying their membership in the

gang, congregated regularly at membership meetings, and had a set of governing rules that

members were expected to follow. Members shared a common function and purpose,

namely, to enrich members of the gang by “putting in work” through the commission of

violent crimes and selling drugs. DNGS members also agreed to provide, and did provide,

protection for one another. Although an “enterprise” “need not have a hierarchical

structure or chain of command,” id. at 948, the presence of such organizational features

provides additional evidence of a functioning “enterprise.” And here, the government’s

evidence established that DNGS had a clearly delineated leadership structure.

       Although the RICO statute does not define the phrase “pattern of racketeering

activity,” see 18 U.S.C. § 1962, the statute specifies that proof of a “pattern of racketeering

activity” requires evidence of “at least two acts of racketeering activity” committed within

a ten-year period, 18 U.S.C. § 1961(5). The Supreme Court further has explained that to

establish a pattern of racketeering activity, the racketeering predicate acts must be related

                                              23
to each other (the “relatedness prong”), and must amount to, or pose a threat of, continued

criminal activity (the “continuity prong”). H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229,

239 (1989) (“It is this factor of continuity plus relationship which combines to produce a

pattern.” (citation omitted)).

       At issue here is the relatedness prong of the pattern analysis. 13 Racketeering acts

are related if they “have the same or similar purposes, results, participants, victims, or

methods of commission, or otherwise are interrelated by distinguishing characteristics and

are not isolated events.” Id. at 240 (citation omitted). In making this determination, we

employ the “commonsense, everyday understanding” of the statutory language. Id. at 241.

       We conclude that the government sufficiently established a “pattern of racketeering

activity.” The government introduced evidence of twelve racketeering acts leading up to

Quick’s kidnapping and murder. Various combinations of DNGS members committed

these crimes together. Those crimes shared the common purpose of enriching DNGS



       13
          While the defendants have not, apart from a single conclusory statement, raised a
continuity argument, we determine that the continuity prong is satisfied here. H.J. Inc.,
492 U.S. at 241–42 (holding that the continuity prong can be met by showing that related
predicate offenses continued over a substantial period of time or posed a threat of
continuing activity). Although the predicate acts established at trial were committed over
the span of five months, the racketeering offenses were part of an ongoing criminal
enterprise and were committed to enrich DNGS members and to facilitate future criminal
acts. See id. at 242–43 (noting that “the threat of continuity is sufficiently established
where the predicates can be attributed to a defendant operating as part of a long-term
association that exists for criminal purposes”). DNGS also worked to protect its members
from apprehension by law enforcement authorities. See United States v. Aulicino, 44 F.3d
1102, 1111 (2d Cir. 1995) (holding that “in cases where the acts of the defendant or the
enterprise were inherently unlawful, such as murder or obstruction of justice, and were in
pursuit of inherently unlawful goals . . . courts generally have concluded that the requisite
threat of continuity was adequately established”).
                                             24
members, bolstering the gang’s reputation for violence, or evading law enforcement
authorities. In committing these crimes, the defendants employed firearms, threats of
physical force, and actual physical force. The jury could conclude, based on this
evidence, that the defendants had engaged in a “pattern of racketeering activity.”
                                            b.

       Halisi and Stokes separately argue that the government failed to prove that either of

them agreed to the commission of at least two of the charged racketeering acts. The

government offered evidence of three categories of racketeering acts: drug trafficking,

obstruction of justice, and robbery, in violation of state and federal law. 14 Although Halisi

and Stokes do not dispute that they conspired to distribute narcotics, they argue that these

activities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi

and Stokes also claim that their acts of obstruction did not constitute racketeering acts,

because those acts occurred after the completion of the RICO conspiracy. We disagree

with these arguments.

       “[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without

himself committing or agreeing to commit the two or more acts of racketeering activity.”

Mouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas

v. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal

objective” as that of the enterprise. Salinas, 522 U.S. at 63–64. This agreement is apparent

from Halisi and Stokes’ role within DNGS. Both men were the enterprise’s founders and

leaders. Both defendants had a central role in directing the enterprise, which required its


       14
           Because we conclude that Halisi and Stokes participated in the racketeering acts
of drug trafficking and obstruction of justice, we need not decide whether there was
sufficient evidence to prove that they also participated in the other racketeering activities
alleged in the indictment, including robbery.
                                             25
members to commit crimes for the gang’s welfare and support. These facts strongly

support the jury’s conclusion that Halisi and Stokes were actively involved in the RICO

conspiracy conducted by DNGS, including the robberies committed by the capital

defendants and others.

       Abundant evidence showed that DNGS members distributed controlled substances

and discussed arrangements for expanding their drug distribution networks at DNGS

meetings. Other evidence showed that drug trafficking was done for the benefit of DNGS,

and copies of DNGS-related documents introduced at trial reflected a detailed code used

by DNGS members to disguise their intended language when discussing narcotics. DNGS

members also sought to invest money obtained from robberies and theft into the gang’s

drug distribution network. Thus, the jury could conclude from the evidence that the

distribution of controlled substances was a centerpiece of the DNGS criminal enterprise.

       The government also produced substantial evidence that the acts of obstruction

committed by Halisi and Stokes were done during and in furtherance of the conspiracy.

Halisi and Stokes ordered the destruction of, or directly destroyed, evidence related to

Quick’s murder, including Quick’s ATM card, the murder weapon, and the phones

belonging to DNGS members. Halisi and Stokes took these actions not only to “cover up”

the crimes that had been committed, but also to prolong the unlawful activities of the DNGS

enterprise and to protect the DNGS members from being arrested. Accordingly, the jury

could conclude from this evidence that the obstructive acts committed by Halisi and Stokes

constituted acts of racketeering. Altomare, 625 F.2d at 8 n.9 (explaining that defendant’s

attempt to obstruct was “not merely an attempt to cover up a previously completed crime,

                                            26
but was an effort to prolong the unlawful activities of the enterprise in which he and his

co-conspirators were engaged”).

                                            2.

      The capital defendants argue that the evidence was insufficient to prove that they

engaged in witness tampering by murder to prevent Quick from reporting a carjacking

offense. In particular, they assert that their witness tampering convictions cannot stand,

because the government failed to prove the underlying crime of carjacking. We find no

merit in this argument.

      The federal witness tampering statute prohibits “kill[ing] another person, with intent

to . . . prevent the communication by any person to a law enforcement officer . . . of the

United States” of “information relating to the . . . possible commission of a Federal

offense.” 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Section 1512 does not require that

the government prove the completion of an underlying federal offense to establish witness

tampering. 15 Instead, inclusion of the word “possible” in the statutory language reflects

that a conviction under Section 1512 requires only that a witness was prevented from

communicating to the authorities information about a possible or actual federal offense.

                                            3.



      15
         For the same reason, we reject the capital defendants’ more specific argument that
the government failed to adduce evidence establishing the federal nexus required by the
carjacking statute. See 18 U.S.C. § 2119 (prohibiting the taking of “a motor vehicle that
has been transported, shipped, or received in interstate or foreign commerce” (emphasis
added)). For the purposes of the witness tampering conviction, the government was not
required to proffer evidence proving the elements of the underlying crime of carjacking,
including the federal nexus requirement.
                                            27
       Halisi and Stokes contend that the evidence was insufficient to support their

convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1), which, in relevant part,

prohibits a person from “corruptly . . . alter[ing], destroy[ing], mutilat[ing], or conceal[ing]

a record, document, or other object, or attempt[ing] to do so, with the intent to impair the

object’s integrity or availability for use in an official proceeding.” We consider their

separate arguments in turn.

       Halisi argues that, because he only instructed other individuals to destroy evidence

and did not directly destroy any evidence himself, he did not commit the crime of

obstruction of justice. 16 We disagree.

       Under the doctrines of vicarious liability and co-conspirator liability, a defendant is

liable for the substantive offenses committed by a co-conspirator when the commission of

the acts is reasonably foreseeable and is done in furtherance of the conspiracy. United

States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). The jury properly was instructed on

both these theories of liability. 17 The evidence at trial established that Halisi ordered

Casterlow to destroy Quick’s ATM card, instructed his girlfriend to destroy his and

Casterlow’s phones, and gave Stokes the disassembled murder weapon in order for Stokes

to discard the component parts. Thus, the jury reasonably could determine under a theory

of either vicarious or co-conspirator liability that Halisi was responsible for destroying



       16
          The indictment alleged that Halisi was involved “in directing the efforts of the
enterprise in the destruction of documents and evidence associated with” Quick’s murder.
       17
         These theories of liability need not be charged in the indictment. See Ashley, 606
F.3d at 143.
                                              28
evidence by commanding others to do so on his behalf. Accordingly, we affirm his

conviction for obstruction of justice.

       Stokes advances a separate challenge to his conviction for obstruction of justice. He

argues that: (1) his conviction is invalid because a federal grand jury had not been convened

to consider the crimes charged at the time that he purportedly obstructed justice; and (2)

the government failed to prove that, at the time of his actions, he contemplated an official

proceeding that was federal in nature.       We reject both these arguments, which are

foreclosed by the plain language of Section 1512.

       Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section

. . . an official proceeding need not be pending or about to be instituted at the time of the

offense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under

this section, no state of mind need be proved with respect to the circumstance . . . that the

official proceeding . . . is before a judge or court of the United States, a United States

magistrate judge, . . . a Federal grand jury, or a Federal Government agency.”

       Despite this plain language, however, Stokes maintains that the Supreme Court’s

decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the

government was required to prove that Stokes contemplated a particular and foreseeable

federal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen

that certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and

(B), require that the government prove a “nexus” between the defendant’s conduct and a

foreseeable official proceeding. 544 U.S. at 698, 707–08. We will assume, without

deciding, that Section 1512(c)(1) imposed the same burden on the government in the

                                             29
present case, requiring the government to establish a “nexus” between Stokes’ obstructive

action and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368,

386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)).

The evidence before us easily satisfied such a requirement.

          Rice, who was with Stokes days after Quick’s murder, testified that Stokes received

a call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].”

Stokes responded to Rice that the murder weapon was still in Casterlow’s possession, and

that Stokes was “concerned” the gun could be traced “back to the murder” and link him to

the crime. The evidence further established that Stokes later took action to dispose of the

murder weapon. The jury could conclude from this evidence that Stokes thought that his

acts likely would affect a foreseeable official proceeding. See Arthur Anderson, 544 U.S.

at 707.

          Nor was the government required to establish that Stokes contemplated an official

proceeding that was federal in nature in order to secure a conviction under Section 1512(c).

As quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See

United States v. Phillips, 583 F.3d 1261, 1264–65 (10th Cir. 2009) (holding that in a

prosecution under Section 1512(c), “the government need not prove [that] the defendant

knew that the official proceeding at issue was a federal proceeding such as a grand jury

investigation”). Accordingly, we conclude that the evidence was sufficient to support

Stokes’ conviction for obstruction of justice under Section 1512(c)(1).

                                               F.



                                              30
       The defendants next challenge a number of their convictions under 18 U.S.C. §

924(c) for use of a firearm during a crime of violence. They argue that the predicate

offenses underlying their Section 924(c) convictions do not qualify as crimes of violence

under the statute’s “force clause,” 18 U.S.C. § 924(c)(3)(A). With respect to the statute’s

“residual clause,” id. § 924(c)(3)(B), the defendants argue that the clause is

unconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United

States, 135 S. Ct. 2551 (2015) (Johnson II).

       We review de novo the question whether an offense qualifies as a crime of violence.

See United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section

924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of

violence.” 18 U.S.C. § 924(c)(1)(A). Subsection (c)(3) defines the term “crime of

violence” as a felony offense that:

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

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

18 U.S.C. § 924(c)(3). We refer to Section 924(c)(3)(A) as the “force clause,” and to Section

924(c)(3)(B) as the “residual clause” or the “924(c) residual clause.” United States v. Fuertes,

805 F.3d 485, 498 (4th Cir. 2015).

       The Supreme Court recently agreed with the defendants’ argument that the 924(c)

residual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336

(2019). The Court held that like similarly worded residual clauses struck down in Johnson


                                               31
II, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c)

residual clause improperly required the sentencing judge’s “estimation of the degree of risk

posed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2325-26, 2336. 18 Our

analysis therefore is limited to considering whether the defendants’ prior convictions qualify

as crimes of violence under the force clause.

       To determine whether an offense qualifies as a crime of violence under Section

924(c)(3)(A), we apply the categorical approach or the modified categorical approach,

depending on the nature of the offense. Id. The categorical approach focuses “on the

elements of the prior offense rather than the conduct underlying the conviction.” United

States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus,

we do not inquire “whether the defendant’s conduct could support a conviction for a crime

of violence” but instead inquire “whether the defendant was in fact convicted of a crime

that qualifies as a crime of violence.” Id.

       In a “narrow range of cases,” involving statutes that are comprised of “multiple,

alternative versions of the crime,” we apply the modified categorical approach. Descamps

v. United States, 570 U.S. 254, 261–62 (2013) (citing Taylor v. United States, 495 U.S.

575, 602 (1990)). When confronted with such a “divisible” statute, we review certain

underlying documents, including the indictment, “to determine what crime, with what


       18
           The Supreme Court rejected the government’s argument that unlike the residual
clauses at issue in Johnson II and Dimaya, the 924(c) residual clause permits a case-specific
approach allowing consideration of the defendant’s actual conduct in the predicate crime,
rather than the crime in the “ordinary” sense. Davis, 139 S. Ct. at 2327−33. The Court
reasoned that the statutory language and historical context of the 924(c) residual clause did
not permit a “case-specific reading.” Id.
                                              32
elements,” formed the basis of a defendant’s conviction. Mathis v. United States, 136 S.

Ct. 2243, 2249 (2016) (citations omitted).

       With this framework in mind, we turn to consider each predicate offense underlying

the defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in

violation of 18 U.S.C. § 1959 by committing murder in violation of Virginia law, Virginia

Code § 18.2-32; (2) witness tampering by means of murder in violation of 18 U.S.C. §

1512(a); (3) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); and (4) VICAR by

committing kidnapping in violation of Virginia law, Virginia Code § 18.2-47.

                                             1.

       We begin by addressing whether the capital defendants’ Section 924(c) convictions,

which involve (1) commission of VICAR by committing first-degree murder under

Virginia law 19 and (2) federal witness tampering by means of murder under federal law,

qualify as crimes of violence under the force clause. The capital defendants contend that

Virginia’s definition of first-degree murder, 20 prohibited under Virginia Code § 18.2-32,

does not require the use or threatened use of force against another, because a defendant can

violate the statute by using non-violent, indirect means, such as “poison[ing]” a victim.



       19
         Neither party contests the applicability of the categorical approach to the VICAR-
murder, agreeing that Virginia’s murder statute is indivisible.
       20
          Virginia Code § 18.2-32 specifies “[a]ll murder other than capital murder and
murder in the first degree is murder of the second degree.” Although the indictment did
not specify whether the VICAR conviction was predicated on a first-degree or second-
degree murder, the district court instructed the jury on first-degree murder. The parties do
not dispute that the capital defendants’ VICAR convictions stem from commission of first-
degree murder under Virginia law.
                                             33
Advancing the same rationale, the capital defendants also assert that federal witness

tampering by murder, under 18 U.S.C. § 1512(a)(1)(C), is not categorically a crime of

violence.

       This line of reasoning, however, is foreclosed by the Supreme Court’s decision in

United States v. Castleman, in which the Court held that “physical force is simply force

exerted by and through” human action and that, therefore, a person need not “directly”

touch his victim to exert “physical force.” 572 U.S. 157, 170−71 (2014) (citations and

internal quotation marks omitted). Accordingly, so long as an offender’s use of physical

force, whether direct or indirect, could cause a violent result, the force used categorically

is violent. See id. at 1415; see also In re Irby, 858 F.3d 231, 236, 238 (4th Cir. 2017)

(holding that second-degree retaliatory murder is a crime of violence under Section

924(c)’s force clause and noting that the “distinction . . . between indirect and direct

applications of force . . . no longer remains valid in light of Castleman’s explicit rejection

of such a distinction”) (citations and internal quotation marks omitted).

       A conviction for first-degree murder under Virginia law requires the “willful,

deliberate, and premeditated” killing of another. Va. Code § 18.2-32. Murder “requires

the use of force capable of causing physical pain or injury to another person” irrespective

whether that force is exerted directly or indirectly by a defendant. See In re Irby, 858 F.3d

at 236, 238. Therefore, we conclude that the crime of first-degree murder under Virginia

law qualifies categorically as a crime of violence under the force clause, and we affirm the

capital defendants’ Section 924(c) convictions that are based on the commission of this

Virginia offense.

                                             34
       Likewise, because federal witness tampering by murder also requires the unlawful

killing of another, which may be accomplished by force exerted either directly or indirectly,

we find no merit in the capital defendants’ challenge to their federal witness tampering

convictions under 18 U.S.C. § 1512(a)(1)(C). 21        See In re Irby, 858 F.3d at 236.

Accordingly, we affirm the Section 924(c) convictions predicated on the capital

defendants’ convictions for federal witness tampering by murder, in violation of Section

1512(a)(1)(C).

                                             2.

       We next consider the defendants’ argument that their Section 924(c) convictions

based on Hobbs Act robbery do not qualify as crimes of violence. 22 The defendants argue

that because Hobbs Act robbery can be committed by placing a victim in fear of injury, the

offense does not necessarily include as an element the “use, attempted use, or threatened




       21
         Because this offense can be committed in various ways, the statute is divisible.
See Descamps, 570 U.S. at 262. However, we need not apply the modified categorical
approach here, because the parties agree and the record establishes that the capital
defendants were convicted of witness tampering by means of murder under Section
1512(a)(1)(C). See United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013).
       22
         The defendants convicted of Hobbs Act robbery and the related Section 924(c)
charge are Shantai, Mersadies, and Mathis.
                                             35
use of force,” as required by the force clause. The defendants also contend that because

Hobbs Act robbery may be accomplished by threatening another with injury to intangible

property, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a

crime of violence under the force clause. We disagree with both arguments. 23

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

affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits

or threatens physical violence to any person or property in furtherance of a plan or purpose

to do anything in violation of this section.” 18 U.S.C. § 1951. “Robbery” is defined, in

relevant part, as the taking of personal property from another “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) (emphasis added).

       The question whether Hobbs Act robbery, when committed by means of causing

fear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818

F.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be

committed by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis

added), qualifies as a crime of violence under the force clause. 818 F.3d at 152–53. We

explained that the use of intimidation, as proscribed by the bank robbery statute, necessarily

“involves the threat to use [physical] force.” Id. at 153. Although the bank robbery statute,



       23
          The Hobbs Act is a divisible statute that prescribes two alternative methods of
violating the Hobbs Act, namely, robbery and extortion. 18 U.S.C. § 1952(b)(1), (2). As
before, however, we need not apply the modified categorical approach here, because the
parties do not dispute and the record supports that the defendants were charged with and
convicted of Hobbs Act robbery. See Carthorne, 726 F.3d at 512.
                                             36
Section 2113, refers to use of “intimidation,” rather than “fear of injury,” we see no material

difference between the two terms for purposes of determining whether a particular type of

robbery qualifies as a crime of violence. Nor are we aware of any case in which a court

has interpreted the phrase “fear of injury” as meaning anything other than intimidation.

       We also observe that both Section 924(c) and Hobbs Act robbery reference the use

of force or threatened use of force against “property” generally, without further defining

the term “property.” Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”

as having “as an element the use, attempted use, or threatened use of physical force against

. . . property of another”), with 18 U.S.C. § 1951 (defining “robbery” as a taking “by means

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

property”). And neither provision draws any distinction between tangible and intangible

property. Thus, we do not discern any basis in the text of either statutory provision for

creating a distinction between threats of injury to tangible and intangible property for

purposes of defining a crime of violence. Accordingly, we conclude that Hobbs Act

robbery constitutes a crime of violence under the force clause of Section 924(c). 24 See

United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Hill, 890




       24
         The defendants offer two additional arguments in support of their contention that
Hobbs Act robbery is not a crime of violence. The defendants first assert that a threat of
injury does not require the threat of violent force, such as when a perpetrator threatens
another’s property by throwing paint on someone’s house. The defendants also assert that
because Hobbs Act robbery is akin to common law robbery, Hobbs Act robbery does not
contain the required force element. After reviewing these arguments, we conclude that
neither has merit.

                                              37
F.3d 51, 60 (2d Cir. 2018); United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In

re Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).

                                               3.

         Finally, the capital defendants challenge their Section 924(c) convictions predicated

on their VICAR convictions for kidnapping under Virginia law. They argue that because

kidnapping under Virginia law can be committed by deception, the offense is not

categorically a crime of violence under the force clause. See Va. Code § 18.2-47(A). 25 We

agree.

         Virginia’s kidnapping statute generally prohibits an individual from seizing or

taking another person “by force, intimidation, or deception” with the intent to deprive that

person of his or her liberty. Va. Code § 18.2-47(A). Although the statute describes various

ways that an individual may commit the act of kidnapping, namely, by force, intimidation,

or deception, these alternatives represent various means of committing the crime, not

alternative elements of the crime. See Fuertes, 805 F.3d at 498 (“[A]lthough § 1591(a)

refers to alternative means of commission, it contains a single, indivisible set of elements,

and the categorical approach applies.”). Accordingly, we conclude that Virginia Code §

18.2-47(A) is indivisible, requiring application of the categorical approach. See id.



         25
         The capital defendants also assert that kidnapping under Virginia law does not
qualify as a crime of violence under the 924(c) residual clause, because that clause is
unconstitutional in light of the Supreme Court’s holding in Johnson II, 135 S. Ct. 2551.
As we explained above, the Supreme Court recently has concluded that the 924(c) residual
clause is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, our
determination explained below, that kidnapping under Virginia law does not qualify as a
crime of violence offense under the force clause, is dispositive.
                                              38
       A review of the statute’s language and the decisions by Virginia’s appellate courts

interpreting that language indicates that the offense may be committed in a non-violent

manner through deceptive means. 26 Va. Code § 18.2-47; Jerman v. Dir. of the Dep’t of

Corrs., 593 S.E.2d 255, 259 (Va. 2004) (affirming a kidnapping conviction when the

evidence proved that one of the defendant’s confederates convinced the victim to come

with her under the ruse of selling illegal narcotics when the defendant’s true intent was to

harm the victim); Kent v. Commonwealth, 183 S.E. 177, 177–78 (Va. 1936) (affirming a

conviction for kidnapping committed by fraud and coercion and without the use of force

or restraint). Because Virginia defines kidnapping in a manner that allows for both violent

and nonviolent means of committing the offense, the statute “sweep[s] more broadly” than

the force clause’s requirement that the offense be committed with the use, or attempted or

threatened use, of physical force.      See Descamps, 570 U.S. at 261; 18 U.S.C. §

924(c)(3)(A). Thus, we conclude that kidnapping under Virginia law does not qualify

categorically as a crime of violence under the force clause. We therefore vacate the capital

defendants’ Section 924(c) convictions stemming from the commission of VICAR based

on kidnapping under Virginia law.

                                            G.




       26
         To determine if a state conviction qualifies as a crime of violence, we look to the
language of the statute as well as decisions by the state’s courts. See United States v.
Doctor, 842 F.3d 306, 312 (4th Cir. 2016).
                                            39
       Finally, the capital defendants argue that the fines imposed on each of them should

be vacated as substantively unreasonable. 27 We disagree.

       We review the substantive reasonableness of any part of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors

outlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was

warranted, the district court imposed on each defendant a $5,000 fine, a sum well below

the advisory guidelines range. 28 See U.S.S.G. § 5E1.2. The defendants have not offered

any evidence rebutting the presumption of reasonableness that we apply to the district

court’s below-Guidelines imposition of fines. United States v. Perez-Jiminez, 654 F.3d

1136, 1146–47 (10th Cir. 2011). Therefore, we hold that the court did not abuse its

discretion in imposing those fines in this case.



                                             III.

       For these reasons, we affirm in part the district court’s judgment, vacate the capital

defendants’ Section 924(c) convictions predicated on their VICAR convictions for

kidnapping under Virginia law, and remand for resentencing of those capital defendants,

namely, Mathis, Shantai, Mersadies, and Kweli.


       27
        The defendants do not challenge the assessment of their fines as procedurally
unreasonable.
       28
         Kweli is the only capital defendant whose sentencing transcript was included in
the record before this Court. Because the defendants have not raised an objection to the
completeness of the record, our analysis of the substantive reasonableness of the fines
assessed against each defendant stems from our review of Kweli’s sentencing transcript
only.
                                             40
     AFFIRMED IN PART,
     VACATED IN PART,
       AND REMANDED




41
