           IN THE SUPREME COURT OF THE STATE OF DELAWARE


ANDREW LLOYD,                          §
                                       §     No. 680, 2015
      Defendant Below,                 §
      Appellant,                       §     Court Below—Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID No. 1410016737
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted:   October 25, 2016
                          Decided:     December 20, 2016

Before HOLLAND, VAUGHN, and SEITZ, Justices.

Upon Appeal from the Superior Court of the State of Delaware: AFFIRMED.

Peter W. Veith, Esquire (Argued), Wilmington, Delaware, for Defendant-Below,
Appellant, Andrew Lloyd.

Elizabeth R. McFarlan, Esquire (Argued), Department of Justice, Wilmington, Delaware,
for Plaintiff-Below, Appellee, State of Delaware.




SEITZ, Justice:
                                 I.     Introduction

      Andrew Lloyd appeals his convictions for racketeering and other offenses

related to his role in a Delaware heroin trafficking ring. He raises four issues on

appeal. First, Lloyd argues that the Superior Court abused its discretion by giving

a jury instruction that did not adequately define “enterprise” according to the

Delaware RICO statute. Second, he argues that the State presented insufficient

evidence to prove that Lloyd was engaged in an “association-in-fact” enterprise

under the RICO statute. Third, he argues that the State improperly vouched for

and bolstered certain witnesses’ testimony by asking several of the witnesses about

the contents of their plea agreements. Finally, Lloyd argues that the cumulative

effect of the errors violated his due process rights.

      After a careful review of the record on appeal, we find Lloyd’s claims to be

without merit.     Read as a whole, the racketeering jury instruction adequately

informed the jury of the essential elements of a RICO violation under Delaware

law. The State also presented substantial evidence of Lloyd’s participation in a

racketeering enterprise. Further, the trial judge did not plainly err by permitting

the State to question witnesses on direct examination about their plea agreements

after defense counsel did not object to their admission into evidence. Finally,

because we do not find cumulative errors, Lloyd’s due process claim is without

merit. Accordingly, we affirm the judgment of the Superior Court.



                                           2
                     II.    Facts And Procedural Background

      In January 2014, after a string of shootings in the region, the Wilmington

Police Department and the FBI began investigating a heroin dealing ring in

Wilmington, Delaware.        Andrew Lloyd was one of the main subjects of the

investigation. The Wilmington Police and the FBI also collaborated with the

Delaware State Police and the U.S. Drug Enforcement Administration who were

conducting a parallel investigation of Lloyd and one of his co-defendants, Jarrell

Brown (“Jarrell”).

      During the course of the investigation, Lloyd took part in many large-scale

drug transactions, moving an average of 1,000-1,600 bundles1 of heroin per week.

He operated primarily through his associates, having them package, pick up, and

deliver the drugs. Lloyd used the homes of Lakenya Howard, Wanda Lloyd

(“Wanda”), Jarrell, and others to store, package, and prepare heroin for

distribution. Lloyd also used places and names associated with national political

figures to identify the homes and his associates.

      On October 30, 2014, after months of surveillance and investigation, police

obtained a search warrant and searched Lloyd’s home and the homes of his many

associates. They seized $12,932 and a car from Lloyd’s home in Newark. They


1
 E.g., App. to Opening Br. at 298; Hunter v. State, 945 A.2d 594, 2008 WL 625566, at *1 n.1
(Del. 2008) (Table) (“A bundle of heroin is 13 individual bags wrapped together.”).



                                            3
did not find drugs in Lloyd’s home, but found them in his associates’ homes.

Police then arrested Lloyd and forty other individuals.

      After earlier indictments, in late 2014, a New Castle County grand jury

handed down a final 163-count, multiple-defendant indictment. The grand jury

indicted Lloyd for a litany of offenses including criminal racketeering, conspiracy

to commit criminal racketeering, multiple counts of aggravated possession of

heroin, drug dealing heroin, second degree conspiracy, and possession of drug

paraphernalia.

      In October 2015, the Superior Court conducted an eight-day joint trial for

co-defendants Lloyd and Antoine Miller. At the trial, over fifty witnesses testified

for the State, including seventeen of Lloyd’s co-defendants, twenty-seven law

enforcement officers, several expert witnesses, a civilian, and Lloyd’s former

cellmate. Jarrell, Howard, Steven Roscoe, and Yasmeena Brown (“Yasmeena”)

were four of the co-defendant witnesses. Jarrell, Howard, and Roscoe testified

about their relationship with Lloyd and the various drug deals they had done

together. At the end of their testimony, the State asked each of them if their plea

agreements required them to testify truthfully. The State also asked Roscoe if he

was in fact testifying truthfully.

      Yasmeena also testified as a witness for the State. She was uncooperative

and repeatedly said she “did not remember” when the prosecutor asked her



                                         4
questions, even after the prosecutor attempted to refresh her memory with the

transcript of her police interview. To prompt Yasmeena to answer the questions,

the prosecutor asked:

       State:         And you agreed as part of your plea down in the
                      condition section to testify truthfully here today?

       Yasmeena: Um-hmm.

       State:         Ms. Brown, did you testify truthfully here today?

       Yasmeena: Yes.2

       Lloyd did not object to the admission into evidence of the plea agreements

by the State in its direct examination of witnesses, or the prosecutor’s questioning

of these witnesses on the contents of their plea agreements.3

       On October 19, 2015, the State submitted to the court a proposed jury

instruction on the charge of racketeering. Lloyd agreed with the instruction. The

instruction included a specific definition of enterprise:

       In order to convict the defendant of Criminal Racketeering, you must
       find that the State has established all of the following elements and
       sub-elements beyond a reasonable doubt:



2
 App. to Opening Br. at 608.
3
 It appears that the State admitted into evidence on direct examination without objection sixteen
of Lloyd’s co-defendants’ plea agreements. Id. at 87-88 (Davonte Lewis), 165 (Zechariah
Palmer), 168 (Wanda), 174 (Blayton Palmer), 176-81 (Kimwanya Allen), 186-87 (Galen
Collins), 194 (Demetrius Brown), 255 (Brian Miller), 368 (Jarrell), 411 (Janelle Lloyd), 442-43
(Roscoe), 474 (Howard), 497 (Kareem Keyes), 503-04 (Brian Palmer), 505 (Felicia Pagan), 607-
08 (Yasmeena Brown).



                                               5
          (1)        The defendant was associated with an enterprise. The term
                     “enterprise” includes any group of persons associated in fact,
                     although not a legal entity. In order for you to conclude that the
                     State has established beyond a reasonable doubt the existence
                     of an enterprise consisting of a group of persons associated in
                     fact, although not a legal entity, you must be satisfied that each
                     of the following three sub-elements has been established
                     beyond a reasonable doubt:

          (a)        First, there must be an “on-going organization formal or
                     informal.” To prove the existence of an ongoing organization,
                     the State is require to present evidence that some type of
                     structure exists within the group for making decisions and that
                     there is a mechanism for controlling the affairs of the group on
                     an on-going, rather than ad hoc, basis; and

          (b)        Second, the enterprise may consist of various units but those
                     units must function as a continuing unit. To show a continuing
                     unit, the State must show that each person within the enterprise
                     has a role consistent with the decision-making structure; and

          (c)        Third, the enterprise existed separate and apart from the
                     “pattern of racketeering,” a term which I shall shortly define for
                     you. While the evidence used to prove the existence of an
                     enterprise and a pattern of racketeering may coalesce, and while
                     it is not necessary to show that the enterprise has some function
                     wholly unrelated to racketeering activity, the State must show
                     that the enterprise had an existence beyond that which is
                     necessary to commit each of the acts charge. However, an
                     enterprise can be inferred from proof of a pattern of
                     racketeering. This third sub-element eliminates the possibility
                     that minimal associations of people jointly committing crimes
                     can be designated as racketeering enterprises by association-in-
                     fact[.]4




4
    Id. at 794-95.



                                                  6
           On October 28, the State withdrew the original instruction and submitted an

alternative jury instruction. This instruction, which had been in the court’s draft

instructions, included a more succinct definition of an “enterprise”:

                In Delaware[,] it is unlawful for a person associated with an
          enterprise to conduct the enterprise’s affairs [through] a pattern of
          racketeering activity[,] or to participate in the enterprise’s affairs
          through a pattern of racketeering activity. To find the defendant
          guilty of criminal racketeering, you must find that each of the
          following elements has been proved beyond a reasonable doubt:

                 One, defendant was associated with an enterprise; and two,
          defendant conducted the enterprise through a pattern of racketeering
          activity or defendant participated in the enterprise’s affairs through a
          pattern of racketeering; and, three, defendant’s conduct or
          participation in the pattern [of] racketeering was intentional.

                Under the law, an enterprise includes a group of people
          associated in fact for a common purpose. Pattern racketeering activity
          shall mean two or more felonies including, but not limited to, felony
          aggravated possession or drug dealing which are related to the
          enterprise’s affairs but are not so closely related to each other as
          connected in time and place to constitute a single act, yet the felonies
          were not more than ten years apart. The underlying felonies are
          sometimes referred to, as I said, as predicate offenses.

                 Conduct or participate in an enterprise’s affairs means acting in
          a way that is necessary or helpful in carrying out the enterprise’s
          business or operations, including the predicate offenses. Intentionally
          as used in the criminal racketeering law means it was defendant’s
          conscious object and purpose to do the acts that constitute the alleged
          pattern of racketeering activity.5




5
    Id. at 769.



                                             7
       Over defense objection, the Superior Court gave the jury the alternative

instruction.

       On October 30, 2015, the jury found Lloyd guilty of all charges. The

Superior Court sentenced Lloyd to a total of sixty-four years at Level V

incarceration followed by probation. The Superior Court later modified Lloyd’s

sentence to run all Level V time concurrently, reducing Lloyd’s sentence to

twenty-five years at Level V incarceration, followed by two years of decreasing

levels of supervision. This appeal followed.

                                      III.    Analysis

       A. The Racketeering Jury Instruction

       Lloyd first argues that the Superior Court’s jury instruction did not

adequately define “enterprise” under the RICO statute because it did not require “a

decision-making framework” or that “the enterprise exist[ed] separate and apart

from its pattern of racketeering.”6          We review the denial of a requested jury

instruction de novo.7

       “In evaluating the propriety of a jury charge, the jury instructions must be

viewed as a whole.”8 A jury instruction is not a ground for reversal if “it is


6
  11 Del. C. § 1503.
7
  Bentley v. State, 930 A.2d 866, 875 (Del. 2007).
8
  Culver v. Bennett, 588 A.2d 1094, 1096 (Del. 1991) (citing Probst v. State, 547 A.2d 114, 119
(Del. 1988)).



                                               8
reasonably informative, not misleading and does not undermine the jury’s ability to

intelligently perform its duty.”9 “Although a party is not entitled to a particular

jury instruction, a party does have the unqualified right to have the jury instructed

with a correct statement of the substance of the law.”10 “An instruction which

tracks the statutory language is adequate to inform the jury.”11

       Lloyd relies on Stroik v. State, where we held that the Delaware RICO

statute is “essentially an adaptation of its federal counterpart” and thus, “reliance

on federal precedent in this limited factual setting is warranted.”12 This Court then

looked to United States v. Turkette,13 a United States Supreme Court case, and

United States v. Riccobene,14 a Third Circuit case, to refine the statutory definition

of “enterprise” for purposes of a RICO violation.15 Citing the so-called Turkette-

Riccobene factors, we held that to establish an “enterprise” under the RICO statute,

the State had to demonstrate that (1) the enterprise is an ongoing organization with

some sort of framework for making or carrying out decisions; (2) the various




9
   Koutoufaris v. Dick, 604 A.2d 390, 399 (Del. 1992) (citing Sirmans v. Penn, 588 A.2d 1103
(Del. 1991)).
10
   Culver, 588 A.2d at 1096 (citing Flamer v. State, 490 A.2d 104, 128 (Del. 1983)).
11
   Robertson v. State, 596 A.2d 1345, 1354 (Del. 1991).
12
   Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996).
13
   452 U.S. 576 (1981).
14
    709 F.2d 214 (3d Cir. 1983), overruled by United States v. Bergrin, 650 F.3d 257 (3d Cir.
2011).
15
   Stroik, 671 A.2d at 1340-41.



                                             9
associates function as a continuing unit; and (3) the enterprise is separate and apart

from the pattern of activity in which it engages.16

       Later, in Boyle v. United States, the United States Supreme Court revisited

the structural elements of a RICO violation and eliminated some of the earlier

requirements to establish an association-in-fact enterprise:

       As we said in Turkette, an association-in-fact enterprise is simply a
       continuing unit that functions with a common purpose. Such a group
       need not have a hierarchical structure or a “chain of command”;
       decisions may be made on an ad hoc basis and by any number of
       methods—by majority vote, consensus, a show of strength, etc.
       Members of the group need not have fixed roles; different members
       may perform different roles at different times. The group need not
       have a name, regular meetings, dues, established rules and
       regulations, disciplinary procedures, or induction or initiation
       ceremonies. While the group must function as a continuing unit and
       remain in existence long enough to pursue a course of conduct,
       nothing in RICO exempts an enterprise whose associates engage in
       spurts of activity punctuated by periods of quiescence. Nor is the
       statute limited to groups whose crimes are sophisticated, diverse,
       complex, or unique; for example, a group that does nothing but
       engage in extortion through old-fashioned, unsophisticated, and brutal
       means may fall squarely within the statute’s reach.17

       Relying on Boyle, the Third Circuit expressly overruled its holding in

Ricobenne.18


16
   Id. at 1341.
17
   Boyle v. United States, 556 U.S. 938, 948 (2009).
18
   Bergrin, 650 F.3d at 266 n.5 (3d Cir. 2011) (quoting United States v. Riccobene, 709 F.2d 214,
221-24 (3d. Cir. 1983)) (“Long before Boyle, we held in United States v. Riccobene that
establishing an enterprise requires proof of an ‘ongoing organization’ with a ‘superstructure or
framework,’ members who ‘each ... perform a role in the group consistent with the
organizational structure,’ and ‘an existence beyond that which is necessary merely to commit



                                               10
       Lloyd did not cite Boyle in his opening brief, and failed to take into account

its effect on our decision in Stroik. At oral argument, Lloyd conceded that after

Boyle, the instruction did not have to include the three Turkette-Ricobenne factors.

He then shifted his attack to the lack of a longevity requirement in the instruction

explaining that the group must remain in existence “long enough to pursue a course

of conduct.”19

       Although it might have been helpful to the jury if the Superior Court

elaborated on the longevity requirement, the jury instruction as given did not

“undermine the jury’s ability to intelligently perform its duty.” The instruction

tracked the language of the Delaware RICO statute. The jury was also instructed

that to find Lloyd guilty of racketeering, it had to find that he was associated with

an enterprise that was engaged in a pattern of racketeering, and that a pattern of

racketeering is established by the commission of two or more felonies not too close

in time to be considered a single act, but no more than ten years apart.20 Thus, the

jury was informed that it had to find that the defendants committed multiple

felonies over time. Although we recommend that, in the future, the Superior Court


each of the acts charged as predicate racketeering offenses.’ To the extent that this holding is
inconsistent with Boyle, it is no longer good law.”).
19
   Boyle, 556 U.S. at 948.
20
   App. to Opening Br. at 769 (“[T]wo or more felonies including, but not limited to, felony
aggravated possession or drug dealing which are related to the enterprise’s affairs but are not so
closely related to each other as connected in time and place to constitute a single act, yet the
felonies were not more than ten years apart.”).



                                               11
give a more comprehensive jury instruction similar to the Third Circuit’s model

instruction,21 reading the instruction here as a whole, it was sufficient to inform the

jury of the elements of racketeering under Delaware law.

      B. Insufficient Evidence of Association–In-Fact Enterprise

      Lloyd next makes a related claim that the State presented insufficient

evidence of an “association-in-fact” enterprise under the RICO statute to convict

him of racketeering. Ordinarily, we review claims of insufficiency of the evidence

“to determine whether any rational trier of fact, viewing the evidence in the light

most favorable to the prosecution could have found the essential elements of the

charged offense beyond a reasonable doubt.”22 But Lloyd did not raise the issue

below. Therefore, we review only for plain error.23 Plain error “is limited to

material defects which are apparent on the face of the record, which are basic,

serious, and fundamental in their character, and which clearly deprive an accused

of a substantial right, or which clearly show manifest injustice.”24




21
   See THIRD CIRCUIT MODEL CRIMINAL JURY INSTRUCTIONS, Racketeer Influenced and Corrupt
Organizations (RICO), No. 6.18.1962C RICO – Conducting or Participating in the Conduct of
the Affairs of an Enterprise Through a Pattern of Racketeering Activity; Elements of the
Offense; No. 6.18.1962C-2 RICO – “Enterprise;” Association in Fact Defined, available at,
http://www.ca3.uscourts.gov/sites/ca3/files/Chap%206%20RICO%20May%202013Rev.pdf (last
visited Dec. 16, 2016).
22
   Hardin v. State, 844 A.2d 982, 990 (Del. 2004) (internal citations omitted).
23
   Bullock v. State, 775 A.2d 1043, 1046 (Del. 2001).
24
   Wainright v. State, 504 A.2d 1096, 1100 (Del. 1986).



                                           12
       Once again Lloyd relies on Stroik v. State, and claims that the State was

required to prove that the enterprise had an existence “separate and apart from the

pattern of activity in which it engages.”25 But as explained previously, Boyle v.

United States changed the RICO landscape by dispensing with the “separate” or

“ascertainable” structure requirement. After Boyle, under the RICO statute the

State need only prove that an association-in-fact enterprise has three

characteristics: (1) a purpose, (2) relationships among those associated with the

enterprise, and (3) longevity sufficient to permit these associates to pursue the

enterprise’s purpose.

       Here the State presented ample evidence of an association-in-fact enterprise

under the RICO statute as interpreted by Boyle. Lloyd, Howard, Wanda Lloyd

(“Wanda”), and Galen Collins, the top ranks of the group, referred to themselves as

national political figures.26 Wanda testified that Lloyd and his various associates

would package, pick up, and deliver heroin at her house, the “White House.”27

Multiple witnesses testified that Lloyd was the leader of the group, and that they




25
   United States v. Turkette, 452 U.S. 576, 577 (1981); see also Stroik v. State, 671 A.2d at 1341
(Del. 1996) (The State must show “that the enterprise [is] separate and apart from the pattern of
activity in which it engages.”).
26
   Multiple witnesses testified that Lloyd was “Obama,” Howard was “Michelle,” Collins was
“Biden,” Wanda was “Condoleeza,” and Wanda’s house was the “White House.” E.g., App. to
Opening Br. at 169 (Wanda), 188 (Collins), 475-78 (Howard).
27
   Id. at 170-71.



                                               13
acted at Lloyd’s direction.28 Demetrius Brown,29 Brian Miller,30 Jarrell,31 and

Roscoe32 testified that they sold thousands of bundles of heroin for Lloyd over

many weeks’ time.           The State introduced wiretap recordings, evidence of

controlled buys, videos, and the testimony of over fifty witnesses establishing

criminal activity spanning multiple incidents over a lengthy period of time. Much

of the evidence was corroborated by multiple witnesses. Thus, the Superior Court

did not plainly err by failing to declare a mistrial for lack of evidence of an

association-in-fact enterprise.

       C. Prosecutorial Misconduct

       Lloyd next argues that the State engaged in prosecutorial misconduct.

Specifically, he alleges that the prosecutor improperly vouched for the credibility

of certain witnesses and bolstered their testimony by asking co-defendants on

direct examination about their plea agreements and whether they were required to

testify truthfully.     He also argues that the prosecutor improperly bolstered




28
    Id. at 168 (Wanda testified that, at Lloyd’s direction, she would rent cars for herself and
Blayton Palmer throughout December 2013 to October 2014); 375-75 (Jarrell testified he would
rent cars and switch his cell phones at Lloyd’s direction, and that he would make deliveries for
Lloyd), 437 (Roscoe testified that Lloyd would tell him when and where to make deliveries), 479
(Howard testified that she would switch cell phones often at Lloyd’s direction).
29
   Id. at 193-94.
30
   Id. at 245-57.
31
   Id. at 297-332.
32
   App. to Opening Br. at 433-37.



                                              14
testimony from co-defendants about Lloyd’s illegal activities by calling witnesses

to testify that they pled guilty to racketeering.

       Lloyd did not object at trial when the State offered the plea agreements into

evidence during the direct examination of the co-defendants.                   Once the plea

agreements were admitted into evidence on direct examination without objection,

the State was free to examine the witnesses about the plea agreements and their

contents. The trial judge thus did not plainly err in permitting co-defendants to be

examined on direct examination about their plea agreements.33

       D. Cumulative Error

       Finally, Lloyd argues that the cumulative impact of the errors in the jury

instructions and prosecutorial misconduct amount to plain error. “[W]here there

are several errors in a trial, a reviewing court must weigh the cumulative impact to

determine whether there was plain error.”34 We have previously held that the trial

court did not err in instructing the jury, and that the Superior Court did not plainly

err by allowing the State to examine the co-defendants on their plea agreements

which were admitted into evidence without objection. Thus, Lloyd’s cumulative

error claim fails.


33
   We express no opinion on the admissibility of plea agreements under the Delaware Rules of
Evidence, or limitations on the use of plea agreements by the State during the direct examination
of co-defendants.
34
   Wright v. State, 405 A.2d 685, 690 (Del. 1979).



                                               15
                         IV.   Conclusion

We affirm the judgment of the Superior Court.




                                16
