                             PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 13-4630


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

JORGE PETER CORNELL, a/k/a King J, a/k/a King Jay,

               Defendant - Appellant.



                            No. 13-4644


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ERNESTO WILSON, a/k/a King Yayo,

               Defendant - Appellant.



                            No. 13-4877


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

RUSSELL LLOYD KILFOIL, a/k/a King Peaceful, a/k/a Jonathan
Hernandez,
                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:11-cr-00402-JAB-1; 1:11-cr-00402-JAB-
14; 1:11-cr-00402-JAB-2)


Argued:   January 29, 2015               Decided:   March 16, 2015


Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge King and Senior Judge Davis joined.


ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina; Brian Michael Aus, BRIAN AUS,
ATTORNEY AT LAW, Durham, North Carolina; Curtis Scott Holmes,
BROCK,   PAYNE  &   MEECE,   PA,   Durham,  North  Carolina,   for
Appellants.    Sonja M. Ralston, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.      ON BRIEF: Leslie R.
Caldwell, Assistant Attorney General, David A. O’Neil, Acting
Deputy   Assistant   Attorney   General,   Leshia  M.   Lee-Dixon,
Organized Crime and Gang Section, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand,
United States Attorney, Greensboro, North Carolina, Robert A.J.
Lang, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Winston-Salem, North Carolina, for Appellees.




                                 2
AGEE, Circuit Judge:

       This case arises from the prosecution of several members of

a violent street gang known as the Latin Kings.                                    Following a

multi-week         trial,      a     jury     convicted        Jorge    Cornell,       Russell

Kilfoil,       and      Ernesto       Wilson      (collectively         “Defendants”)         of

conspiracy to violate the Racketeering Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(d), based on their

activities         in   connection       with     the    Greensboro,         North    Carolina

chapter       of    the      gang.       On     appeal,    Defendants          make    several

assertions of error concerning their trial, primarily focusing

on the district court’s jury instructions and the sufficiency of

the    evidence.             Finding     no     reversible      error,       we     affirm   the

judgment of the district court.



                                                 I.

       The    Latin       Kings    is    a    nationwide       street       gang    with   power

centers in Chicago and New York.                      At the local level, including

in    the    state      of    North     Carolina,       groups    of     Latin       Kings   are

organized into “tribes” anchored to a specific geographic area.

Each tribe has a multi-level leadership structure denominated as

the    First       through     Fifth     Crowns.         The    First       Crown    leads   the

tribe, giving orders and running the group, with each descending

Crown assigned lesser leadership tasks.                           Full members of the

gang    are    traditionally            given    “King    Names”       or    “Queen    Names,”

                                                 3
which   is     how    they     are     known       within     the    organization       and    to

others on the street.                  The gang finances itself through weekly

membership dues and the proceeds of various illegal activities

its    members       undertake.          These        funds    are    used   to   buy    food,

clothing,       and    guns,      as    well      as   to     support   members     who       are

incarcerated.           Central        to    the      organization      is   a    culture      of

violence,       which   is     manifested          through     frequent      disputes        with

rival gangs.          Violence and the threat of violence are also used

to maintain compliance with gang rules.

       Count I of the controlling indictment charged Defendants

and eleven others with “knowingly and intentionally conspir[ing]

to    conduct    and    participate,           directly        and   indirectly,        in    the

conduct    of    the    affairs         of   [a    criminal]        enterprise     through     a

pattern of racketeering activity,” in violation of 18 U.S.C. §

1962(d).       J.A. 155.          The criminal enterprise was identified as

the    Latin     Kings,      “a    violent         street     gang    with   thousands        of

members” who “operated in the Middle District of North Carolina

since at least 2005.”             J.A. 147, 151. 1




1
  The indictment further charged Cornell with assault with a
firearm in aid of racketeering, in violation of 18 U.S.C. §
1959(a)(3), and discharging a firearm in the course of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
Cornell was convicted on both charges, but he does not challenge
those convictions on appeal and therefore they are not discussed
below.


                                                  4
        Defendants      proceeded     to       trial    along        with     four     co-

defendants.      With the aid of several cooperating witnesses, the

Government      presented    extensive     testimony        about      the    Greensboro

tribe’s     illegal     activities,     which     included          attempted    murder,

armed robbery, and bank fraud.                 The Government also presented

evidence that Cornell, known as “King Jay,” served as the First

Crown      of   the    Greensboro     tribe      throughout          the     conspiracy.

Kilfoil, “King Peaceful,” was likewise identified as holding a

variety of leadership positions in the tribe.                        Wilson was not a

member of the gang, but the Government offered evidence that he

participated      in    several     robberies        with     the    Latin     Kings    at

Cornell’s direction and associated with the gang on a number of

occasions.

      At the close of evidence, the district court dismissed the

charges against one co-defendant and sent the case to the jury.

After      deliberating     for   approximately         three        days,    the      jury

convicted Defendants on the RICO conspiracy charge and acquitted

the     remaining      co-defendants.          The     jury    returned        identical

verdict forms for each Defendant, with special findings that the

members of the conspiracy had either planned or committed one

murder conspiracy, one attempted murder, multiple robberies, one

act   of    interference     with    interstate        commerce        by    threats    or

violence, and multiple acts of bank fraud.



                                           5
       Defendants moved for post-trial relief, raising many of the

same       arguments       now   advanced        on      appeal.      The      district      court

denied       their     motions         and    sentenced        Cornell      to    336   months’

imprisonment, Wilson to 204 months’ imprisonment, and Kilfoil to

180 months’ imprisonment.                     Defendants timely appealed and we

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                                 II.

       Defendants raise several assignments of error on appeal,

some individually and some jointly.                        We address the joint claims

first, setting forth additional facts in context.



                                                 A.

       Defendants were each convicted of conspiracy to participate

in     a    racketeering         enterprise         in     violation      of     18   U.S.C.    §

1962(d).          “[T]o satisfy § 1962(d), the government must 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)      (alteration      in

original) (citation omitted).                       Thus, as part of its conspiracy

                                                    6
case     against        Defendants,          the     Government       was       required    to

establish that the alleged RICO enterprise affected interstate

commerce.

       Following        this       Court’s    precedent,        see   United      States    v.

Gray,    137     F.3d       765,    772-73    (4th       Cir.   1998)     (en    banc),    the

district court decided that a de minimis effect on interstate

commerce is all that was required to satisfy RICO’s commerce

element.        See also United States v. Williams, 342 F.3d 350, 354

(4th     Cir.       2003)     (“[W]here      the     [federal      statute]       reaches    a

quintessentially economic activity that, taken in the aggregate,

substantially impacts interstate commerce, the minimal effects

standard       does     not    contravene          the   teachings       of   [the   Supreme

Court.]”).           The district court thus instructed the jury that

“[t]he    Government          must    prove     .    .   .   the   enterprise        activity

affected interstate or foreign commerce in any way, no matter

how minimal.”         J.A. 4363.

       Defendants claim that this instruction was in error because

§ 1962(d) requires more than a de minimis effect on interstate

commerce       in    cases     where    the        enterprise      has   not     engaged    in

economic activity.                 According to Defendants, the Latin Kings

were not shown to have conducted considerable economic activity,

and therefore “the Government must prove that the alleged RICO

enterprise has a substantial effect on interstate commerce as an

essential,       constitutional,          and       jurisdictional        element     of   the

                                                7
crime       justifying    the     federal       reach    of    the     RICO    statute.”

Opening Br. 23.          As support, Defendants cite Waucaush v. United

States, 380 F.3d 251 (6th Cir. 2004).

       In    Waucaush,     the    Sixth    Circuit      concluded      that    where       an

alleged criminal enterprise engaged in conduct “classified as

conduct of the noneconomic strain” a “minimal effect on commerce

will not do.”            Id. at 256.        In that case, Waucaush and his

fellow gang members murdered, conspired to murder, and assaulted

members of a rival gang.              Id. at 253.        Waucaush pled guilty to

conspiring to violate RICO but later moved to vacate his plea.

Id.     In addressing the jurisdictional reach of § 1962(d), the

Sixth Circuit held that “where the enterprise itself did not

engage in economic activity,” as was true with defendant’s gang

which only engaged in “violence qua violence,” the prosecution

had to show a substantial effect on interstate commerce.                            Id. at

256.     The court ultimately found the evidence insufficient to

meet this heightened threshold.             Id. at 258.

       Waucaush is not the law in this Circuit and we have doubts

about its validity, particularly in light of Gonzales v. Raich,

545    U.S.    1    (2005),      where    the    Supreme       Court    more       recently

reiterated      that     “when    a   general     regulatory         statute       bears    a

substantial relation to commerce, the de minimis character of

individual         instances     arising    under       that    statute       is    of     no

consequence.”         Id. at 17 (citations and internal quotation marks

                                            8
omitted); see also United States v. Nascimento, 491 F.3d 25, 30,

37-39    (1st     Cir.        2007)       (finding   Waucaush         incompatible     with

Gonzales, and concluding “that the normal requirements of the

RICO statute apply to defendants involved with enterprises that

are     engaged       only          in      noneconomic         criminal      activity”).

Nevertheless, even assuming Waucaush is correct and the district

court should have followed its holding, it affords Defendants no

relief in this case.

       The   Sixth       Circuit’s           decision      to     apply      an    elevated

evidentiary burden in Waucaush hinged on the fact that “there

[was] no evidence . . . that the [gang] was involved in any sort

of economic enterprise.”                  380 F.3d at 256.        Indeed, the court’s

holding is specifically limited to cases “where the enterprise

itself did not engage in economic activity.”                               Id.     That is

clearly not the case before us.                      For example, the Government

presented       ample     evidence           that    the    RICO       enterprise,     the

Greensboro Latin Kings, committed multiple acts of bank fraud.

In    particular,       two     gang      members,    Charles      Moore     and   Richard

Robinson, devised and executed a false check scheme – Robinson

wrote   Moore     checks       on     a   defunct    account     at    Woodforest     Bank,

which Robinson then cashed at Wachovia Bank.                          The proceeds from

this scam were then shared with gang leadership.                           This evidence,

standing     alone,      is    sufficient       to   take   this      case   outside   the

reach of Waucaush.            See United States v. Spinello, 265 F.3d 150,

                                               9
156 (3d Cir. 2001) (“A bank robber is obviously motivated by his

or   her    own    immediate     economic       gain   -    money    is,    of   course,

‘economic’ - and . . . the victim bank and its depositors suffer

immediate economic losses as well as the disruption to their

respective        abilities     to     engage    in    commerce,         interstate   or

otherwise,        by    such    activities       as    lending       and     purchasing

assets.”); United States v. Alegria, 192 F.3d 179, 189-90 (1st

Cir. 1999) (noting that bank fraud is an “economic” crime); see

also United States v. Robinson, 389 F.3d 582, 594 (6th Cir.

2004)      (collecting     cases       identifying         banks    as     channels   or

instrumentalities         of    interstate       commerce).          Accordingly,     we

conclude that the district court did not err by applying the

minimal effects standard in this case.

      We further conclude that the trial evidence was more than

sufficient to meet this minimal threshold.                          If the foregoing

bank fraud connection to interstate commerce were not enough,

the Government also presented testimony that the gang regularly

communicated       by   phone    and    committed      multiple      robberies     using

guns that traveled in interstate commerce.                    See United States v.

Mejia, 545 F.3d 179, 203 (2d Cir. 2008) (“Transporting goods,

such as firearms or stolen vehicles, across state lines is a

classic example of engaging in interstate commerce.”); United

States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (testimony

that the gun used during the commission of the crime was not

                                           10
manufactured       in     Virginia    “established             the    interstate       commerce

requirement”); United States v. Atcheson, 94 F.3d 1237, 1243

(9th Cir. 1996) (noting that “placement of out-of-state phone

calls”      further       demonstrated        a     “connection          with     interstate

commerce”); United States v. Muskovsky, 863 F.2d 1319, 1325 (7th

Cir.   1988)       (finding     interstate          nexus       based     on    the     use    of

interstate telephone calls to verify credit card transactions);

United States v. Allen, 656 F.2d 964, 964 (4th Cir. 1981) (per

curiam) (“[S]upplies used in [defendant’s] bookmaking operations

which originated outside of Maryland provided a sufficient nexus

between     the     enterprise        and     interstate             commerce     to    invoke

RICO.”); see also United States v. Delgado, 401 F.3d 290, 297

(5th Cir. 2005) (finding use of Western Union, telephones, the

U.S.     Postal      Service,        and    pagers         to        transfer    money        and

communicate        with    each    other      in     furtherance         of     the     group’s

criminal     purposes        was     sufficient           to    demonstrate        that       the

enterprise affected interstate commerce).



                                              B.

       As previously noted, to establish a RICO conspiracy the

government     must       prove      “‘that        each    defendant       knowingly          and

willfully agreed that he or some other member of the conspiracy

would commit at least two racketeering acts.’”                                  Mouzone, 687

F.3d   at    218     (citation       omitted).            Racketeering          acts,     often

                                              11
referred    to   as   predicate    acts,   include    any     act   or   threat

involving murder, kidnapping, gambling, arson, robbery, bribery,

extortion, dealing in obscene matter, or dealing in a controlled

substance    chargeable     under    state    law     and     punishable     by

imprisonment for more than one year.         See 18 U.S.C. § 1961(1).

     In charging the jury on this element, the district court

instructed that the “verdict must be unanimous as to which type

of racketeering acts you have found by your unanimous verdict

were committed or intended to be committed by members of the

racketeering conspiracy that the defendant has joined.”                    J.A.

4372.      The   verdict   forms    (reproduced      below)    mirrored    this

instruction, listing multiple types of crimes that satisfy the

definition of racketeering acts and asking the jury to decide

whether some member of the conspiracy had committed or intended

to commit no act, a single act, or multiple acts of each type:




                                     12
J.A. 4479.

      As they did below, Defendants contend this instruction was

erroneous.    Although Defendants’ exact argument on this point is

unclear    from   their   brief,   we    find   no   error    in    the    district

court’s charge regardless of how the issue is framed.                      See Al-

Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225, 235 (4th

Cir. 2000) (“We review de novo the claim that jury instructions

fail to correctly state the law.”).

      To the extent Defendants argue that the district court was

required to charge the jury that it had to unanimously agree on

the specific racketeering acts that the conspirators engaged in

during the conspiracy, such a claim cannot succeed.                   See Opening

Br.   13   (“Absent   such   an    instruction,       it     is    impossible   to

determine which, if any, of the overt acts the jury unanimously

found to be proven beyond a reasonable doubt.”).

      In Salinas v. United States, the Supreme Court explained

that, unlike traditional conspiracy, the RICO conspiracy statute

contains “no requirement of some overt act or specific act.”

522 U.S. 52, 63 (1997).        Instead, a RICO conspiracy may “exist

even if a conspirator does not agree to commit or facilitate

each and every part of the substantive offense.”                          Id.   The

partners in the criminal plan need only “agree to pursue the

same criminal objective,” regardless of whether that criminal

objective is ever started or carried out.              Id.        Thus, to secure

                                        13
a conviction for RICO conspiracy, the government is not required

to   allege      or         prove     the     actual        completion       of     a   single

racketeering act by the defendant or any other member of the

conspiracy.          See United States v. Browne, 505 F.3d 1229, 1263–64

(11th Cir. 2007) (noting that RICO conspiracy charges do not

require proof of an overt act); United States v. Corrado, 286

F.3d 934, 937 (6th Cir. 2002) (“[Section] 1962(d) requires no

‘overt     or    specific           act’     in    carrying        the     RICO    enterprise

forward.”).           Because        completion        of    an    overt    act    is   not    an

element of the offense, it follows that an instruction, such as

that suggested by Defendants, directing the jury to identify

what predicate acts actually occurred is not required.

     Defendants are likewise unsuccessful if we interpret their

argument as contesting the district court’s decision to require

unanimity       as     to     only     the    types         of    racketeering      acts      the

conspirators agreed to commit.                     See Opening Br. 28 (“Instead of

requiring unanimity as to the predicate acts, the district court

in this case instead required unanimity only as to the type of

acts.”).        “[A]        RICO    conspiracy         charge     need     not    specify     the

predicate racketeering acts that the defendant agreed would be

committed.”          United States v. Randall, 661 F.3d 1291, 1297 (10th

Cir. 2011).          For that reason, every circuit to have considered

this issue has concluded that for a RICO conspiracy charge the

jury need only be unanimous as to the types of racketeering acts

                                                  14
that the defendants agreed to commit.                    See United States v.

Applins, 637 F.3d 59, 82 (2d Cir. 2011); Randall, 661 F.3d at

1296-99 (collecting cases); see also Third Circuit Manual of

Model Jury Instructions – Criminal § 6.18.1962D (2013) (“[Y]our

verdict     must    be    unanimous     as     to    which    type    or   types     of

racketeering activity [defendant] agreed would be committed . .

. .”).        In agreement with these cases, we conclude that the

district court’s instruction requiring unanimity as to the types

of racketeering acts that members of the conspiracy agreed to

commit was sufficient, and no instruction as to the commission

of specific acts was required. 2



                                         C.

       In   their     final   joint    claim,       Defendants   argue     that     the

district court improperly issued two Allen charges, the second

of   which,    they      contend,    coerced    the    jury    into   rendering     an

unfavorable verdict.          Derived from Allen v. United States, 164

U.S.    492    (1896),      the     commonly    termed       Allen    charge   is     a


2
  During oral argument, Defendants raised, for the first time, an
additional argument that this jury instruction was improper
because it failed to conform to the indictment.       Subject to
certain exceptions not applicable here, we do not consider on
appeal issues raised for the first time at oral argument.     See
W. Va. CWP Fund v. Stacy, 671 F.3d 378, 389 (4th Cir. 2011);
Goad v. Celotex Corp., 831 F.2d 508, 512 n.12 (4th Cir. 1987).
Accordingly, we do not address the merits of this argument and
consider it waived.


                                         15
supplemental instruction given by a trial court when the jury

has reached an impasse in its deliberations and is unable to

reach a consensus.           See United States v. Seeright, 978 F.2d 842,

845 n.* (4th Cir. 1992).             “[A]n Allen charge must not coerce the

jury, and it must be fair, neutral and balanced.”                     United States

v. Cropp, 127 F.3d 354, 359-60 (4th Cir. 1997).                        We review a

district     court’s    decision       to    give    an    Allen   charge   and     the

content of such a charge for abuse of discretion.                     United States

v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).

       The jury deliberated over the course of four days, from

Friday,    November     16    to   Wednesday,       November    21.    During      this

period, the district court gave two modified Allen charges.                         The

first came at the end of the second day of deliberations on

Monday, November 19, and in response to the jury’s request to

view certain pieces of evidence.                 In addressing the evidentiary

request,      the   district       court      explained      the   requirement      of

unanimity and reminded the jury of its “duty to deliberate until

you’ve been able to reach a verdict in this case.”                      J.A. 4408.

The court further noted that the jury’s “only interest is to

seek   the    truth.”         J.A.    4409.         No    objection   was   made    by

Defendants when this charge was given.

       The second Allen charge came on Wednesday morning after the

jury   sent    a    note     indicating      that     they    could   not   reach    a

unanimous verdict.            Over Defendants’ objections, the district

                                            16
court told the jury that the trial “ha[d] required a certain

amount    of    time,      money,      and    other    resources”      and    “it[]      [was]

unlikely a jury of twelve men and women could be assembled [for

a    retrial]    who       are    more    conscientious       as    you    have     been     or

impartial      as    you     have      exhibited    and    more     competent      than     the

twelve of you.”         J.A. 4453.            The court cautioned that it had no

opinion about the case and its instructions were not “intend[ed]

to    force     any     of       you     to   abandon      clearly     held        views     or

convictions.”         J.A. 4453.          Continuing, the court asked jurors in

the minority to “listen and carefully consider the views of the

majority” and vice versa.                J.A. 4453–54.        The court concluded by

reminding the jury that “at all times . . . no juror is expected

to give up a conscientious conviction that he or she may have

regarding a defendant’s guilt or innocence.”                           J.A. 4454.           The

jury resumed deliberations, and after approximately three hours,

returned a verdict convicting Defendants on the RICO conspiracy

charge but acquitting the other three co-defendants.                               Also, as

noted     earlier,      in       completing      the      verdict     sheets       for     each

Defendant, the jury found no predicate acts for RICO purposes in

four of the nine categories submitted for their determination.

        Defendants      do       not   contest      the   content     of     the    district

court’s Allen charges and we agree that such a claim would be

meritless.          There were no erroneous statements of law by the

district court in either charge.                      See United States v. Hylton,

                                               17
349 F.3d 781, 788 (4th Cir. 2003) (upholding a similarly worded

Allen charge).      Rather,   Defendants    argue   that      the    effect   of

giving the second Allen charge was improperly coercive.

     To the extent Defendants suggest that a trial court should

at no time give a second Allen charge, we disagree.                 Our circuit

has never adopted a flat ban on multiple Allen charges and we

decline to do so now.      See Seeright, 978 F.2d at 850 (analyzing

a second Allen charge under the traditional abuse of discretion

test).    The district court “is [often] in the best position to

gauge whether a jury is deadlocked or able to proceed further

with its deliberations,” and thus it is beneficial to evaluate

the propriety of a second Allen charge in light of all the

circumstances rather than through an arbitrary rule.                  Id.; see

also United States v. Barone, 114 F.3d 1284, 1305 (1st Cir.

1997) (declining to implement a per se ban on multiple Allen

charges   because   “the   trial   judge   is   closer   to    the     facts”).

Accordingly, we examine the impact of an Allen charge on a case-

by-case basis.

     The crux of our Allen charge analysis is the likelihood of

coercion.    The district court acts within its discretion when

the charge or charges, taken as a whole and in light of all the

circumstances, do not coerce the jurors to abandon their view.

See United States v. Martin, 756 F.2d 323, 326 (4th Cir. 1985)

(“The danger of the Allen-type charge is the possibility that

                                    18
the minority on the jury may be coerced into going along with

the majority.”); Burgos, 55 F.3d at 941 (“It is critical that an

Allen charge not coerce one side or the other into changing its

position for the sake of unanimity.”); Cropp, 127 F.3d at 360

(“[W]e   do    not    evaluate       a    judge’s      instructions      in    isolated

segments, but we look at the instructions given as a whole.”).

In   determining      whether     an     Allen   charge       has   an   impermissibly

coercive effect on jury deliberations, some of the factors we

consider      include       the   language        of     the        instruction,     its

incorporation        with    other       instructions,        the     timing    of   the

instruction,       and      the      length      of     the     jury’s        subsequent

deliberations.        See Jenkins v. United States, 380 U.S. 445, 446

(1965); United States v. Webb, 816 F.2d 1263, 1266 (8th Cir.

1987).     These factors are not exclusive, and in the end, the

ultimate      question      is    whether        the    Allen        instruction     was

impermissibly coercive.

      Under the circumstances of this case, we conclude there was

no coercion as a result of the second Allen charge.                        First, the

jury deliberated for over three hours after the second Allen

charge and before returning a verdict.                        See United States v.

Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (“[T]he fact that

the jury deliberated for approximately three hours after hearing

the charge provides adequate assurance that the jury was not

improperly     coerced      by    the     district      court’s       instruction.”);

                                           19
United    States     v.     West,   877    F.2d   281,    291     (4th    Cir.   1989)

(rejecting a similar claim on grounds that the jury deliberated

for two hours following the charge).                Second, and very tellingly

in this case, the jury returned a split verdict.                          Defendants’

claim of coercion is negated by the fact that the jury acquitted

three co-defendants and found predicate acts in only five of the

nine     categories       submitted      for    their    consideration.          These

actions    reflect      a   thoughtful     and    deliberate      jury    –   not    one

acting    under    an     impulse   of    coercion.       See    United    States     v.

Heath, 970 F.2d 1397, 1406 (5th Cir. 1992) (finding no coercion

because the jury’s split verdict was “a discriminating one”);

West, 877 F.2d at 288 (when the verdict is split, “[i]t can be

inferred that the jury carefully considered the evidence against

each     defendant        and   based     its     verdict       solely    upon      that

evidence”). 3

       In arguing for the opposite conclusion, Defendants rely on

United States v. Fossler, 597 F.2d 478 (5th Cir. 1979), which is

plainly distinguishable.              In Fossler, the Fifth Circuit found

the    district    court’s      second    Allen    charge   improperly        coercive

when it was given after “[t]he jury indicated at three separate

3
   Defendants   suggest  that   the  second Allen   charge  was
impermissible because it was given the day before Thanksgiving.
This argument is nothing but pure speculation.    We decline to
find the charge coercive solely on this fact when all of the
relevant evidence indicates the jury’s deliberations were
unaffected by any improper pressure.


                                           20
points in time, over a three day period, that it could not reach

a decision.”        Id. at 485.              And, “[o]nly one hour after the

second Allen charge was sent to the jury, a guilty verdict was

returned.”        Id.     Given the jury’s prior unequivocal deadlock,

the Fifth Circuit concluded that the last instruction must have

had a coercive effect.               Id.     There is no comparable evidence of

perpetual deadlock in this case sufficient to support a like

result.     We regularly uphold Allen instructions after the jury

first reports impasse, as happened here.                    See Cropp, 127 F.3d at

360   (affirming        where       the    “district   court     gave   the   jurors    a

lengthy   Allen     charge          after    the   jurors   [first]     expressed      an

inability    to    reach        a    consensus”);      Hylton,    349   F.3d   at   788

(same).

      In sum, we are unpersuaded that the jury was coerced into

reaching its verdict.               After the second Allen charge, the jury

deliberated for several more hours and returned a split verdict,

indicating they carefully considered the evidence against each

defendant.    Compare Booth-El v. Nuth, 288 F.3d 571, 580-82 (4th

Cir. 2002), with Tucker v. Catoe, 221 F.3d 600, 611 (4th Cir.

2000).    On these facts, we find no abuse of discretion in giving

the second Allen charge.




                                              21
                                      III.

      Cornell individually raises two issues regarding the trial

evidence.      First, he challenges the district court’s decision to

strike    the    testimony      of   defense     witness        Saralee    Gallien.

Second,   he    challenges   the     admission    of   a    letter    purportedly

written to him by a former gang member.                We find no merit in

either argument.



                                       A.

      At the beginning of trial, the district court granted the

Government’s     motion    to    sequester     witnesses         consistent    with

Federal Rule of Evidence 615.           The district court’s ruling did

not   specify     any    additional    limitations         on    witness     contact

outside the text of Rule 615, which provides, in relevant part,

that “[a]t a party’s request, the court must order witnesses

excluded so that they cannot hear other witnesses’ testimony.”

Fed. R. Evid. 615.

      Government witness Charles Moore, a former member of the

Latin Kings, testified that in August 2011 he was attacked by a

rival gang, and that Cornell orchestrated a drive-by shooting in

retaliation.       The    Government     presented     this       incident    as   a

racketeering act for the conspiracy charge (either as attempted

murder or conspiracy to commit murder) and not as an independent

crime.

                                       22
        To   impeach       Moore’s      testimony,    Cornell        called    Saralee

Gallien as his witness.              She testified that Moore was homeless

and briefly lived in her apartment at Cornell’s request.                           While

living with her, Moore allegedly discussed his injuries from the

August 2011 assault.             Gallien testified that Moore had told her

the incident was amicably resolved without additional violence.

        In   cross-examining            Gallien,     the     Government       elicited

testimony       that       she   made    several     phone     calls    to     Cornell

throughout the course of the trial and had visited him in prison

after Moore testified.               Gallien admitted discussing the case

with Cornell and other supporters, but denied talking about any

specific testimony.

        After hearing this evidence, the district court concluded

that Gallien “more than likely was” aware of Moore’s testimony

before she was called as a witness.                 J.A. 4164.       The court found

her “not to be credible,” J.A. 4160, and specifically noted that

on at least one occasion she took part in a conversation with

Cornell concerning “testimony that has been given in this case,”

J.A.    4163.        The    court    then   struck    her     testimony       in   full,

“particularly that portion [dealing] with whether or not Mr.

Moore    made    a   statement       that   the    [August    2011    incident]     was

worked out between other parties and was amicable.”                     J.A. 4160.

       Cornell       first       argues      that     the      district        court’s

sequestration order acted only to exclude witnesses from the

                                            23
courtroom.       See United States v. Rhynes, 218 F.3d 310, 316 (4th

Cir. 2000) (en banc) (King, J., plurality opinion) (noting that

Rule 615 “serves only to exclude witnesses from the courtroom”).

Thus, according to Cornell, his discussions with Gallien did not

violate the Rule 615 order, and the district court’s decision to

exclude      Gallien’s       testimony     on    the   basis      of    a    non-existent

violation was erroneous.                 Cornell separately argues that the

district     court      abused     its   discretion         by   excluding      Gallien’s

testimony instead of fashioning a less severe sanction. 4

       We    need   not      address     Cornell’s     arguments        on     the   merits

because, even assuming the district court erred by excluding

Gallien’s testimony, any error was harmless.                        See United States

v. Smith, 441 F.3d 254, 263 (4th Cir. 2006) (“Exclusion of a

witness’ testimony is ‘an extreme remedy’ that ‘impinges upon

the   [constitutional]           right    to     present     a   defense,’      and   thus

should      be   used    sparingly.”      (citation         omitted)).         “For   this

constitutional error to be harmless, the Government is required

to    establish,        to   the   satisfaction        of    this      Court    beyond   a

reasonable doubt, ‘that a rational jury would have found the

defendant guilty absent the error.’” Rhynes, 218 F.3d at 323


4
  A district court has three options for addressing a Rule 615
violation: it can sanction the witness for contempt; ensure that
the jury is aware of the violation through cross-examination or
instructions; or exclude all or part of the witness’ testimony.
See Cropp, 127 F.3d at 363.


                                            24
(citation omitted).       The Government has met that burden in this

case.

      Gallien’s testimony concerned only the August 2011 drive-by

shooting, which was presented to the jury as a racketeering act

for the RICO conspiracy charge and not as a stand-alone crime.

Accordingly, even had the jury believed Gallien’s testimony, it

would have, at most, declined to identify attempted murder or

conspiracy to commit murder as a predicate act on the verdict

form.     Excluding the murder references from the list, the jury

still found Defendants’ conspiracy included at least five other

racketeering acts (such as bank fraud) unrelated to the drive-by

shooting.       Thus, we do not hesitate to conclude that the jury

would have convicted Cornell regardless of Gallien’s testimony.

See United States v. John-Baptiste, 747 F.3d 186, 207-08 (3d

Cir. 2014) (explaining that a “RICO conviction must stand so

long as there is sufficient evidence to prove that the defendant

committed two or more predicate acts”); see also Callanan v.

United States, 881 F.2d 229, 234-35 (6th Cir. 1989).



                                          B.

        Cornell’s second argument is that the district court erred

in   admitting    into   evidence    against      him   a   handwritten   letter

found in the common area of his home.              Addressed from “Squrl” to

“Jay,”    the   letter   warned     Jay    that   federal    authorities   were

                                          25
investigating him and they had contacted possible cooperating

witnesses.      The letter also acknowledged “bad blood” between the

two    men.     J.A.     3941.1.       To        authenticate           this      document,     the

Government offered testimony that former gang member Jason Yates

and Cornell used the aliases “King Squirrel” and “King Jay,”

respectively, and that Yates had previously come into conflict

with Cornell in gang politics.                        The Government also disclosed

that authorities had approached Yates about cooperating in this

case, and thus he knew of the investigation.

       The    district       court    admitted             the   letter          over   Cornell’s

objection.          He   argues      this    decision            was    error       because     the

Government     offered       insufficient             evidence      to      authenticate        the

letter as admissible evidence.                   We disagree.

       “We    review     for   abuse        of    discretion            a   district      court’s

ruling concerning the admissibility of evidence.”                                  United States

v. McFadden, 753 F.3d 432, 442 (4th Cir. 2014).                                  “To satisfy the

requirement      of      authenticating               or    identifying            an    item     of

evidence,     the     proponent       must       produce         evidence         sufficient      to

support a finding that the item is what the proponent claims it

is.”     Fed. R. Evid. 901(a).                    “‘[T]he burden to authenticate

under Rule 901 is not high – only a prima facie showing is

required,’      and      a   ‘district           court’s         role       is    to    serve     as

gatekeeper     in     assessing      whether          the    proponent           has    offered    a

satisfactory     foundation          from    which         the    jury      could       reasonably

                                                 26
find that the evidence is authentic.’”               United States v. Hassan,

742 F.3d 104, 133 (4th Cir. 2014) (quoting United States v.

Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)).

      The   letter    purports    to    be   two    things:     a   correspondence

written by Yates and received by Cornell.               As to the former, the

Government presented lay testimony that the letter was in Yates’

handwriting.      Contrary to Cornell’s suggestion otherwise, this

type of evidence is sufficient to support a finding that Yates

was the author.       See Fed. R. Evid. 901(b)(2); United States v.

Dozie, 27 F.3d 95, 98 (4th Cir. 1994) (“[E]xpert opinion on

handwriting is not necessary.”).

      The Government presented similar evidence to verify Cornell

as the recipient.           The testimony established that Cornell used

the alias “King Jay,” and the letter was found in his home after

his   arrest.         The     letter    also       accurately       described   the

antagonistic history between Cornell and Yates.                      Such evidence

is more than sufficient to show that Cornell was the intended

and actual recipient.           See United States v. Reilly, 33 F.3d

1396, 1404 (3d Cir. 1994) (noting that the connection between a

letter and its intended recipient or source can be established

by circumstantial evidence, including its contents).

      Moreover,      even    assuming    the   district        court    improperly

admitted the letter, any error was harmless.                  We can think of no

scenario in which this letter could have improperly swayed the

                                        27
jury.      No less than ten cooperating witnesses identified Cornell

as   the    head    of    the    Greensboro         tribe,    and     the       letter     was

introduced        primarily     to     connect       other     defendants          to     the

conspiracy.        See United States v. McMillon, 14 F.3d 948, 955

(4th Cir. 1994) (finding the admission of improper testimony to

be harmless error because evidence of the defendant’s guilt was

“overwhelming”).



                                            IV.

       Wilson     also    separately       raises    two     claims    of       error.      He

first argues that the evidence was insufficient to find that he

joined the alleged RICO conspiracy.                    Second, he challenges the

sufficiency of the evidence supporting a portion of the jury’s

verdict.     We address these contentions in turn.



                                            A.

       A   defendant      challenging       the   sufficiency         of    the    evidence

“bears ‘a heavy burden.’”              United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997) (citation omitted).                        We will uphold a

defendant’s conviction if, “viewing the evidence in the light

most favorable to the government, there is substantial evidence

in the record to support the verdict.”                       McFadden, 753 F.3d at

444.       “[I]n    the    context     of    a    criminal     action,          substantial

evidence     is    evidence     that   a    reasonable       finder        of   fact     could

                                            28
accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                      United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

        To sustain a RICO conspiracy charge, the government must

prove that the defendant “‘knowingly and intentionally agreed .

.   .    to   conduct      or    participate      in     the       affairs    of    the

enterprise.’”         Mouzone,     687   F.3d   at     218    (citation      omitted).

Wilson argues, as he did below, that the evidence connecting him

to the alleged enterprise in this case, i.e., the Latin Kings,

was insufficient.          He points out that he never joined the gang

and his activities were confined to a few robberies done for his

personal benefit.          According to Wilson, these facts show “mere

association”        with   the     enterprise     and        not    an   intentional

agreement to participate in its affairs.                Opening Br. 39.

        We have little trouble concluding that the Government has

met its burden on the sufficiency of the evidence.                        See United

States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992) (“Once it

has been shown that a conspiracy exists, the evidence need only

establish     a   slight    connection     between      the    defendant      and   the

conspiracy     to    support     conviction.”).         The    evidence      at    trial

included testimony that Wilson participated in at least five

armed robberies with Latin King members.                 He was present at the

meetings planning the robberies and present when the proceeds

were split with gang leaders.             From these facts, the jury could

                                         29
infer that Wilson understood the robberies to constitute Latin

King   activities,        and    that    by    joining     in    them,    he    agreed    to

advance the enterprise.                Under our precedent, nothing more is

required.        See Mouzone, 687 F.3d at 218 (“[A] defendant can

conspire to violate RICO . . . [by] simply agreeing to advance a

RICO undertaking[.]”); see also Salinas, 522 U.S. at 65 (“[I]t

suffices that [the conspirator] adopt the goal of furthering or

facilitating the criminal endeavor.”); Muskovsky, 863 F.2d at

1324 (“[T]he government must show [only] that the defendant ‘was

aware of the essential nature and scope of the enterprise and

intended to participate in it.’” (citation omitted)).

       Although     Wilson       is     correct     “that       the    RICO     conspiracy

statute     does     not        ‘criminalize       mere      association          with    an

enterprise,’” Mouzone, 687 F.3d at 218 (citation omitted), the

evidence    in     this    case       illustrates      far      more   than     his   “mere

association”       with    the    Latin       Kings.       When       construed    in    the

Government’s       favor,       the     record     shows     that      Wilson     directly

participated in several racketeering acts underlying the alleged

conspiracy.       Wilson has pointed to no authority suggesting that

a defendant with this level of participation in the activities

of the RICO enterprise can be considered a mere associate.

       Finally, to the extent Wilson suggests that the Government

could not prove its case because he never officially joined the

Latin Kings, he is mistaken.                  Outsiders who help the enterprise

                                              30
accomplish its illicit goals, thereby evidencing their agreement

to advance the cause, are fully liable under § 1962(d).                  See

Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th

Cir. 2000) (“One must knowingly agree to perform services of a

kind which facilitate the activities of those who are operating

the enterprise in an illegal manner.”); see also Salinas, 522

U.S. at 64 (remarking that under general conspiracy principles,

“supporters are as guilty as the perpetrators”).             Accordingly,

we reject Wilson’s sufficiency challenge.



                                      B.

      In his final argument, Wilson claims that a portion of the

jury verdict is inconsistent with the evidence.             According to

Wilson, “[t]he [j]ury convicted [him] of predicate acts dating

as late as August 2011,” although “[n]o evidence indicated that

[he] remained in North Carolina after May of 2007.”           Opening Br.

45.   We find this claim lacks merit.

      The special verdict sheet in this case consisted of two

parts.     The district court first instructed the jury to answer

Question 1(a), which asked whether they unanimously found the

identified defendant guilty of violating § 1962(d).           Only if the

jury answered yes to Question 1(a), did it move on to Question

1(b).    Under Question 1(b), the court instructed the jury to

indicate    the   type   or   types    of   racketeering   acts   that    it

                                      31
unanimously found were committed or intended to be committed by

some member of the conspiracy that the defendant had joined.

Wilson’s argument is directed at this latter part.

      In    answering     Question      1(b)    as       to        Wilson,    the     jury

identified    a   series    of    racketeering       acts          separate    from    the

robberies in which he was directly involved.                       Wilson argues that

this was fatal to his conviction because a majority of those

racketeering acts occurred after he left North Carolina and was

no longer in contact with his co-conspirators.                           Thus, Wilson

concludes,     “the     court    should      have    dismissed          these       acts.”

Opening Br. 45.       This argument is a nonstarter.                   “[A] defendant

who   has    joined   a    conspiracy     continues           to    violate     the    law

‘through every moment of [the conspiracy’s] existence,’ and he

becomes     responsible    for    the   acts    of       his       co-conspirators      in

pursuit of their common plot.”               Smith v. United States, 133 S.

Ct.   714,    719     (2013)     (alteration        in     original)          (citations

omitted).     “Once it is proven that a defendant was a member of

the conspiracy, the ‘defendant’s membership in the conspiracy is

presumed to continue until he withdraws from the conspiracy by

affirmative action.’”           United States v. Bennett, 984 F.2d 597,

609 (4th Cir. 1993) (citation omitted).                   Wilson did not raise a

withdrawal defense and never requested such a jury instruction.

The jury, therefore, properly considered evidence related to the



                                        32
conspiracy up to its conclusion in determining its verdict as to

Wilson.



                               V.

    For the reasons set out above, the judgment of the district

court is

                                                       AFFIRMED.




                               33
