    Case: 16-30525    Document: 00514195708    Page: 1   Date Filed: 10/13/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                No. 16-30525                           FILED
                                                                 October 13, 2017
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

BYRON JONES, Also Known as Big Baby Jones;
DELOYD JONES, Also Known as Puggy Jones;
SIDNEY PATTERSON, Also Known as Duda Man Patterson,

                                          Defendants–Appellants.




                Appeals from the United States District Court
                    for the Eastern District of Louisiana




Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Byron Jones (“Byron”), Deloyd Jones (“Deloyd”), and Sidney Patterson
appeal their convictions of numerous felonies related to their membership in a
group called Ride or Die (“ROD”). They challenge the sufficiency of the evi-
dence and the admission of certain evidence, the refusal to adopt proposed jury
instructions, and application of the sentencing guidelines. We affirm, except
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                                      No. 16-30525
with respect to Counts 9, 10, 13, and 14, as to which we reverse, and we remand
for resentencing.

                                             I.
       The government claimed that ROD, which operated in New Orleans’s
Eighth Ward, was a criminal gang whose members conspired to distribute
crack cocaine, possess firearms, and commit a variety of violent crimes for the
group’s benefit. The appellants and nine other alleged members of ROD were
charged with murder, assault, racketeering, drug trafficking, using a firearm
in the commission of a violent crime, and related offenses. 1 All except the
appellants pleaded guilty. The government accused the appellants of violating
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Federal
Gun Control Act, the Federal Controlled Substances Act, and the Violent
Crimes in Aid of Racketeering Act (“VICAR”). At trial, the prosecution focused
on six incidents: the February 24, 2010, murder of Travis Arnold and shooting
of Isaac Rowel; the April 29, 2010, shooting of Ernest Augustine; the
November 9, 2010, murder of Rodney Coleman; the January 6, 2011, shooting
of Marquisa Coleman and Jimmy Joseph; the January 17, 2011, murder of
Devin Hutton, shooting of Victor Guy, and assault of Krystal Collier; and the
January 18, 2011, murder of Corey Blue.

       The jury convicted all three appellants on the RICO, drug-trafficking
conspiracy, and gun-conspiracy counts; convicted Byron and acquitted Patter-
son on counts relating to the Arnold murder; convicted Byron on counts relat-
ing to the Augustine shooting and determined that the gun was discharged;
acquitted Deloyd on counts relating to the Rodney Coleman murder; convicted




       1 The indictment lists thirty-three overt acts in which one or more of the appellants
allegedly participated.
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                                 No. 16-30525
Deloyd on counts relating to the shooting of Marquisa Coleman and Joseph and
determined that the gun was discharged; convicted Deloyd on counts relating
to the Hutton murder and the assaults of Guy and Collier; and convicted
Deloyd and Patterson on counts relating to the Blue murder. The district court
sentenced all three appellants to life imprisonment and consecutive sentences
of 120 months’ and 300 months’ imprisonment for using firearms in further-
ance of their crimes. See 18 U.S.C. § 924(c).

                                      II.
      On the sufficiency challenge, “we view the evidence and all inferences to
be drawn from it in the light most favorable to the verdict to determine if a
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Delgado, 401 F.3d 290, 296 (5th
Cir. 2005) (quoting United States v. Posada-Rios, 158 F.3d 832, 855 (5th Cir.
1998)). Because appellants moved for acquittal at trial, our review is de novo
but “highly deferential to the verdict.” United States v. Beacham, 774 F.3d
267, 272 (5th Cir. 2014) (quoting United States v. Isgar, 739 F.3d 829, 835 (5th
Cir. 2014)).

Count 1 (RICO Conspiracy)
      The evidence is sufficient on the RICO convictions. Conspiracy to violate
any of RICO’s substantive provisions is a crime. See 18 U.S.C. § 1962(d). “To
prove a RICO conspiracy, the government must establish (1) that two or more
people agreed to commit a substantive RICO offense and (2) that the defendant
knew of and agreed to the overall objective of the RICO offense.” Posada-Rios,
158 F.3d at 857−58. “The agreement, a defendant’s guilty knowledge and a
defendant’s participation in the conspiracy all may be inferred from the devel-
opment and collocation of circumstances.” Id. at 857. A co-conspirator needs
only to have known of, and agreed to, the overall objective of the RICO offense.
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                                  No. 16-30525
Salinas v. United States, 522 U.S. 52, 61−66 (1997).

      The substantive RICO provision prohibits “any person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate commerce or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern of rack-
eteering activity or collection of unlawful debt.” § 1962(c). The government
must prove that (1) such an enterprise existed; (2) the activities of the enter-
prise affected interstate or foreign commerce; (3) the defendant was “employed
by” or “associated with” the enterprise; (4) the defendant participated in the
conduct of the enterprise’s affairs; and (5) the participation was through “a
pattern of racketeering activity.” Posada-Rios, 158 F.3d at 855.

      The statute defines “enterprise” to include “any individual, partnership,
corporation, association, or other legal entity, and any union or group of indi-
viduals associated in fact although not a legal entity.” § 1961(4). RICO reaches
“a group of persons associated together for a common purpose of engaging in a
course of conduct.” United States v. Turkette, 452 U.S. 576, 583 (1981). To
establish the existence of an enterprise, the government must present “evi-
dence of an ongoing organization, formal or informal, and . . . that the various
associates function as a continuing unit.” Id. The term “enterprise” encom-
passes “an amoeba-like infra-structure that controls a secret criminal network”
as well as “a duly formed corporation that elects officers and holds annual
meetings.” United States v. Elliott, 571 F.2d 880, 898 (5th Cir. 1978). A jury
may “infer the existence of an enterprise on the basis of largely or wholly
circumstantial evidence.” Id.

      The government claims that ROD was an informal, association-in-fact
enterprise. “[T]he very concept of an association in fact is expansive,” but it
“must have at least three structural features: a purpose, relationships among

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                                    No. 16-30525
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, 944−46 (2009).

      The government points to the various crimes that appellants allegedly
committed as evidence of a “pattern of racketeering activity.” The term “rack-
eteering activity” encompasses a wide range of state and federal offenses,
including murder, robbery, extortion, and drug-dealing. § 1961(1). A “pattern
of racketeering activity” exists where an offender has committed at least two
acts of racketeering activity within ten years. § 1961(5).

      Appellants challenge this charge on three grounds. First, they claim that
ROD was not an enterprise.          Patterson describes ROD members as “lone
wol[ves]” and cites testimony denying that ROD members shared money,
drugs, or guns. 2 One former member testified that “Ride or Die is just a bunch
of young men who really like hanging out.”

      That is inaccurate. ROD had a clear purpose—selling drugs and pro-
tecting those drug sales and the group’s members—and its members were
associated with one another. Members used a house on Mandeville Street to
store guns and drugs and to prepare and package the drugs for resale, working
in shifts. The owner of the house testified that on at least one occasion, mem-
bers pooled their money to buy crack for resale. A former member testified
that members sold drugs at specific locations, that only members could sell
drugs in certain territories, and that members stashed guns for other members’
use. Members committed a large number of violent crimes alongside other
members. 3      The evidence, which included hours of testimony from law-


      2 Byron concedes that “there may have been pooling of resources, mutual access to
firearms, or protection of turf.”
      3   Appellants do not dispute that ROD had sufficient longevity to qualify as an
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                                  No. 16-30525
enforcement officers and former members, was sufficient for the jury to con-
clude that ROD fell within RICO’s expansive definition of “enterprise.”

       Second, appellants claim that several of the criminal acts they com-
mitted during ROD’s existence were unrelated to ROD and therefore were not
part of a pattern of racketeering activity. But appellants’ theories on this point
are conclusional. Byron notes only that “[t]he government . . . failed to estab-
lish through any competent evidence that [Byron’s criminal convictions] and
[the government’s] allegations are related to any common purpose other than
establishing the criminality of Byron Jones.” Patterson contends that one of
the traffic stops mentioned in the indictment was unrelated to ROD. No appel-
lant casts serious doubt on the government’s claim that appellants committed
at least two predicate acts in furtherance of a RICO conspiracy. The govern-
ment presented sufficient evidence that appellants engaged in a pattern of
racketeering activity.

       Finally, Byron suggests that even if the other appellants committed
crimes on behalf of ROD, he did not. He notes that to establish that ROD
members had a common purpose, the government relied heavily on testimony
about the house on Mandeville Street, which ROD controlled while Byron was
in prison. But the government also presented evidence that ROD behaved like
a gang long before it took over that house (at which time Byron was already an
ROD member): controlling territory, sharing resources, and engaging in vio-
lence to promote the organization’s interests.

Count 2 (Drug Distribution Conspiracy)
       Appellants challenge their convictions of conspiring to distribute con-
trolled substances. To establish a drug-trafficking conspiracy, the government


association in fact.
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must show “(1) the existence of an agreement between two or more persons to
violate narcotics laws, (2) knowledge of the conspiracy and intent to join it, and
(3) voluntary participation in the conspiracy.” United States v. Nieto, 721 F.3d
357, 367 (5th Cir. 2013). The government may prove an agreement by demon-
strating the coconspirators’ concert of action with respect to distribution of
drugs. 4

       The government presented sufficient evidence to establish that appel-
lants participated in a drug-trafficking conspiracy. Witnesses testified that
Byron and Patterson packaged drugs, sold drugs, and committed violent
crimes to defend and expand ROD’s drug-selling territory. The government
presented less evidence of Byron’s handling of drugs but showed that he com-
mitted crimes to support the conspiracy. For example, Byron’s alleged murder
of Travis Arnold allowed ROD to sell drugs in an area of Mandeville Street that
it could not previously reach.

Count 3 (Conspiracy to Possess Firearms)
       Appellants were convicted of conspiracy to possess firearms in further-
ance of either the RICO conspiracy charged in Count 1, the drug-trafficking
conspiracy charged in Count 2, or both, in violation of 18 U.S.C. § 924(o).
Patterson claims that he used guns for “personal protection” and notes that
none of the government’s witnesses testified that the witness saw Patterson
using a firearm in furtherance of a conspiracy. Similarly, Byron claims that
although he had guns, he did not use them in furtherance of a conspiracy.

       To the contrary, there was plenty of evidence tying appellants’ firearm
use to the charged conspiracies. For example, Patterson used a firearm in


       4  United States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007); see also United States v.
Inocencio, 40 F.3d 716, 725 (5th Cir. 1994) (“A conspiracy agreement may be tacit, and the
trier of fact may infer an agreement from circumstantial evidence.”).
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                                         No. 16-30525
connection with the shooting of Joseph and Coleman and that Byron used a
firearm in the murder of Travis Arnold. Sufficient evidence was presented to
convict appellants of both crimes, as discussed below. More generally, guns
were ubiquitous at ROD gatherings. A former member of ROD testified that
ROD had so many guns in the Eighth Ward that “[a]nywhere you went there
was a gun around.” Another former member testified that all male ROD
members used guns, which were necessary to the RICO and drug-trafficking
conspiracies. Without them, ROD would not have been able to defend and
expand its territory. The evidence supports the convictions on Count 3.

Counts 5–8 (Arnold/Rowel Shooting)
       In February 2010, someone in a car shot Arnold in the head and Isaac
Rowel in the shoulder while Arnold and Rowel were at a stoplight. Arnold died
from his injuries; Rowel survived. Rowel eventually identified Byron as the
driver and said that, just before the shots, he saw Byron “rocking back and
forth” and looking in his direction. Rowel also saw another person in Byron’s
car whom he was unable to identify. Arnold’s nephew, Darryl Arnold, testified
that Byron told him before the shooting that he was “going to kill Travis and
make you cry.” Then, after the shooting, Byron told Darryl that Byron was
“the new [B]east,” a reference to Travis’s nickname.

       On Count 5, the jury convicted Byron of “murder in aid of racketeering”—
that is, that he had murdered Arnold to benefit ROD, in violation of Louisiana’s
second-degree-murder statute, LA. REV. STAT. ANN. §§ 14:30.1(A)(1) and 24,
and the federal VICAR statute, 18 U.S.C. § 1959(a)(1) and (2). 5 Louisiana



       5Section 1959(a) provides that “[w]hoever . . . for the purpose of gaining entrance to
or maintaining or increasing position in an enterprise engaged in racketeering activity . . .
murders . . . any individual in violation of the laws of any State or the United States . . . shall
be punished. . . .”
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defines second-degree murder as killing with the specific intent to kill or inflict
great bodily harm. See LA. REV. STAT. ANN. § 14:30.1(A)(1). Louisiana classi-
fies as principals “[a]ll persons concerned in the commission of a crime,
whether present or absent, and whether they directly commit the act con-
stituting the offense, aid and abet in its commission, or directly or indirectly
counsel or procure another to commit the crime.” § 14:24. To establish that a
defendant has violated VICAR, the government must show that (1) an enter-
prise existed; (2) the enterprise engaged in, or its activities affected, interstate
commerce; (3) it was engaged in racketeering activity; (4) the defendant com-
mitted violent crimes; and (5) the defendant committed the violent crimes to
gain entrance to, or maintain or increase his position in, the enterprise. 6

      On Count 6, the jury convicted Byron of causing death through the use
of a firearm in violation of 18 U.S.C. § 924(j), which imposes additional penal-
ties on defendants who use a firearm to kill during the commission of a violent
or drug-trafficking crime. On Count 7, the jury convicted Byron of assault with
a dangerous weapon in aid of racketeering, in violation of Louisiana’s aggra-
vated-assault statute 7 and VICAR. On Count 8, the jury convicted Byron of
using a firearm in relation to a violent crime or a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). To establish a violation of § 924(c)(1)(A),
the government must show that the defendant (1) committed a violent crime
or trafficked drugs and (2) knowingly used or carried firearms during and in
relation to that crime. 8 The government claims that Byron discharged a gun
in furtherance of either the RICO conspiracy charged in Count 1 or the drug



      6   See PATTERN CRIM. JURY INSTR. 5TH CIR. 2.78 (2015).
      7 See LA. REV. STAT. ANN. § 14:37(A), defining aggravated assault as “an assault com-
mitted with a dangerous weapon.”
      8   See PATTERN CRIM. JURY INSTR. 5TH CIR. 2.44 (2015).
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                                    No. 16-30525
conspiracy charged in Count 2.

      Byron challenges those convictions on the ground of insufficient evidence
tying the alleged murder and assault to his supposed participation in a rack-
eteering enterprise. To the contrary, there is evidence, described above (in-
cluding Byron’s reference to Travis’s nickname “the Beast”), that Byron mur-
dered Arnold and assaulted Rowel in furtherance of the charged RICO and
drug conspiracies. 9

Counts 9–10 (Augustine Shooting)
      Ernest Augustine was shot five times while sitting in his truck. He
survived. Though he did not see who shot him, someone else did: Terrance
Paul testified that he was standing on his mother’s porch, across the street
from Augustine’s truck, when he saw Byron approach the truck and begin
shooting. A firearms expert testified that the spent bullets and casings were
fired from the gun that Byron discarded during a police stop two weeks after
the shooting. The jury convicted Byron of assault with a dangerous weapon in
aid of racketeering, in violation of Louisiana’s aggravated-assault statute and
VICAR (Count 9), and of discharging a firearm during and in relation to a crime
of violence or a drug-trafficking crime, in violation of § 924(c)(1)(A) (Count 10).

      Byron claims that the government failed to prove that he was the shooter
or that the shooting was related to his membership in ROD. Although there is
enough evidence for a jury to find, beyond a reasonable doubt, that Byron shot
Augustine, the evidence is insufficient as to how the shooting relates to Byron’s
membership in ROD or the charged conspiracies. Accordingly, we reverse
Byron’s convictions on Counts 9 and 10.



      9  The government charged Byron and Patterson under Counts 5, 6, 7, and 8, but the
jury found only Byron guilty.
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                                 No. 16-30525
Counts 13–14 (Rodney Coleman Murder)
      On January 6, 2011, Marquisa Coleman confronted Deloyd inside a
store. They got into a heated argument over whether Deloyd had murdered
Coleman’s son, Rodney. Coleman, along with Jimmy Joseph, left the store soon
thereafter and began walking home. When they were about a block away from
the store, they noticed that two people were following them. Then, someone
emerged from behind a truck and started shooting. Coleman got shot multiple
times and was badly injured; a bullet grazed Joseph’s head, but he was not
seriously hurt.

      Joseph implicated Patterson and Deloyd in the shooting. He testified
that he thought Patterson was the shooter because the shooter had a deformed
arm like Patterson’s. Joseph described Deloyd as “a director of some sort” and
testified that as he was lying on the ground after being shot, he heard Deloyd
say, “No, don’t shoot him. Shoot the bitch.”

      There were inconsistencies in both victims’ testimonies. Joseph was ini-
tially unable to identify the shooter but later told police that Patterson had
shot him, something that he repeated in his testimony. But at trial, he said
that he could not identify the shooter, adding that he “d[id]n’t even want to be
here today.” Coleman, who also testified that Patterson was the shooter, ini-
tially told the police that Deloyd had been the shooter. In connection with the
shooting, the jury convicted Patterson and Deloyd of assault with a dangerous
weapon in aid of racketeering, in violation of Louisiana’s aggravated-assault
statute and VICAR (Count 13), and of discharging a firearm during and in
relation to a crime of violence or a drug-trafficking crime, in violation of
§ 924(c)(1)(A) (Count 14).

      The government presented sufficient evidence that Deloyd and Patterson
committed the shooting. But, as with Counts 9 and 10, there is insufficient

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proof regarding the relationship between the shooting and ROD or the charged
conspiracies and thus a failure of proof on how the shooting was in “aid of
racketeering.” We reverse the convictions on Counts 13 and 14.

Counts 15–18 (Marquisa Coleman and Jimmy Joseph Shooting)
      On January 17, 2011, Victor Guy was walking with a friend when he was
approached by three assailants who were wearing scarves over their mouths.
One put a gun to Guy’s head, walked him to Devin Hutton’s apartment, and
told him to knock on the door. After Hutton opened the door, two of the
assailants rushed into Hutton’s apartment while the third stayed with Guy.
Guy heard one of the assailants yell, “Where’s it at? Where is the money?
Where’s the drugs?” Then Guy heard a gunshot and ran away. Guy was shot
eight times while trying to escape.

      The assailants also put a gun to Krystal Collier’s head after she stumbled
into the middle of the altercation. She identified Deloyd as the assailant who
put the gun to Guy’s head, stayed behind while the other two went into Hut-
ton’s apartment, and shot Guy as he was trying to escape. Though Collier did
not see what happened in the apartment, she did hear one of the men say,
“Fuck it. Just kill him. Tell Pooky the riders came through.” One of Hutton’s
friends, who was in his apartment when the assailants burst in, confirmed that
two men with guns came into the apartment and shot Hutton, who died of his
wounds. The jury convicted Deloyd of murder in aid of racketeering, in vio-
lation of Louisiana’s second-degree-murder statute and VICAR (Count 15);
causing death through the use of a firearm, in violation of § 924(j) (Count 16);
assault with a dangerous weapon in aid of racketeering, in violation of Louisi-
ana’s aggravated-assault statute and VICAR (Count 17); and discharging a
firearm during and in relation to a crime of violence or a drug-trafficking crime,
in violation of § 924(c)(1)(A) (Count 18).

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      Deloyd inaccurately claims that the government failed to establish a
connection between the alleged crimes and ROD. It is obvious that the murder
had something to do with ROD’s drug operations.            After all, according to
Collier’s testimony, the assailants asked Hutton about drugs and money before
shooting him on behalf of “the riders.”

Counts 19–20 (Blue Murder)
      On January 18, 2011, Corey Blue was murdered outside his house. His
cousin, Kevin Johnson, testified that he was at Blue’s house that night.
According to Johnson, Blue went outside after receiving a phone call. Before
long, Johnson heard gunshots and ran to the front door. As Johnson was cross-
ing the threshold, Patterson shot in his direction, though Johnson was not hit.
Johnson indicated that Patterson was accompanied by at least one other man,
who, along with Patterson, got into a car and drove away.

      Jamal Holmes testified that while he and Patterson were sharing a cell
at the parish jail, Patterson admitted to “put[ting] the work in on Corey Blue”
along with Deloyd and someone named Shelly. Holmes also testified that when
he told Deloyd, “Y’all shook up the Eighth Ward when y’all killed Blue,” Deloyd
responded, “Yeah, I punished him.”

      The owner of the house on Mandeville Street testified that the night Blue
was killed, Deloyd, Patterson, and some other ROD members were at the house
packaging drugs when they realized that their package was short. Deloyd,
Patterson, and an unidentified woman left for thirty minutes. When they
returned, Deloyd said that he had just “punished” someone. The owner, who
later heard from other ROD members that Deloyd and Patterson had killed
Blue, noticed that after they returned, Deloyd and Patterson put on new
T-shirts, and another ROD member cleaned their guns with bleach. The jury
convicted Patterson and Deloyd of murder in aid of racketeering, in violation
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                                  No. 16-30525
of Louisiana’s second-degree-murder statute and VICAR (Count 19), and of
causing death through the use of a firearm, in violation of § 924(j) (Count 20).

      Appellants question the reliability of the government’s witnesses and
claim that the prosecution has not shown that the murder was related to
appellants’ membership in ROD.         The evidence, however, including the
evidence that Deloyd “punished” Blue in relation to ROD’s drug trade, was
enough for a jury reasonably to conclude that Deloyd and Patterson murdered
Blue in furtherance of the RICO and/or drug conspiracies.

                                       III.
                                       A.
      Appellants objected to the introduction of certain recorded phone calls
made by inmates and authenticated by third parties. Government witnesses
identified all three appellants as among the speakers. The parties stipulated
that the recordings were of authentic Orleans Parish Prison inmate calls. But
appellants claim that the speakers were not properly identified, so the district
court erred by admitting the recordings. In addition, Patterson claims that
some of the recordings included hearsay or were otherwise inadmissible.

      We review evidentiary determinations, including the identification of
recorded speakers, for abuse of discretion. See United States v. Garza, 591 F.
App’x 259, 260 (5th Cir. 2015) (citing United States v. Girod, 646 F.3d 304, 318
(5th Cir. 2011)). “A trial court abuses its discretion when its ruling is based on
an erroneous view of the law or a clearly erroneous assessment of the evi-
dence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting
Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

      When a recording is at issue, a “witness’s familiarity with the voice
sought to be identified, whether the familiarity developed before or after the

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                                  No. 16-30525
time of the recording, is sufficient to ensure reliable voice identification.”
United States v. Biggins, 551 F.2d 64, 68 (5th Cir. 1977). A witness does not
need to have a close relationship with the speaker; “some familiarity” is suffi-
cient. United States v. Thomas, 690 F.3d 358, 372 (5th Cir. 2012) (quoting
United States v. Cuesta, 597 F.2d 903, 915 (5th Cir. 1979)). A law enforcement
agent may identify a voice with which he is familiar. United States v. Norman,
415 F.3d 466, 472 (5th Cir. 2005).

      The government relied on three witnesses to identify the speakers in the
recorded jail calls: former ROD members Andrealie Lewis and Erick Garrison,
and ATF Agent Jennifer Doreck. Lewis and Garrison explained that they rec-
ognized many of the voices in the recordings from personal experience, though
they were unable to identify every voice. Lewis also testified that she knew
that some of the calls were from Deloyd because the jail phone system iden-
tified him as the caller. Though Doreck was not personally familiar with the
speakers, she was able to identify their voices based on the folder numbers
assigned to the inmates making the calls, the phone numbers of call recipients,
the speakers’ self-identification or identification of other speakers, discussions
with government cooperators, and her knowledge of relevant events. She also
familiarized herself with appellants’ voices by listening to hundreds of their
phones calls; some she listened to repeatedly.

      Lewis, Garrison, and Doreck had foundation to identify the speakers in
the recordings. The law requires only that an identifying witness has some
familiarity with a speaker’s voice, Thomas, 690 F.3d at 372, something that
each of the identifying witnesses had. Lewis and Garrison knew the speakers
they identified personally. Doreck familiarized herself with the voices, as ex-
plained above. Patterson observes that the court denied his request to require
Doreck to identify each appellant’s voice from a blind recording. But he does

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                                        No. 16-30525
not cite any caselaw suggesting that the denial of a request to traverse a
witness is an abuse of discretion.

      Patterson’s other theories relating to the decision to admit the recordings
are no more convincing. He claims that some of his conversations were inad-
missible hearsay. But his statements during these calls were admissions of a
party opponent under Federal Rule of Evidence 801(d)(2)(A), and the other call
participants’ statements were admissible to provide context. See United States
v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997).

      Patterson claims that a conversation he had with an associate, which the
court admitted, was irrelevant because it involved his attendance at an anger-
management class. In the conversation, Patterson says that he would be risk-
ing his life by going to an anger-management class and that, before he went to
prison, he “had to stash” something. The conversation is hard to follow but
sheds some light on Patterson’s criminal activities and is therefore relevant.

      Finally, Patterson claims that the court erred by allowing Doreck to
testify about the content of some of the recordings, which allowed her “to get
in additional testimony that prejudiced the Defendants and imply they were
admitting to crimes for which they were on trial.” But that testimony was
elicited by defense counsel during cross-examination. The district court did
not plainly err by admitting it.

                                               B.
      The government introduced evidence of appellants’ convictions, includ-
ing some that occurred before they turned eighteen. The government claimed
that the convictions were admissible as evidence that appellants had engaged
in racketeering activity. 10 The government also called a police officer to testify


      10   See United States v. Erwin, 793 F.2d 656, 670 (5th Cir. 1986) (“In a subsequent trial
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                                     No. 16-30525
about a traffic stop at which the officer found crack cocaine on Patterson when
Patterson was a juvenile; a second officer to testify that she found a firearm on
Byron during a traffic stop when Byron was a juvenile; and a third officer to
testify about another traffic stop involving a then-underage member of ROD
(though not one of the appellants). Patterson claims that the court should have
instructed the jury that it could not consider events that took place when
appellants were minors.

      Both sides agree that this issue is subject to plain-error review. “To
demonstrate plain error, an appellant must show (1) a forfeited error, (2) that
is clear or obvious, and (3) that affects the appellant’s substantial rights.”
United States v. Moreno, 857 F.3d 723, 727 (5th Cir. 2017) (brackets and
internal quotation marks omitted). Even then, the court may correct the error
“only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)).

      The court did not plainly error by admitting the evidence of juvenile
misconduct, because any error was not clear or obvious, meaning settled by
“the time of appellate review.” See Henderson v. United States, 568 U.S. 266,
268 (2013). As Patterson acknowledges, we have never determined whether a
court is required to instruct the jury to disregard evidence of a defendant’s
juvenile misconduct. In United States v. Harris, 740 F.3d 956, 966 (5th Cir.
2014), we declined to settle the issue and noted that the other circuits are split.
To the extent any error occurred, it could not have been “plain.” Id.




for RICO, the government may count, as a predicate offense, a defendant's prior conviction
for an offense falling within the definition of ‘racketeering activity.’”).
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                                 No. 16-30525
                                       C.
      In the middle of trial, appellants were brought to a holding cell in the
courthouse. Witnesses Sean Watts and Darryl Arnold were in a nearby holding
cell; both had already testified. According to the government, Deloyd shot
Watts in 2009, but in his testimony, Watts said that he could not identify his
shooter. Arnold proved more helpful to the government’s case, going so far as
to accuse Patterson and Byron of killing his uncle, Travis Arnold.

      Meanwhile, according to Jamal Holmes, who was sitting in a cell in
another room, appellants soon began talking to Watts and Arnold. Holmes
says that he heard the conversation through air vents and recognized Deloyd’s
and Patterson’s voices. Holmes says that appellants praised Watts and criti-
cized Arnold. Allegedly, Deloyd told Watts, “[Y]ou kept it real” and “God bless
you” and Watts responded, ‘I ain’t going to help the government sink you.
I ain’t helping them sink y’all boys.” Then, according to Holmes, appellants
repeatedly called Arnold a “rat” and accused him of not “keep[ing] it real.”
Apparently, other witnesses who had not yet testified were nearby and could
hear appellants’ comments. The government claims that the comments to
Arnold were threats meant to intimidate Arnold and the other witnesses.

      The government sought to introduce Holmes’s testimony on the grounds
that the statements were relevant, highly probative, and indicative of appel-
lants’ knowledge, intent, and consciousness of guilt. In admitting the testi-
mony over appellants’ objections, the district court did not abuse its discretion
by admitting the testimony.

      Although we review evidentiary determinations for abuse of discretion,
a heightened standard applies where, as here, the evidence is admitted under
Federal Rule of Evidence 404(b). United States v. Wallace, 759 F.3d 486, 493
(5th Cir. 2014). Under Rule 404(b), evidence relating to a defendant’s alleged

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                                        No. 16-30525
prior bad act is not admissible to show that he has bad character but is admis-
sible for other purposes. Evidence of a prior bad act is admissible if (1) it “is
relevant to an issue other than the defendant’s character” and (2) its probative
value “is not substantially outweighed by its undue prejudice” and admitting
the evidence is otherwise consistent with Federal Rule of Evidence 403. United
States v. Beechum, 582 F.3d 898, 911 (5th Cir. 1978) (en banc).

       Appellants contend that the risk of unfair prejudice from Holmes’s testi-
mony substantially outweighed whatever probative value it may have had.
They claim that the testimony was not very probative because it had no bearing
on the underlying charges and occurred two years after the charged crimes,
and they note that evidence of threats or intimidation could have colored the
jury’s view of the appellants.

       We disagree. The alleged statements were probative insofar as they
tended to establish appellants’ knowledge, intent, and consciousness of guilt.
Though the testimony was prejudicial, the court’s conclusion that the danger
of unfair prejudice did not substantially outweigh the evidence’s probative
value was reasonable. Evidence of witness intimidation may be admissible. 11
Moreover, “[i]n reviewing the balancing undertaken by the district court, we
give great deference to the court’s informed judgment and will reverse only
after a clear showing of prejudicial abuse of discretion.” Rocha, 916 F.2d
at 241. Appellants have not made such a showing. 12




       11 See, e.g., United States v. Mosley, 206 F. App’x 365, 366 (5th Cir. 2006) (per curiam);
United States v. Sandoval, 1995 WL 337738, at *3 (5th Cir. 1995) (unpublished); United
States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990).
       12 At the very least, the testimony was relevant to appellants’ consciousness of guilt.
Rocha, 916 F.2d at 241 (“Evidence of a threat by a defendant respecting a specific adverse
witness indicates that the defendant was conscious of the weakness of his case; such evidence
creates a compelling inference that the defendant’s case lacks merit.”).
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                                  No. 16-30525
      Patterson claims that Holmes’s testimony was based on a false premise:
that appellants had threatened Darryl Arnold. Though appellants repeatedly
called Arnold a “rat,” Patterson suggests that those statements were non-
threatening. Appellants’ statements to Arnold could be understood as innocent
criticism rather than as threats. But given that a trial court’s assessment of
the evidence must be “clearly erroneous” to constitute an abuse of discretion,
the district court’s characterization of appellants’ statements did not amount
to an abuse of discretion. Ragsdale, 426 F.3d at 774.

      Appellants question the factual basis for Holmes’s testimony. They note
that no other witnesses were able to verify Holmes’s version of events, leaving
the jury with nothing to go on except Holmes’s word. But extrinsic-offense
evidence is admissible so long as “there is sufficient evidence for the jury to
find that the defendant in fact committed the extrinsic offense.” Beechum,
582 F.2d at 913. Appellants cite no cases suggesting that a witness’s testimony
about an extrinsic offense is insufficient to establish that the offense occurred.

                                       D.
      In February 2011, Byron pleaded guilty to a state charge of second-
degree murder, as an accessory after the fact, in connection with the killing of
Travis Arnold. Federal prosecutors then charged Byron as a principal in the
murder of Arnold (Count 5) and the assault of Rowel (Count 7). Byron re-
quested a jury instruction explaining the meaning of “accessory after the fact”
or “parties to a crime” to ensure that the jurors did not take his state court,
accessory-after-the-fact guilty plea as evidence of his principal liability. The
court did not provide such an instruction, and the jury convicted Byron on both
counts.

      Byron says that the lack of a proper instruction left jurors confused about
the mental state necessary for a conviction. For support, he points to the jury’s
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                                  No. 16-30525
multiple requests for clarification. He cites no caselaw.

      In denying Byron’s motion for new trial, the court conceded that its fail-
ure to give the “accessory after the fact” instruction was error but asserted that
any error was harmless because attorneys on both sides “repeatedly explained
to the jury the distinction between Byron’s state-court, accessory-after-the-fact
guilty plea and the fact that Byron was charged with being a principal under
Louisiana law in the federal crimes for which he was on trial.” Byron claims
that the attorneys’ comments during trial did not cure the prejudice created by
the improper instruction.

      In general, we review a district court’s refusal to provide a requested
instruction for abuse of discretion. See United States v. Sheridan, 838 F.3d
671, 672 (5th Cir. 2016). We consider whether the requested instruction “(1) is
substantively correct; (2) is not substantially covered in the charge given to the
jury; and (3) concerns an important point in the trial so that the failure to give
it seriously impairs the defendant’s ability to present effectively a particular
defense.” Id. at 673 (quoting United States v. Simkanin, 420 F.3d 397, 410 (5th
Cir. 2005)). We “may reverse only if the defendant was improperly denied the
chance to convey his case to the jury.” United States v. Hunt, 794 F.2d 1095,
1097 (5th Cir. 1986).

      The government concedes that Byron’s requested “accessory after the
fact” instruction was “a correct statement of Louisiana law and was not covered
by the Court’s instructions to the jury.” The question is whether the refusal to
give it “seriously impair[ed]” Byron’s ability to present a defense to Counts 5
and 7.

      It did not. At trial, both sides discussed, at some length, the distinction
between an “accessory after the fact” and a “principal,” with both referencing
that distinction in their closing arguments. As the district court found, the
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                                        No. 16-30525
jury was “well aware of the significance and meaning of Byron’s guilty plea to
that offense in state court and how being an accessory after the fact is different
from being a principal.”

                                              E.
      Deloyd was convicted of the murder of Devin Hutton (Count 15) and the
murder of Corey Blue (Count 19). 13 Both convictions are for “murder in aid of
racketeering,” which means Deloyd was convicted under state as well as fed-
eral law: Louisiana’s second-degree murder statute 14 and federal criminal
statutes, including 18 U.S.C. § 924(j), which imposes harsh penalties on
offenders convicted of committing murder with a firearm during the course of
a RICO or drug-trafficking conspiracy. The Presentence Report (“PSR”) calcu-
lated Deloyd’s sentence in reference to the first-degree-murder guideline in
U.S. Sentencing Guidelines (“U.S.S.G.”) § 2A1.1. The district court adopted
the PSR’s calculations.

      Deloyd claims that the court instead should have applied Section 2A1.2,
which would have resulted in a shorter sentence. He notes that the guidelines
provide that sentences for § 924(j) convictions should be calculated under
either Section 2A1.1 (for first-degree murder) or Section 2A1.2 (for second-
degree murder). See U.S.S.G. App. A (Statutory Index). Neither the PSR nor
the court explained why it chose Section 2A1.1, not Section 2A1.2. Because
Deloyd did not raise the issue in the district court, we engage in plain-error
review. Puckett, 556 U.S. at 135.

      The district court correctly applied the first-degree-murder guideline.
Although Deloyd was convicted of second-degree murder under Louisiana law,



      13   Patterson was also convicted of murdering Blue.
      14   See LA. REV. STAT. ANN. § 14:30.1(A)(1).
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                                  No. 16-30525
“first degree murder is the federal crime most analogous to the Louisiana
second degree murder statute.” United States v. Tolliver, 61 F.3d 1189, 1221
(5th Cir. 1995), vacated on other grounds sub nom. Moore v. United States,
519 U.S. 802 (1996). Federal law classifies a broad range of murders as “first
degree,” including “any . . . kind of willful, deliberate, malicious, and pre-
meditated killing.” 18 U.S.C. § 1111. In contrast, Louisiana’s first-degree-
murder statute applies only to certain facts. For example, it applies to an
offender who has committed felony murder, murdered a police officer, fire-
fighter, young child, or elderly person, or murdered multiple persons. See LA.
REV. STAT. ANN. § 14:30.

      Louisiana’s second-degree-murder statute is much broader. It applies
when an offender has killed a person and had the specific intent to kill or inflict
great bodily harm. Id. § 14:30.1(A)(1). This encompasses murders that, under
federal law, are classified as “first degree.” Thus, it was not a clear or obvious
error to apply the first-degree murder guideline.

      For the reasons stated, the judgment is AFFIRMED except with respect
to the sufficiency of evidence as to Counts 9, 10, 13, and 14, on which we
REVERSE and direct a judgment of acquittal. This matter is REMANDED for
resentencing as appropriate.




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