United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 13-1894
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

  Dominic Henley, also known as Bishop

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 13-1935
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

  James C. Smith, also known as Animal

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 13-1941
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee
                            v.

                      Jerry Elkins

        lllllllllllllllllllll Defendant - Appellant
           ___________________________

                  No. 13-1967
          ___________________________

               United States of America

         lllllllllllllllllllll Plaintiff - Appellee

                            v.

Marshall Fry, also known as Bo, also known as Big Bo

        lllllllllllllllllllll Defendant - Appellant
           ___________________________

                  No. 13-1969
          ___________________________

               United States of America

         lllllllllllllllllllll Plaintiff - Appellee

                            v.

      Anthony Robinson, also known as Blade

        lllllllllllllllllllll Defendant - Appellant




                            -2-
                        ___________________________

                                No. 13-1971
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Jerry Peteet

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: June 11, 2014
                             Filed: September 10, 2014
                                  ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

MURPHY, Circuit Judge.

       Defendants Dominic Henley, James C. Smith, Jerry Elkins, Marshall Fry,
Anthony Robinson, and Jerry Peteet were charged with racketeering conspiracy, and
various counts of violent crime in aid of racketeering in connection with their
involvement with the Wheels of Soul, an outlaw motorcycle gang. Each man pled not
guilty. As the case proceeded to trial, a number of the defendants filed motions to
suppress evidence obtained through electronic surveillance during a lengthy


                                           -3-
government investigation. After evidentiary hearings, a magistrate judge1 issued a
report and recommendation denying the motions, which was adopted by the district
court.2 At the thirty five day jury trial over sixty witnesses testified. The government
sought to prove that the defendants had conspired to murder members of rival
motorcycle clubs. During trial the district court denied various evidentiary motions
and motions for judgments of acquittal. After eight days of deliberation the jury
returned guilty verdicts on the racketeering conspiracy charges for each defendant,
and on many of the substantive charges, and the defendants appeal. We affirm.

                                           I.

                                          A.

       Near the end of 2008 Andria Van Mierlo, a St. Louis County police officer and
member of an FBI task force, sought information about a St. Louis motorcycle club
known as the Sin City Disciples (alternatively "Desciples" or "Deciples"). A defense
lawyer who learned of her interest in the organization introduced her to Matthew
Hunter, one of his clients. Hunter had been charged with evading arrest after he
attempted to flee from the police on a motorcycle. While he was not a member of the
Sin City Disciples, he was familiar with the group through some acquaintances.
Officer Van Mierlo met with him and offered to pay him to serve as an informant in
the government's investigation of the Disciples. He agreed after some deliberation.
At the direction of officer Van Mierlo, Matthew Hunter joined the St. Louis chapter
of the Sin City Titans, a group affiliated with the Disciples.


      1
        The Honorable Frederick R. Buckles, United States Magistrate Judge for the
Eastern District of Missouri.
      2
        The Honorable Catherine D. Perry, Chief United States District Judge for the
Eastern District of Missouri.

                                          -4-
       In early 2009 a dispute arose in the national Sin City organization and five St.
Louis members of the motorcycle club, including Matthew Hunter, left it and formed
a St. Louis chapter of a rival group called the Wheels of Soul. The Wheels of Soul
is a longstanding "outlaw motorcycle club" with headquarters in Philadelphia,
Pennsylvania and chapters throughout the country. Its members explained at trial that
as an "outlaw" club, they "live[d] beyond the law" and sought to assert control over
other motorcycle clubs within the same geographic area.

       The Wheels of Soul has a national structure organized around regional and
local chapters. The newly formed St. Louis chapter became a part of the Midwest
region, which included chapters in Illinois, Indiana, Michigan, Minnesota, Ohio, and
Wisconsin. Each local chapter of the Wheels of Soul held regular meetings in
addition to occasional regional and national meetings. Some chapters also maintained
a local clubhouse. Individual members were expected to pay monthly dues which
covered local expenses and also supported the "mother chapter" or national office.

       The Wheels of Soul had a written constitution that provided for the election of
national officers, including a president, vice president, sergeant at arms, secretary,
and treasurer. Similar positions existed at the local and regional level. Local and
regional presidents were responsible for leading meetings, determining dues and
fines, and communicating with the "mother chapter" in Philadelphia. The sergeant
at arms was responsible for protecting the chapter president, keeping order at
meetings, securing the group's clubhouse space, and "mak[ing] sure out in public that
the chapter members were safe." The treasurer was responsible for managing dues,
and the secretary kept notes at meetings. Some chapters also had a business manager
who was responsible for organizing parties to raise funds.

      The Wheels of Soul constitution specified that the object of the organization
was "to inform, to ride motorcycles, and to advance the interest of [its] members."



                                         -5-
The national leadership emphasized secrecy and loyalty, stating that "Wheels of Soul
business is not spoken outside Wheels of Soul membership," and reminding its
members that people involved with other motorcycle clubs should be considered
"your enemy." Officers could discipline members for violations of the organization's
internal rules and customs, such as insubordination or absence at required meetings
or events. Members could also be disciplined for failure to support each other in
dangerous situations. At one meeting the national vice president, defendant James
C. Smith, alluded to the consequences of failing to provide support by stating, "[w]e
will bleed for you, we will die for you, but I can tell you point blank . . . [i]f I'm out
there and I got a motherfucking situation and you leave me, you better hope to God
that I don't survive."

       Members of the Wheels of Soul distinguished themselves from rival outlaw
clubs such as the Sin City Disciples, Hell's Lovers, and Outkasts by wearing vests
embellished with identifying patches. These were referred to as the club's "colors,"
and such patches carried special significance in the motorcycle club community. For
example, a "bottom rocker" patch identified a specific geographic territory and a
"diamond" or "one percent" patch showed that the group was an outlaw club at "the
top of the food chain." Such patches could only be worn by the outlaw club in
control of the relevant area and by members who met certain qualifications.
Breaching these rules could have consequences. For example, wearing a "bottom
rocker" without the permission of the leading "outlaw club" in the state was
considered a sign of disrespect. Disputes over the wearing of these patches often
resulted in physical violence.

       The government's investigation of the Wheels of Soul spanned several years,
and Matthew Hunter's cooperation was central to it. As part of his agreement with
officer Van Mierlo, Matthew Hunter agreed to wear concealed electronic devices that
could surreptitiously record his conversations with other individuals and to the



                                           -6-
monitoring and recording of his telephone conversations. These recordings were
downloaded and maintained by FBI personnel over the course of the investigation.
During the course of his cooperation Matthew Hunter also participated in several
controlled purchases of weapons and drugs, purchases which were monitored and
recorded by FBI personnel.

       As the investigation progressed, the government also sought to intercept the
phone calls of the Midwest regional president, Allan Hunter.3 On January 10, 2011,
Judge Henry E. Autrey of the Eastern District of Missouri authorized the government
to place a wiretap on a cellphone used by Allan Hunter. Judges Audrey G. Fleissig
and E. Richard Webber of the Eastern District of Missouri also issued orders
authorizing the continued interception of calls (orders entered February 9, 2011 and
March 10, 2011). These interceptions ceased on Friday, April 8, 2011, and Judge
Jean C. Hamilton sealed the wiretap on Thursday, April 14, 2011.

      The government's investigation led to an indictment on June 9, 2011 charging
eighteen defendants. A superseding indictment was returned on June 21, 2012
against eleven defendants (after some of the original defendants pled guilty and
several others were added). Among the defendants named in the superseding
indictment were: James C. Smith, the national vice president; Dominic Henley, the
president of the St. Louis chapter; Jerry Elkins, the president of the Denver chapter;
Marshall Fry, a member of the Denver chapter; Anthony Robinson, the sergeant at
arms of the Chicago chapter; and Jerry Peteet, the president of the Indiana chapter.
The superseding indictment charged seventeen counts including racketeering
conspiracy and other offenses which allegedly demonstrated a "pattern of
racketeering activity," including murder, attempted murder, robbery, and conspiracy
to commit murder.


      3
          Allan Hunter and informant Matthew Hunter are not related.

                                         -7-
       Before trial defendants Henley, Smith, Elkins, and Robinson each filed a
motion to suppress the contents of the electronic surveillance, including but not
limited to conversations obtained through the judicially authorized wiretap of the
cellphone used by Allan Hunter. The magistrate judge held a hearing on these
motions on April 5, 2012, and issued a report and recommendation denying each of
them on September 28, 2012. After reviewing the briefs, the transcript of the hearing,
the original wiretap applications, and the defendants' objections, the district court
adopted the magistrate judge's report and recommendation and denied the motions to
suppress. In addition to ruling on many other pretrial motions, the district court
denied defendant Smith's motion to sever his case and defendant Robinson's motion
in limine to exclude evidence of an uncharged murder in November 2009. The
district court also granted the government's motion in limine to exclude an affidavit
from a man named Barry Rogers, which defendant Peteet wanted to admit in lieu of
Rogers' live testimony.

      The case proceeded to trial on October 15, 2012. Over the course of the thirty
five day trial the government presented evidence of numerous acts of violence
involving the defendants. Incidents relevant to this appeal are described in the next
sections.

                                         B.

        On May 28, 2009, a Sin City Disciples member named Robert Taylor was shot
in the buttocks in the parking lot of a Bennigan's restaurant in Gary, Indiana. Taylor
testified at trial that he had been shot by defendant Jerry Peteet, a former member of
the East Chicago chapter of the Sin City Disciples who had joined the Wheels of Soul
in early 2008. At the time of the Bennigan's incident Peteet was the president of the
Wheels of Soul chapter in Indiana.




                                         -8-
       According to Taylor's account, he was at Bennigan's picking up some food
when Peteet arrived with several people who were wearing the Wheels of Soul colors.
A fight broke out over an unpaid debt between Taylor and one of these men, and
Taylor tried to leave. Taylor testified that he was followed to the parking lot, where
the disagreement continued. During this argument Peteet walked up to Taylor,
"pistol-whipped" him in the head, pointed two guns at his chest, and stated "I will kill
you right here." Taylor stated at trial that as he turned to walk towards his friend's
car, Peteet fired twice, causing his injury.

       In addition to Taylor's testimony, the government introduced a 911 call made
by Taylor to report the shooting and naming "Jerry Peteet" as the shooter. Peteet
confirmed at trial that he had pointed two guns at Taylor while in the parking lot, but
stated that another Wheels of Soul member had been the shooter. The government
introduced the contrary testimony of a Bennigan's security guard who had witnessed
the incident and later identified Peteet as the shooter in a photographic lineup. There
was also a positive identification by Taylor's friend who had witnessed the shooting
from a nearby car. Matthew Hunter testified that after the Bennigan's incident in
Gary, "issues" between Sin City and the Wheels of Soul "filtered down to St. Louis."
Another witness testified that after the shooting the Wheels of Soul "was supposed
to be at war" with the Sin City organization.

                                          C.

       On August 10, 2009, two members of a motorcycle club known as the STL
Riders had their colors stolen at gunpoint at a bar in St. Louis. The government
introduced evidence that defendant Dominic Henley, president of the St. Louis
chapter of the Wheels of Soul, held a chapter meeting earlier that day at which he
instructed members to assert their dominance over other motorcycle clubs in the city.
Henley admitted at trial that he had told members at the meeting that "[i]f we tell



                                          -9-
somebody to do something, we have to back it up, whatever we're ordering them to
do." Following the meeting Henley, informant Matthew Hunter, and several other
Wheels of Soul members went to a local bar where they encountered Joshua and
Constance Polk who were wearing the colors of the STL Riders. According to
Matthew Hunter, Henley instructed the Wheels of Soul members to take off the Polks'
colors because the STL Riders did not have permission to wear them. The group
confronted the couple who attempted to retreat. A Wheels of Soul member then
threatened them with a .38 caliber revolver, and the Polks surrendered their vests.

           In addition to the Polks' testimony about the events that night, the
government introduced evidence from a police report in which the couple had
provided a license plate number for a Harley Davidson motorcycle they thought was
connected to one of the Wheels of Soul members involved. The license plate the
Polks provided was "AVCGK"; Henley owned a motorcycle with the license plate
"AV6GK." The Polks separately viewed photographic lineups shortly after the
incident, and both identified Henley. Later the Polks also identified Henley in an in
person lineup. In addition Matthew Hunter had immediately reported the incident to
officer Van Mierlo, informing her that he had possession of one of the seized vests.

                                         D.

      On November 1, 2009 an off duty correctional officer was murdered outside
a Chicago nightclub. While no one was ever charged with the murder, the
government introduced evidence at trial that defendant Anthony Robinson, sergeant
at arms of the Chicago chapter, had shot the officer from the backseat of a moving
car. Allen Hunter testified that he had attended a party that night with Robinson and
other Wheels of Soul members. He reported that at the party a friend of the Wheels
of Soul members had gotten into a fight with a member of the Brothers Keepers
organization. After the party Myron Farris, at that time the Midwest regional



                                        -10-
president for the Wheels of Soul, went to his garage and retrieved a shotgun which
he gave to Robinson. According to Allan Hunter's testimony the group then split into
four cars and went searching for members of the Brothers Keepers. Robinson rode
in the back seat of Hunter's car. When he spotted a man approaching a nightclub who
was wearing a Brothers Keepers vest, he instructed Hunter to pull away while he fired
the shotgun out the window. Robinson told Hunter as they drove away that his shot
had hit the man.

       While Allan Hunter's trial testimony was the government's primary evidence
about this shooting, the government also introduced recordings of several phone calls
between Robinson, a woman named "Rain," and Allan Hunter made while Robinson
was incarcerated at the Cook County Jail in Chicago. In these calls Robinson warned
the others that he had been questioned by the government about the shooting and
urged them to "get the fuck rid" of anything "that can tie us to anything."

                                          E.

       On January 2, 2011, both a member of the Street Soldiers outlaw motorcycle
club and a member of the Wheels of Soul were shot and killed at a clubhouse in
Chicago. The government introduced evidence that defendant Robinson was one of
the shooters. A man named Charles Ervin testified at trial that he went to the Chicago
clubhouse that night wearing his Street Soldiers colors, which bore a "bottom rocker"
reading "Illinois." Members of the Wheels of Soul, including defendant Robinson,
saw Ervin at the clubhouse and called regional president Allan Hunter to ask whether
they should take action to remove his colors. Allan Hunter testified that a few months
earlier he had attended several meetings with the leadership of the Street Soldiers to
discuss that organization's entrance into Chicago and their right to wear an "Illinois"
bottom rocker. Since these discussions had ended without a resolution, Allan Hunter
told Robinson that he would "take care of it later."



                                         -11-
       Ervin and his friend Carl Davis testified, however, that later that evening
Robinson and other Wheels of Soul members had surrounded them, displayed
weapons, and demanded Ervin remove his colors. The confrontation quickly
escalated into a gunfight, during which two individuals were shot. Ervin testified that
he was carrying a .45 caliber Glock at the time, that he fired it, and later discarded it
in an alleyway. The police recovered the weapon that night in a vacant lot next to the
Chicago clubhouse, as well as a number of .45 shell casings found on the floor inside.
At trial the government also introduced .40 shell casings recovered from the body of
one of the victims and the floor of the scene, a .40 caliber Smith and Wesson handgun
that matched those bullets, and video footage of defendant Robinson selling this
handgun to informant Matthew Hunter six days after the incident. Two witnesses
corroborated Ervin's account at trial, both stating that they saw a group of four or five
people surround a man sitting at the bar and that some of them were wearing Wheels
of Soul colors. One of the witnesses also overheard the group use the word "rocker"
shortly before shots were fired.

      On January 17, 2011, the Wheels of Soul convened a national meeting in
Philadelphia. Defendant Smith presided over the meeting, at which he told the
chapter presidents that the Wheels of Soul was in "a full-on war" with the Street
Soldiers and Outcast motorcycle clubs. A former president of the Wisconsin chapter
of the Wheels of Soul, Walter Lee, testified that the shooting on January 2 was
discussed at the meeting and that he understood that that shooting had caused the war
with the Street Soldiers.

                                           F.

      On January 29, 2011, defendants Fry and Henley, along with other members
of the Wheels of Soul, attended a "Black New Years" party in St. Louis. The
government introduced evidence at trial of a Wheels of Soul plan to shoot members



                                          -12-
of the Outcast motorcycle club attending this party. Included in this evidence were
recordings of conversations between defendant Elkins, who was the Denver chapter
president at the time, and regional president Allan Hunter. These conversations
indicated that Elkins was sending a couple members of the Denver chapter to St.
Louis to attend the party and "take care of business." Allan Hunter later testified that
the plan was to shoot members of Outcast at the party since there was a "war"
between the two clubs. Numerous intercepted communications reveal Elkins
unsuccessfully trying to convince informant Matthew Hunter to attend the New Years
party. Elkins also asked regional president Allan Hunter who was available to attend
and had access to weapons.

        Ultimately Wheels of Soul members Jamal Brandon, Walter Lee, and
defendants Henley and Fry attended the Black New Years party. Lee and Allan
Hunter were in contact much of the night; the government introduced a recording in
which Hunter asked Lee if he was "prepared." Lee later testified that he understood
this to be a question about whether he was armed. Lee also contacted Allan Hunter
that evening to report that defendant Henley was intoxicated. Hunter responded by
calling Henley and telling him to leave the party, but Henley refused, stating that he
had "talked to [Elkins]." When the Outcast members left the party that night, Fry sent
a text message to Lee which indicated that he needed to get ready to "carry out the
mission." Lee stated at trial that while he had not come to the party to participate in
a hit, he felt at the time that he had to participate for fear that otherwise he would "get
[his] ass stomped" at the next Wheels of Soul meeting. Lee testified that he then went
with Fry, Brandon, and Henley to retrieve guns from their truck and that Henley said
"[g]ive me a gun. I'll do it." When the group heard that Outcast had "disappeared,"
the plan was abandoned.

      In a call recorded later that night, Elkins told Allan Hunter that "my peoples
kinda pissed off right now" because Henley was intoxicated and needed "babysitting."



                                           -13-
Allan Hunter told Lee over the phone that Henley "fucked it up for us," and Lee
replied that he "was sittin' in there to snuff me a motherfucker out and if they'd a
showed up, that's exactly what the fuck was fittin' to happen." The government also
presented evidence of two phone calls the following month between Allan Hunter and
national vice president Smith in which Hunter asked Smith if he had heard about what
happened in St. Louis and reassured him that "I'm gonna deal with that next week, as
far as the motherfucker that fucked it up." Hunter assured Smith that "I'm still tryin'
to, you know, dig up . . . some power moves," and Smith replied "[a]lright bro, sounds
good."

                                          G.

       On March 6, 2011 at a Midwest regional meeting in Marion, Ohio, Allan
Hunter instructed other Wheels of Soul members to beat a fellow member as
punishment for failing to participate in a fight. Later that evening a man was shot to
death and another was grievously injured outside the Wheels of Soul Ohio clubhouse.

        The government's evidence indicated that several fights broke out at the
Wheels of Soul clubhouse between "civilians" who were invited to a party that
evening and members of the Wheels of Soul club. One civilian testified at trial that
he was beaten so severely at the party that he suffered a crushed eye socket, five
broken ribs, and a broken bone in his back. Several witnesses testified that during the
melee they heard multiple gunshots from the front of the clubhouse. Allan Hunter
testified that after he heard the first round of gunshots he moved towards the front of
the building. From there he saw Robinson and another man both firing guns out the
front door. Informant Matthew Hunter was also at the party and testified that after
he heard the first gunshots, he moved to an area at the front of the clubhouse where
he saw Robinson start shooting out the front door. After this shooting Matthew
Hunter tried to exit the clubhouse through the front door, but he testified that his way



                                         -14-
was blocked by what appeared to be a dead body. Allan Hunter testified that later
that night he saw Robinson wipe a gun he had with him, place it in a Taco Bell bag,
and leave with it before returning without the package. Allan Hunter testified that he
reported this incident to vice president Smith.

       The police responded to the scene, where they found the two victims. They
also found numerous bullet casings both outside and inside the front vestibule of the
clubhouse, but no signs that shots had been fired towards the house from outside.
The coroner found a bullet in the deceased victim's body and determined that the path
of the bullet was consistent with a person having been shot in the back while running
away. Later that month, road crew workers found a 9 millimeter Smith and Wesson
bearing the serial number THB4479 in a storm drain. The police determined that the
gun was a match for the 9 millimeter casings recovered from the clubhouse floor and
the bullet recovered from the victim's body. In a later search of Robinson's
apartment, police found a firearm magazine with the serial number THB4479 etched
on the side.

                                         H.

       At the conclusion of the government's case in chief, the defendants each moved
for a judgment of acquittal. Their motions were denied. The defendants renewed
these motions at the close of all the evidence, but these were also denied. After
deliberating for nearly eight days, the jury returned guilty verdicts against each
defendant but acquitted individual defendants of some charges. Defendants Henley,
Smith, and Robinson filed post verdict motions for judgments of acquittal which were
denied. Appellants were convicted and sentenced as shown in the following chart:




                                        -15-
         Defendant            Convictions (acquittals in parentheses)             Sentence
 Dominic Henley (President    1) Racketeering conspiracy                   204 months
 of the St. Louis chapter)    2) Violent crime in aid of racketeering—
                              conspiracy to commit murder
                              (acquitted on two counts: murder and
                              discharge of a firearm)
 James C. Smith (National     1) Racketeering conspiracy                   120 months
 Vice President)
 Jerry Elkins (President of   1) Racketeering conspiracy                   210 months
 the Denver chapter)          2) Violent crime in aid of racketeering—
                              conspiracy to commit murder

 Marshall Fry (Member of      1) Racketeering conspiracy                   188 months
 the Denver chapter)          2) Violent crime in aid of racketeering—
                              conspiracy to commit murder
                              (acquitted on one count: murder)
 Anthony Robinson             1) Racketeering conspiracy                   Life without the
 (Sergeant at Arms of the     2) Violent crime in aid of racketeering—     possibility of parole
 Chicago chapter)             murder
                              3) Violent crime in aid of racketeering—
                              murder
                              4) Violent crime in aid of racketeering—
                              attempt to commit murder
                              5) Tampering
                              (acquitted on one count: attempted murder)
 Jerry Peteet (President of   1) Racketeering conspiracy                   276 months
 the Gary chapter)            2) Violent crime in aid of racketeering—
                              attempt to commit murder
                              (acquitted on one count: tampering)


                                                 II.

      Appellants have appealed on numerous grounds, both jointly and as
individuals. Appellants first challenge the sufficiency of the evidence supporting


                                               -16-
their convictions, alleging that the district court erred in denying their motions for
judgment of acquittal as to the racketeering conspiracy and as to various substantive
counts. Our review on a sufficiency of the evidence challenge "is extremely
deferential to the underlying guilty verdict and raises a high bar for a defendant to
overcome." United States v. Wells, 646 F.3d 1097, 1102 (8th Cir. 2011). We will
only reverse the denial of a motion for acquittal if "after viewing the evidence in the
light most favorable to the jury's verdict, giving the government the benefit of all
reasonable inferences that may be drawn from the evidence, no construction of the
evidence will support the jury's verdict." United States v. Beltz, 385 F.3d 1158, 1163
(8th Cir. 2004) (internal quotations and citations omitted). In reviewing a challenge
to the sufficiency of the evidence, "witness testimony does not need to be
corroborated," and "a jury's credibility determinations are virtually unreviewable."
United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011) (internal quotations and
citations omitted).

                                            A.

      RICO makes it unlawful "for any person . . . associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity," 18 U.S.C. § 1962(c), or to engage in any
conspiracy to commit such an offense, 18 U.S.C. § 1962(d). The definition of a
RICO "enterprise" includes "any union or group of individuals associated in fact
although not a legal entity." 18 U.S.C. § 1961(4).

      The defendants jointly argue that the government failed to present sufficient
evidence that the Wheels of Soul was an "enterprise" as defined by 18 U.S.C.
§ 1961(4) and thus assert that they could not be convicted of racketeering conspiracy
under 18 U.S.C. § 1962(d). Specifically, the defendants claim that the evidence



                                           -17-
presented at trial showed that the Wheels of Soul is a loosely organized national
motorcycle club, but that each of its chapters had distinct rules and members with no
real structure or control from the national leadership. They point to testimony from
both Allan Hunter and a regional president in California which indicates that the
Wheels of Soul regional presidents did not consult with the national office in
Philadelphia prior to engaging in individual acts of criminal conduct and that the
established national rules were not always followed by individual chapters.

       We have previously explained that to prove the existence of a RICO enterprise
the government must offer proof of (1) a common or shared purpose that animates the
individuals associated with it, (2) a formal or informal organization of the participants
in which they function as a unit, including some continuity of both structure and
personnel, and (3) an ascertainable structure distinct from that inherent in the conduct
of a pattern of racketeering activity. United States v. Kragness, 830 F.2d 842, 855
(8th Cir. 1987) (citing United States v. Turkette, 452 U.S. 576, 583 (1981); United
States v. Bledsoe, 674 F.2d 647, 664–65 (8th Cir. 1982)). Evidence of a common
purpose may "be circumstantial, as by evidence that the group of individuals
functions as a continuing unit in an informal or formal organization engaged in a
course of conduct directed toward the accomplishment of the common purpose
alleged." United States v. Griffin, 660 F.2d 996, 1000 (4th Cir. 1981).

       In United States v. Leisure, 844 F.2d 1347, 1363–64 (8th Cir. 1988), we
addressed a challenge to the existence of a RICO enterprise, concluding that one
existed where the organization "acted out of a common purpose to dominate local
labor unions, profit economically from this domination, and murder opponents of
their efforts to the extent necessary." We observed that the continuous and consistent
nature of the association there, as well as the sequence of murders and attempted
murders committed by members of the group, distinguished that organization from




                                          -18-
one "of a sporadic and temporary criminal alliance to commit one of the enumerated
RICO crimes." Id. (internal quotation omitted).

        We conclude that there is sufficient evidence in the record before us to find that
the Wheels of Soul was not a mere "sporadic" or "temporary" criminal alliance, but
one that evidenced a sustained and continuous effort to maintain influence over
certain territories and assert its dominance through a series of murders and attempted
murders. Id.; see also United States v. Davidson, 122 F.3d 531, 534–35 (8th Cir.
1997). The government presented evidence that most of the victims of the violent
acts described above were members of competing clubs, as in the shooting in Gary,
the armed robbery against the Polks, and the conspiracy to murder members of
Outcast. Moreover, there was evidence showing that these discrete disputes would
"filter down" to other chapters. For example, after the "Black New Years" party on
January 29, 2011, the national leadership indicated that the Wheels of Soul was "at
war" with members of Outcast. Members were then encouraged at meetings to assert
their dominance over these other groups and to use violence to achieve this end.
Moreover, members like Walter Lee, who participated in the conspiracy to commit
murder at the "Black New Year" event in St. Louis, testified that they committed
certain acts for fear of discipline from the organization if they did not. Thus, there
was sufficient evidence to find that each of these acts was tied to a common purpose
communicated by the organization's leadership and was committed with the
organization's encouragement, support, or coercion.

       Moreover, the government presented evidence that the Wheels of Soul had an
independent purpose as a motorcycle club. It had regular meetings, a constitution,
dues, and formal officer positions that changed hands when necessary. Thus, the
Wheels of Soul functioned as a unit with continuity of structure, and had an
ascertainable purpose distinct from that inherent in the racketeering conduct. See
Kragness, 830 F.2d at 855. We therefore conclude that the government presented



                                          -19-
sufficient evidence for the jury to conclude that the Wheels of Soul was a RICO
enterprise.

                                           B.

      The defendants next argue in their joint brief that the government failed to
present sufficient evidence that the predicate acts committed by members of the
Wheels of Soul amounted to a "pattern of racketeering" as required by 18 U.S.C. §
1962(c) and (d). Specifically, they argue that the predicate acts alleged by the
government were unrelated, random, sporadic, spontaneous, and isolated acts
motivated by personal feuds.

       To demonstrate a "pattern of racketeering activity" the government must show
"at least two acts of racketeering activity" which occurred within ten years of each
other. 18 U.S.C. § 1961(5). Additionally, the government must show that "the
racketeering predicates are related, and that they amount to or pose a threat of
continued criminal activity." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239
(1989). Criminal acts are related if they are shown to "have the same or similar
purposes, results, participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated events." Id. at 240;
see also Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769 (8th Cir. 1992). The acts
must have both "horizontal relatedness," meaning that the acts are related to one
another, and "vertical relatedness," meaning that the predicate acts have a nexus to
the enterprise. United States v. Burden, 600 F.3d 204, 216 (2d Cir. 2010).

       We conclude that the government presented sufficient evidence for the jury to
find a "pattern of racketeering activity." The government argued at trial that all of the
predicate acts shared a similar purpose of asserting the dominance of the Wheels of
Soul and punishing those who committed real or perceived transgressions against the



                                          -20-
club or its members. For example, the government presented evidence that much of
the violence was directed at individuals wearing "colors" that the Wheels of Soul had
not authorized them to wear, including the incidents on August 10, 2009 and January
2, 2011. The government also presented evidence that several of these incidents
occurred in defense of members or friends of the Wheels of Soul, such as the shooting
at Bennigan's on May 28, 2009 and the shooting of an off duty corrections officer
who was targeted for wearing a rival club's colors.

       The incidents were also interrelated: disputes in one city would "trickle down"
to other cities, and certain disputes would lead to declarations of "war" within the
organization at large. The victims were almost always members of rival clubs, and
the violent acts were almost always committed by members acting together during a
group event, rather than a single individual acting alone. The jury was properly
instructed that it must decide whether the acts were related. We conclude that it
reasonable for the jury to find that the charged acts of violence arose from the
motorcycle club's rivalries, loyalties, and desire to establish and maintain its
continuing reputation. Cf. Burden, 600 F.3d at 218–19; United States v. Simmons,
923 F.2d 934, 951–52 (2d Cir. 2010).

       Finally, there is no genuine dispute that the acts continued beyond the period
of one year, and that the jury thus had sufficient evidence to conclude that the acts
had continuity. See United States v. Hively, 437 F.3d 752, 761 (8th Cir. 2006). We
conclude that the government presented sufficient evidence for the jury to find that
the predicate acts committed by members of the Wheels of Soul amounted to a
"pattern of racketeering."

                                         C.

      In his individual brief, national vice president Smith alleges that the district
court erred in denying his motion for judgment of acquittal. He claims that no

                                        -21-
reasonable jury could have found beyond a reasonable doubt that he was aware that
any member of the conspiracy would commit two predicate acts of racketeering. The
government can establish a conspiratorial agreement to violate RICO in two different
ways: by proving either that a defendant personally agreed to commit two predicate
acts in furtherance of the enterprise or that a defendant "agree[d] to participate in the
conduct of the enterprise with the knowledge and intent that other members of the
conspiracy would commit at least two predicate acts in furtherance of the enterprise."
United States v. Nguyen, 255 F.3d 1335, 1341 (11th Cir. 2001); see also Salinas v.
United States, 522 U.S. 52, 63–65 (1997). The government did not charge vice
president Smith with any substantive offenses, but rather relied on a knowledge and
intent theory in convicting him of RICO conspiracy. Smith now challenges the
sufficiency of the evidence intended to show that he knew about the acts taken by
others to further or facilitate the criminal endeavor.

       Seen in the light most favorable to the guilty verdict, we conclude there was
sufficient evidence to convict Smith for conspiracy. While addressing a similar issue,
the Eleventh Circuit explained that under the Salinas theory of RICO liability, "[t]he
focus is on the agreement to participate in the enterprise through the pattern of
racketeering activity, not on the agreement to commit the individual predicate acts."
United States v. Starrett, 55 F.3d 1525, 1543–44 (11th Cir. 1995). The government
can prove such an agreement with "circumstantial evidence showing that each
defendant must necessarily have known that others were also conspiring to participate
in the same enterprise through a pattern of racketeering activity." Id. (internal
quotation omitted).

      During trial the jury heard the testimony of former members of the Wheels of
Soul who testified that Smith was advised of numerous acts of violence committed
by other members of the organization. Testimony indicated that Smith acknowledged
these acts and did not attempt to take any corrective action. The government
presented evidence that Smith also gave tacit approval to members who were

                                          -22-
planning future retaliatory acts of violence. There was also evidence that Smith
himself instructed members at national and regional meetings to use violence to
promote the interests and standing of the organization. Taken together, this evidence
is sufficient to prove his conspiratorial agreement.

                                           D.

        Henley raises several sufficiency of the evidence claims in his individual brief.
First, he argues there was insufficient evidence to support his guilty verdict for RICO
conspiracy because he was convicted of only one predicate offense. As explained
above, however, the government does not have to show that Henley actually
committed two predicate acts; it was sufficient to show that Henley knew about and
agreed to facilitate the criminal scheme. Salinas, 522 U.S. at 64–65. The government
introduced statements from Henley, the president of the St. Louis chapter, that the
Wheels of Soul were "at war" with Sin City following the shooting at the Bennigan's
in May 2009. The government also introduced evidence that defendant Henley held
a St. Louis chapter meeting on August 10, at which he instructed members to assert
their dominance over other motorcycle clubs in the city. Following the meeting,
Henley directed members of his chapter to remove a couple's colors at gunpoint.
There was thus sufficient evidence before the jury for it to find that Henley knew
about and intended to facilitate the RICO scheme.

       In addition, Henley argues that there was insufficient evidence to support his
guilty verdict for conspiracy to commit murder because no jury could have found
beyond a reasonable doubt that on the night of January 29, 2011 there was both an
agreement to kill members of Outcast and an act in furtherance of such crime.
Henley's central argument is that the primary evidence to convict him of conspiring
to commit murder was the unreasonable and incredible testimony of Walter Lee. Our
role is not to "assess the credibility of witnesses," however. United States v. Allery,
139 F.3d 609, 611 (8th Cir. 1998) (internal quotation omitted). It was the province

                                          -23-
of the jury to weigh Lee's credibility and to examine his statements in light of the rest
of the evidence presented at trial.

                                           E.

       In their combined brief, Elkins and Fry raise a sufficiency of the evidence claim
in response to their conviction for conspiracy to commit murder at the Black New
Years party. This argument is again based on Walter Lee's lack of credibility. As
already discussed above, however, we cannot assess the credibility of witnesses on
appeal. Id. Moreover, the jury heard wiretap recordings and testimony from Allan
Hunter which corroborated the participation of Elkins and Fry in the holiday scheme.
We conclude there was sufficient evidence for the jury to convict on this charge.

                                           F.

       Robinson raises three sufficiency of the evidence issues in his individual
appeal. First, he argues that the district court erred in denying his motion for a
judgment of acquittal, asserting that the government presented insufficient evidence
for the jury to find beyond a reasonable doubt that he committed felony murder or
attempted murder on January 2, 2011. This argument ignores the considerable
evidence the government submitted that Robinson challenged a member of a rival
motorcycle club with weapon drawn in an attempt to rob him of his colors. The
government's evidence included not only testimony by the individual wearing the
colors, but also by a friend who witnessed the event and by several bystanders. One
of the bystanders even testified that she overheard an argument about a "rocker"
shortly before the gun fight began. This record evidence is sufficient for a jury to
find beyond a reasonable doubt that Robinson shot and killed a man at the clubhouse
in the course of a robbery. Thus, Robinson's first argument fails.




                                          -24-
       Second, Robinson argues that the district court erred by denying his motion for
a judgment of acquittal when the government failed to prove beyond a reasonable
doubt that he was not acting in self defense when he shot at civilians at a party on
March 6, 2011. This argument is likewise without merit. The jurors were specifically
instructed on self defense before they deliberated, and they nevertheless convicted
Robinson on one count of murder. Moreover, there was sufficient evidence for them
to do so. Several witnesses stated that they had not see anyone else with guns at the
time they saw Robinson shooting out the door of the clubhouse. The police report
also indicates there was no physical evidence of shots having been fired at the
building.

       Third, Robinson argues that the district court erred in denying his motion for
a judgment of acquittal after the government failed to prove beyond a reasonable
doubt that he committed his RICO offenses for the purpose of maintaining or
increasing his position in the Wheels of Soul. Other courts to address such issues
have concluded that while the government must show that the defendant was
motivated by maintaining or increasing his position in the racketeering enterprise, it
need not show that it was his "sole or principal motive." United States v. Whitten,
610 F.3d 168, 178–79 (2d Cir. 2010) (internal quotation omitted). We agree. Here,
the jury heard evidence that Robinson carried out, or was complicit in, various acts
of violence directed at members of rival clubs. Moreover, the jury heard recorded
statements in which Robinson said that he aimed to shoot people after they offended
members of the club. There was sufficient evidence, when taken in the light most
favorable to the verdict, for the jury to find that Robinson's offenses were acts of
retaliation intended to further the interests of the organization and fulfill the
requirements of his position as sergeant at arms.




                                        -25-
                                          G.

      Peteet, like Henley, argues in his individual brief that there was insufficient
evidence to support his conviction for RICO conspiracy because he was convicted of
only one predicate offense. This argument ignores the applicable standard. As
explained above, the government does not have to show that Peteet actually
committed two predicate acts as long as it can show that Peteet knew about and
agreed to facilitate the larger criminal scheme. Salinas, 522 U.S. at 64–65.

       Viewed in the light most favorable to the verdict, there was sufficient evidence
before the jury for it to conclude that Peteet knew about and intended to facilitate the
RICO scheme. The jury heard evidence that Peteet was a chapter president, a position
obtained only through the consent of the larger organization and which required
communication with the regional and national leadership. Moreover, the government
introduced evidence that Peteet shot Taylor, a member of a rival organization, while
out with a group of Wheels of Soul members, and that this dispute "trickled down"
to other chapters in the region. There was also evidence that Peteet was an attorney
who occasionally represented or advised other members of the organization who
faced legal action connected with their Wheels of Soul activity. While Peteet was not
directly involved in multiple predicate acts, the jury heard sufficient evidence to find
that Peteet knew about and agreed to facilitate the organization's larger criminal
scheme. Id.

                                          III.

      The defendants next argue in their joint brief that the Eastern District of
Missouri did not have jurisdiction to authorize the interception of communications
from a cellular phone located in Illinois, and thus the district court erred when it
denied their motions to suppress the evidence obtained from Allan Hunter's phone.
We review the denial of a motion to suppress de novo and the underlying factual

                                         -26-
determinations for clear error. United States v. Jackson, 345 F.3d 638, 644 (8th Cir.
2003). While this issue was raised in the defendants' joint brief, we note that only
defendants Henley, Smith, Elkins, and Robinson have preserved the issue and have
standing to assert this claim.

       Under 18 U.S.C. § 2518(3), a judge "may enter an ex parte order . . .
authorizing or approving the interception of wire, oral, or electronic communications
within the territorial jurisdiction of the court in which the judge is sitting." The
defendants claim that the wiretap order failed to comply with this "jurisdiction
requirement" because the target phone of the wiretap order was based in Chicago
during the entire course of the government's investigation, a city outside the
"territorial jurisdiction" of the Eastern District of Missouri.

        While this is an issue of first impression in our circuit, similar arguments have
been consistently rejected in other circuits. In United States v. Rodriguez, 968 F.2d
130, 136 (2d Cir. 1992), for example, the Second Circuit concluded that "for purposes
of § 2518(3)'s jurisdictional requirement, a communication is intercepted not only
where the tapped telephone is located, but also where the contents of the redirected
communication are first to be heard." That court focused on the plain language of 18
U.S.C. § 2510(4), which defines "intercept" as "the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the use of any
electronic, mechanical, or other device." 968 F.2d at 136. It reasoned that the
reference to "aural" acquisition necessarily encompasses the place where the
redirected contents of the communication are first heard. Id. The Fifth Circuit agreed
with this reasoning in United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996),
concluding "that interception includes both the location of a tapped telephone and the
original listening post, and that judges in either jurisdiction have authority under Title
III to issue wiretap orders." See also United States v. Luong, 471 F.3d 1107, 1109
(9th Cir. 2006).



                                          -27-
       We agree with this interpretation of § 2518(3) as applied to the facts of this
case. While the investigation of the Wheels of Soul ultimately encompassed a wide
region, it originated in St. Louis. Several of the original targets of the investigation
lived in St. Louis and several of the charged substantive offenses occurred in St.
Louis. The listening post was established in St. Louis as part of this larger
government investigation and the contents of the intercepted communications were
first heard there. On this record we conclude that a judge sitting in the Eastern
District of Missouri had jurisdiction to authorize this wiretap, see Rodriguez, 968
F.2d at 136, and that defendants' motion to suppress was properly denied.

                                          IV.

       The defendants jointly challenge the admission of their recorded
conversations—those recorded with the consent of informant Matthew Hunter and
those recorded under the Title III wiretap of Allan Hunter's phone. The defendants
first argue that the government failed properly to authenticate Matthew Hunter's
consensual tape recordings and the Title III wiretap recordings from Allan Hunter's
cellular phone. They point out that one of the witnesses who was asked to
authenticate the recordings at trial admitted on cross examination that he had not
reviewed all of the recordings before testifying. They also allege that several of the
witnesses authenticating the recordings had trouble identifying the time at which the
original conversations had occurred. Additionally, they assert that the recordings
introduced at trial, which were copies of the original recordings, had never been
directly compared to the originals. Nor was any evidence presented on steps taken
to maintain the integrity of these copies. Defendants claim therefore that chain of
custody was not properly established and that the government erred by introducing
no affirmative evidence to show the tapes had not been tampered with or altered after
they were sealed. Finally, the defendants argue that the recordings are poor with
numerous gaps and therefore are untrustworthy evidence. They also argue that the
wiretap recordings were never properly sealed.

                                         -28-
       Our review is for clear abuse of discretion. United States v. Roach, 28 F.3d
729, 732–33 (8th Cir. 1994). Admission of electronic tape recordings is likely proper
where the government established that: (1) the recording device was capable of
recording the events offered in evidence, (2) the operator was competent to operate
the device, (3) the recording is authentic and correct, (4) changes, additions, or
deletions have not been made in the recording, (5) the recording has been preserved
in a manner that is shown to the court, (6) the speakers on the tape are identified, and
(7) the conversation elicited was made voluntarily and in good faith, without any kind
of inducement. Id. at 733 (citing United States v. McMillan, 508 F.2d 101, 104 (8th
Cir. 1974)). We have explained that these McMillan factors are merely helpful
guidelines, and must be "viewed in light of [the] specific circumstances," rather than
rigidly applied. United States v. Oslund, 453 F.3d 1048, 1055 (8th Cir. 2006).

       While the trial court did admonish the government for "leaving the impression
with me and with the members of this jury that [a] witness had listened to these
recordings before he heard them in court for the first time," the district court
ultimately denied the defendants' motion to strike on this ground, stating that "there
is a sufficient foundation, or [there] will be . . . before this case is over." The
government later called officer Van Mierlo who testified about the technology used
to record the conversations and the process used to collect and to review these
recordings. She also disclosed the steps taken to prepare the recordings for trial. At
the end of this testimony the district court concluded "that the Government has laid
the appropriate foundation for all of these recordings, and so . . . den[ied] the
objections to the playing of these recordings and the transcripts based on all the
arguments that you all have made here and throughout the trial." It explained that
while "the Government did not lay the proper foundation in the beginning, . . . it has
now been laid."

     While the government may have made some mistakes while authenticating the
voluminous recordings at trial, the district court did not clearly abuse its discretion

                                         -29-
in admitting the evidence. First, the government introduced a witness who
participated in each recorded conversation presented at trial, and the defendants
challenge only one of these witnesses for having failed to review all of the tapes prior
to trial. Roach, 28 F.3d at 733 (recordings are properly authenticated where
participants in the recorded conversation affirm the recording's accuracy after
listening to that recording). Moreover, the challenged witness did testify that he had
reviewed transcripts of the conversations and that these transcripts accurately
reported the conversation in which he had participated. The court did not abuse its
discretion in examining the evidence of authenticity as a whole and concluding that
the McMillan factors were satisfied here.

       As to the chain of custody and preservation challenges, we again conclude that
the district court did not clearly abuse its discretion in admitting the evidence. We
have previously explained that a district court "is entitled, absent proof to the
contrary, to assume that the investigators properly maintained [a] tape and did not
tamper with it." Roach, 28 F.3d at 733; see also United States v. Coohey, 11 F.3d 97,
100 (8th Cir. 1993). Moreover, officer Van Mierlo presented significant testimony
about the procedures used to collect, store, and prepare the recordings for trial. This
testimony included explanations of the security features on the server where the
wiretap recordings were stored and the reasonable steps taken to protect these
recordings "from editing or other alterations." 18 U.S.C. § 2518(8)(a). Any concerns
about the "gaps" in the recordings go to weight of the evidence, and not its
admissibility. Oslund, 453 F.3d at 1056 (internal quotation omitted).

       A remaining issue is whether the recordings were improperly sealed. Under
18 U.S.C. § 2518(8)(a), recordings obtained through a Title III wiretap must be sealed
"[i]mmediately upon the expiration of the period of the order." The defendants argue
that the recordings here were not sealed until six days after the expiration of the last
of three different orders. They also argue that in violation of Title III, the recordings
made under the first wiretap order were not sealed until 60 days after the expiration

                                          -30-
of that order. This argument is contradicted by the language of the statute, which
reads in full that "[i]mmediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to the judge issuing such
order and sealed under his directions." § 2518(8)(a) (emphasis added). The wiretap
expired at 11:59 p.m. on a Friday, and Officer Van Mierlo contacted the court that
Monday for an appointment to seal the recordings. The busy presiding judge then
was able to find time on Thursday to seal the recordings. We conclude on these facts
that the delay caused by the judge's schedule was excusable. See United States v.
Pedroni, 958 F.2d 262, 266 (9th Cir. 1992).

      The district court thus did not err in admitting the recorded evidence.

                                           V.

       Appellants collectively (and Smith, Fry, and Elkins individually) argue that the
district court abused its discretion by not submitting the case with a special verdict
form requiring that the jury unanimously find which predicate acts were attributable
to any one of the defendants. Our standard of review is for an abuse of discretion.
United States v. Pierce, 479 F.3d 546, 551 (8th Cir. 2007). Special verdict forms may
be confusing for a jury and their use is within the discretion of the court. Id. As the
Second Circuit has explained, the "ultimate decision whether to use special
interrogatories in criminal RICO cases is left to the discretion of the trial judge and
[] neither the prosecutor nor the defendant has the right to insist on their use." United
States v. Applins, 637 F.3d 59, 83 (2d Cir. 2011) (quoting Robert M. Grass, Note,
Bifurcated Jury Deliberations in Criminal RICO Trials, 57 FORDHAM L. REV. 745,
754 (1989)).

                                          VI.

       Robinson argues for reversal of his attempted murder conviction resulting from
the January 2, 2011 shooting at the Chicago clubhouse. He argues that the jury was
                                          -31-
improperly instructed on the elements of the offense, resulting in a "constructive
amendment" of the superseding indictment. Robinson states that the court's
Instruction 40 failed to make clear that the jury had to find beyond a reasonable doubt
that he had taken a substantial step toward committing the crime of first degree
murder, an essential element of attempted murder alleged in the superceding
indictment. Since Robinson did not object to this instruction at trial, we review for
plain error, reversing only if the error was so prejudicial as to have affected the
defendant's substantial rights. United States v. Gavin, 583 F.3d 542, 545–46 (8th Cir.
2009).

       While the "substantial step" language should have been included in Instruction
40, we conclude that the omission did not affect Robinson's substantial rights. We
must examine the entire jury charge read as a whole in order to determine if it "fairly
and adequately contains the law applicable to the case." United States v. Webster,
442 F.3d 1065, 1067 (8th Cir. 2006) (internal quotation and citation omitted). Here,
the jury was twice instructed that a "substantial step" is a required element to convict
a defendant for attempt. Instruction 28(F) stated that "[a] person commits the crime
of Attempt to Commit Murder in violation of Illinois law, when he . . . voluntarily and
intentionally carries out some act which is a substantial step toward that crime," and
Instruction 47 provided a definition both of "attempt" and of "substantial step."
Taken as a whole, the instructions sufficiently explained the "substantial step"
requirement to the jury.

                                         VII.

       Robinson also alleges in his individual brief that the district court abused its
discretion when it permitted the government to introduce evidence of the November
1, 2009 murder of an off duty corrections officer, an uncharged murder not included
among the "overt acts" listed in the superceding indictment. We review for clear
abuse of discretion the district court's evidentiary rulings, "reversing only when an


                                         -32-
improper evidentiary ruling affected the defendant's substantial rights or had more
than a slight influence on the verdict." United States v. Summage, 575 F.3d 864, 877
(8th Cir. 2009).

       The district court did not abuse its discretion in admitting this evidence. In a
similar challenge in the Eleventh Circuit, that court concluded that evidence of
uncharged crimes was admissible in a RICO prosecution as "proof of an enterprise,
of the continuity of racketeering activity, and of the defendant's knowledge of,
agreement to, and participation in the conspiracy." United States v. Gonzalez, 921
F.2d 1530, 1546–47 (11th Cir. 1991); see also United States v. Baez, 349 F.3d 90, 93
(2d Cir. 2003). Evidence of uncharged predicate acts of murder can be relevant to
establish the elements of a RICO conspiracy. See United States v. Finestone, 816
F.2d 583, 586–87 (11th Cir. 1987). Here, the testimony of Allan Hunter about the
November 1, 2009 murder of a corrections officer was relevant to establish both the
continuity of the conspiracy and the common purpose underlying Robinson's acts.
In the context of the other acts charged in the indictment, we conclude the evidence
was not unfairly prejudicial.

                                         VIII.

      Smith argues in his individual brief that his motion to sever should have been
granted because the complexity of the case made it impossible for the jury to
compartmentalize the evidence. We will reverse a district court's denial of a motion
to sever only if "clear prejudice and an abuse of discretion is shown." United States
v. Mueller, 661 F.3d 338, 347 (8th Cir. 2011) (internal quotation omitted). Smith has
not shown either here.

      We have previously recognized that "persons charged with conspiracy should
generally be tried together." United States v. Kindle, 925 F.2d 272, 277 (8th Cir.
1991). There is a strong presumption for a joint trial since it "gives the jury the best


                                         -33-
perspective on all of the evidence and therefore increases the likelihood of a just
outcome." United States v. Lewis, 557 F.3d 601, 609 (8th Cir. 2009) (internal
quotation omitted). In assessing the jury's ability to compartmentalize the evidence
against joint defendants, not only the complexity of the case must be examined, but
also whether any of the defendants were acquitted and whether the jury instructions
were adequate. Id. at 610. Here, the jury acquitted four of the six defendants on
charged offenses and it was specifically instructed to evaluate the evidence against
each defendant separately. Smith has not shown on this record that the court erred
by failing to sever his case.

                                           IX.

        Defendant Peteet argues in his individual brief that the district court abused its
discretion by refusing to admit an affidavit, purportedly by Barry Rogers, which
claimed that it was he who had shot Taylor at the Bennigan's parking lot on May 28,
2009. The hearsay confession of an unavailable third party to exculpate someone else
is admissible only if it can satisfy at least two criteria. These criteria are: (1) the
statement must have "so far tended to subject [the declarant] to civil or criminal
liability" that a reasonable person would not have made such an admission, and (2)
there must exist "corroborating circumstances clearly indicat[ing] the trustworthiness
of the statement." Fed. R. Evid. 804(b)(3) advisory committee's note. The Rogers
affidavit was not clearly against his own interest because in it he claims he shot
Taylor in self defense. See United States v. Shryock, 342 F.3d 948, 981 (9th Cir.
2003) ("The district court did not abuse its discretion by excluding [the unavailable
declarant's] statement that he shot the victims in self-defense because the statement
was exculpatory, and not against his penal interest.").

       While Peteet argues that Rogers opened himself to prosecution for being a
felon in possession by his affidavit, it was still inadmissible if it lacked indicia of
trustworthiness. Fed. R. Evid. 804(b)(3). As a fellow member of the Wheels of Soul,


                                          -34-
an organization based around loyalty to its members, Rogers had a motive to help
Peteet. Moreover, numerous other witnesses testified that Peteet was the shooter.
Only Peteet and his brother presented testimony that it had been Rogers. We
conclude the district court did not clearly abuse its discretion in finding the affidavit
unreliable and inadmissible.

                                           X.

        Defendant Peteet also argues in his individual brief that the district court erred
by excluding the testimony of Rogers' wife as to certain statements made by him
about the events of May 28, 2009. This argument is without merit. When Peteet
called Rogers' wife to the stand at trial, the government objected on hearsay grounds
before she could testify as to what her husband had said when he returned home on
the evening of May 28. The government's objection was sustained, and this issue was
not preserved because Peteet did not make an offer of proof on the excluded
evidence. United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011) (citing Fed.
R. Evid. 103(a)(2)). It is therefore reviewed only for plain error. Id. An offer of
proof is provided "to inform the court and opposing counsel of the substance of the
excluded evidence and to provide the appellate court with a record sufficient to allow
it to determine if the exclusion was erroneous." Id. (internal quotation omitted). We
conclude that the district court did not plainly err in excluding the testimony of
Rogers' wife since Peteet failed to lay an evidentiary foundation by showing it to be
an excited utterance or a statement against interest.

                                           XI.

      Finally, Peteet argues in his individual brief that the district court erred at his
sentencing by imposing a two level enhancement under U.S.S.G. § 3B1.1(c) as "an
organizer, leader, manager, or supervisor." A district court's factual findings
supporting a leadership enhancement are reviewed for clear error and its legal


                                          -35-
conclusions are reviewed de novo. United States v. Adetiloye, 716 F.3d 1030, 1037
(8th Cir. 2013). In determining whether an enhancement under § 3B1.1 is
appropriate, we examine such factors as "[t]he exercise of decision making authority,
the nature of participation in the commission of the offense, the recruitment of
accomplices, . . . the nature and scope of the illegal activity, and the degree of control
and authority exercised over others." United States v. Frausto, 636 F.3d 992, 996 (8th
Cir. 2011) (citing United States v. Adamson, 608 F.3d 1049, 1056 (8th Cir. 2010)).

       There was sufficient record evidence for the district court to find that Peteet
was eligible for a two level leadership enhancement. Peteet's colors were introduced
in evidence, and they bear a "president" patch. There was also evidence that chapter
presidents were responsible for maintaining membership, ensuring the payment of
dues, calling and presiding over meetings where priorities were communicated,
passing information from the national and regional leadership to the members, and
enforcing club rules. In addition, the jury heard that Peteet stored and reissued
"colors" for other members of his chapter who were imprisoned. He also directed
members to conceal the weapon used in the May 28, 2009 Bennigan's shooting and
later to produce the gun after he was indicted. We conclude that the evidence
supported the district court's application of the leadership enhancement.

                                          XII.

     After thoroughly reviewing the extensive record in this case and the legal
arguments raised, we affirm the judgments of the district court.
                      ______________________________




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