                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                        No. 10-4075
                                       ____________

                           UNITED STATES OF AMERICA

                                            v.

                            GELEAN MARK a/k/a Kerwin
                                  Gelean Mark,
                                            Appellant
                                 ____________

                           On Appeal from the District Court
                       of the Virgin Islands – Appellate Division
                                 Division of St. Thomas
                              (D.C. No. 3-09-cr-00020-001)
                      District Judge: Honorable Curtis V. Gomez,
                                     ____________

                            Argued December 8, 2011
           Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

                                (Filed: January 17, 2012)

Richard F. Della Fera (Argued)
Alvin E. Entin
Entin & Della Fera
110 Southeast 6th Street, Suite 1970
Fort Lauderdale, FL 33301
       Counsel for Appellant

Kelly Lake
Nolan D. Paige (Argued)
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
Charlotte Amalie, St. Thomas, USVI 00802-6924
       Counsel for Appellee
                                  ____________
                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Gelean Mark appeals from his convictions in the U.S. District Court for the

District of the Virgin Islands for engaging in a pattern of racketeering activity in violation

of 18 U.S.C. § 1961 et seq. We will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On October 1, 2009, a grand jury handed down a superseding indictment against

Gelean Mark and Jerome Blyden, charging them with participating in or operating a

racketeering enterprise (“Mark/Blyden enterprise”) involving narcotics sales, illegal

gambling, and violent acts, in violation of 18 U.S.C. § 1962(c) (“RICO”) (Count One);

attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959 (Count Two);

assault with a dangerous weapon in aid of racketeering, also in violation of 18 U.S.C.

§ 1959 (Count Three); and using a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924 (Count Five).1



       1
        Counts Four, Six and Seven charged Blyden only with assault, money laundering
and fraud offenses.


                                              2
       The District Court granted Mark‟s first counsel several continuances of trial in

recognition of the case‟s complexity and cumbersome discovery. On February 5, 2010,

Mark‟s first counsel was excused, and the court appointed new counsel to represent him.

One week after being appointed, Mark‟s second counsel filed an emergency motion to

continue, requesting at least a ninety-day extension of trial from the scheduled date of

March 22, 2010. The court granted a continuance for an additional forty-two days of

preparation, but summarily denied the full ninety-day request.

       Trial was held from May 3, 2010 to May 8, 2010. The government presented

taped phone conversations about drug trafficking and dogfighting between Mark and

another member of the alleged narcotics trafficking conspiracy, Vernon Fagan, and

conversations between other dealers discussing Mark‟s narcotics distribution network in

the Virgin Islands. Three government witnesses, Elton Turnbull, James Springette, and

Glenson Isaac, testified that they were engaged in drug trafficking activity with Mark,

and described an extensive drug trafficking network headed by Springette, with which

Mark‟s drug trafficking enterprise was affiliated. They also testified that Mark would

secure drugs from the Springette organization at the airport in St. Thomas and facilitate

their transport to the continental United States. Turnbull further testified that Mark and

Blyden had hosted dogfights in the Virgin Islands, and that he and Mark had pooled

money to gamble on the fights on several occasions. Isaac testified that he had attended a

dogfight hosted by Mark in 2004, at which Mark won $80,000, and that drug proceeds

were used “to bet that large quantity of money at dogfights.”

                                             3
       On May 8, 2010, the jury returned a verdict of guilty against Mark on Counts One

and Three (the RICO offenses), but acquitted him on Counts Two and Five. Mark filed

post-trial motions for judgment of acquittal and a new trial. The District Court denied the

motions, and sentenced Mark to 121 months‟ imprisonment. Mark filed a timely appeal.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C.

§ 1612. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613.

       Mark presents four issues on appeal: the denial of his motion for a continuance;

the use of the Virgin Islands dogfighting statute as a predicate RICO offense; the

sufficiency of the evidence connecting his dogfighting and drug trafficking as a pattern of

racketeering activity; and the admission of testimony on the Springette drug organization

as irrelevant and unfairly prejudicial.

       We address Mark‟s contentions in turn. We review the denial of his motion for a

continuance for abuse of discretion. United States v. Rivera Constr. Co., 863 F.2d 293,

295 n.3 (3d Cir. 2000). Mark‟s challenge to the use of the Virgin Islands dogfighting

statute as a predicate RICO offense presents a matter of statutory interpretation over

which we exercise plenary review. United States v. Parise, 159 F.3d 790, 794 (3d Cir.

1998). We exercise plenary review over the denial of a Rule 29 challenge to the

sufficiency of the evidence, and view the evidence “in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found proof of guilt

beyond a reasonable doubt.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005).

                                             4
We review a district court‟s admission of evidence for abuse of discretion, but exercise

plenary review over its interpretation of the Federal Rules of Evidence. United States v.

Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

                                            III.

       Mark first asks for a new trial on the grounds that the District Court abused its

discretion in denying his motion for a ninety-day continuance, and granting him forty-

two days instead. The District Court‟s summary denial of the full request, after

unreservedly granting prior extensions, leads us to surmise that nothing but the calendar

of the court constrained its decision. Although we give a judge “wide latitude” in

exercising discretion over the grant of a continuance, judges “must balance the

conflicting demands of court administration with the rights of the accused and [third

parties] who would be affected by the consequences of a delay.” Gov’t of Virgin Islands

v. Charleswell, 115 F.3d 171, 174 (3d Cir. 1997); see United States v. Kikumura, 947

F.2d 72, 78 (3d Cir. 1991). We do not tolerate a “rigid insistence on expedition” that, by

constraining counsel‟s ability to prepare, may deprive a defendant of due process.

Charleswell, 115 F.3d at 174 (quoting United States v. Rankin, 779 F.2d 956, 960 (3d

Cir. 1986)).2




       2
        This is a point which we emphasize: the calendar of the court, when not dealing
with a speedy trial question, should not trump a defendant‟s Sixth Amendment rights; in
weighing a request for a continuance, the court‟s calendar should only play a minor role.


                                             5
       We fully acknowledge that trial preparation in this case was complicated. Counsel

was saddled with thousands of pages of discovery and prior trial transcripts, as well as

numerous recordings; indeed, we have no quarrel with counsel‟s proffered justifications

for seeking a continuance. Nevertheless, we conclude that the District Court did not

abuse its discretion by granting a partial continuance. In total, counsel had eighty-seven

days to prepare a defense; RICO cases can be complex, but this was, objectively, ample

time to obtain records, meet with the defendant, and subpoena witnesses, see United

States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), and there were

no sudden emergencies frustrating counsel‟s preparation on the eve of trial. See

Charleswell, 115 F.3d at 174. The time allotted for trial preparation is often less than

counsel may desire, and although Mark contends that the need for a continuance is

substantiated by his counsel‟s ineffectiveness at trial, the proper method of addressing

ineffective assistance of counsel is a claim under Strickland v. Washington, 466 U.S. 668

(1984). Consequently, we do not find that the District Court abused its discretion in

granting a continuance of forty-two days instead of ninety.

       Mark next contends that the Virgin Islands dogfighting statute cannot be used as a

predicate RICO offense because it is not an act involving gambling. See 18 U.S.C.

§ 1961(1)(A). We have consistently interpreted RICO to allow predicate acts similar to

the dogfighting offense charged in this case, because “State offenses [listed in

§ 1961(1)(A)] are included by generic designation.” United States v. Forsythe, 560 F.2d

1127, 1137 (3d Cir. 1977) (citation omitted). “The test for determining whether the

                                             6
charged acts fit into the generic category of the predicate offense is whether the

indictment charges a type of activity generally known or characterized in the proscribed

category . . . .” Id. (emphasis added). Gambling is defined as “the act or practice of

betting,” or “the act of risking something on an uncertain event.” Webster’s Third New

Int’l Dictionary (1981). The Virgin Islands dogfighting statute, under which a defendant

is punishable for acting “for any bet, stake, or reward,” 19 V.I.C. § 2613a(a), clearly falls

within the category of gambling offenses. Mark‟s argument that dogfighting cannot be a

predicate offense because it is part of a health code segment of the Virgin Islands Code is

likewise meritless. RICO requires only that the offense be chargeable under state law

and punishable by more than one year of imprisonment. 18 U.S.C. § 1961(A)(1). The

dogfighting statute qualifies because it is a chargeable offense punishable by up to two

years of imprisonment. See 19 V.I.C. § 2613a(a)(4). Accordingly, the government did

not need to charge a predicate act under the Virgin Islands‟ gambling statute.

       Mark is also incorrect that RICO requires that gambling be a necessary element of

the predicate offense. In Forsythe, we approved the use of a predicate offense which

involved bribery only in the disjunctive, rather than as a required element, because the

defendant was charged under the bribery prong. 560 F.2d at 1137-38. Likewise, Mark

was charged in the indictment based on his dogfighting wagers, and the jury was

instructed solely on the gambling prong of the offense, thereby requiring the jury to find

that his conduct in fact “involved” gambling. Thus, Mark‟s conduct falls squarely within

the RICO statute.

                                              7
       Mark‟s third argument is that there was insufficient evidence to tie together the

dogfighting and drug trafficking as a pattern of racketeering activity. See 18 U.S.C.

§§ 1961(5), 1962(c). A pattern of racketeering activity under RICO is established by

showing “continuity plus relationship” among predicate acts. Sedima S.P.R.I. v. Imrex

Co., 473 U.S. 479, 496 n.14 (1985) (quoting S. Rep. No. 91-617, at 158 (1969)).

Although sporadic and separate criminal activities cannot alone give rise to a pattern for

RICO purposes, United States v. Eufrasio, 935 F.2d 553, 565 (3d Cir. 1991), in organized

crime cases, relatedness and continuity may be established “by connecting diverse

predicate acts to an enterprise „whose business is racketeering activity.‟” United States v.

Basciano, 599 F.3d 184, 202 (3d Cir. 2010) (quoting United States v. Indelicato, 865

F.2d 1370, 1383 (3d Cir. 1989)). Because “a criminal enterprise is more, not less,

dangerous if it is versatile,” Eufrasio, 935 F.2d at 566 (citation omitted), RICO tolerates

the possibility that the predicate acts themselves may be diverse. United States v.

Bergrin, 650 F.3d 257, 270-71 (3d Cir. 2011).

       Under our longstanding interpretation of RICO, the evidence was sufficient in this

case to establish the requisite relationship between the dogfighting and the drug

trafficking conspiracies. Both operations furthered the Mark/Blyden enterprise‟s

purposes, broadly defined in the Superseding Indictment to include “[e]nriching the

members and associates” and “[p]romoting and enhancing the enterprise.” The same

individuals involved in the drug trafficking conspiracies – Mark and Blyden – also hosted

the dogfights, wagering and winning exceedingly large amounts of money, at times up to

                                             8
$50,000, and, as with the drug trafficking, Mark was the central player in organizing the

dogfights. Further, based on Isaac‟s testimony that drug proceeds were used to “bet that

large quantity of money” on dogfights, a reasonable jury could conclude that money was

funneled between the two endeavors. This evidence was more than sufficient to prove

the requisite relationship between the dogfighting and drug trafficking.

       In a final foray, Mark offers two arguments that the District Court abused its

discretion in admitting evidence of the Springette drug organization: first, that it was not

admissible for any relevant purpose; second, that even if it was relevant, it was unfairly

prejudicial under Federal Rule of Evidence 403. Neither argument prevails.

       First, evidence of the Springette organization was relevant to Mark‟s drug

trafficking and RICO charges as information establishing the organized existence and

purposes of the Mark/Blyden enterprise and the predicate acts. Evidence is considered

relevant in a RICO case if it tends to show the “existence and nature” of a criminal

organization or enterprise, as well as its “history, structure and internal discipline . . . ,

and the regular means by which it conducted unlawful business.” Eufrasio, 935 F.2d at

573. In this case, testimony about the Springette organization, including the drug

production, transportation, and distribution system, was relevant to show the “existence

and nature” of the Mark/Blyden enterprise, see id., and specifically, to show that the drug

offenses were systematic and related, thereby forming a “pattern” for RICO purposes.

This evidence was also probative of the defendants‟ roles and responsibilities within a

larger drug trafficking network, see id., an integral part of the prosecution‟s effort to

                                                9
demonstrate Mark‟s “knowing participation in and association with the RICO enterprise.”

United States v. DiSalvo, 34 F.3d 1204, 1221 (3d Cir. 1994).

       Second, the Springette evidence was not unfairly prejudicial under Federal Rule of

Evidence 403.3 Not every hint of prejudice requires exclusion, see United States v.

Echeverri, 854 F.2d 638, 644 (3d Cir. 1988), particularly in a RICO case such as this,

where the criminal acts of one defendant are related to the criminal acts of others. See,

e.g., DiSalvo, 34 F.3d at 1220-21. If the evidence proves “essential elements of the

RICO charges,” Rule 403 does not require exclusion so long as the evidence could not

have been offered in any less prejudicial way and the jury has received appropriate

instructions. Id. In this case, evidence of the Springette organization was highly

probative of the existence and nature of the RICO enterprise. The judge instructed the

jury to ignore Springette‟s drug organization as substantive evidence of the Mark/Blyden

enterprise, reminding the jury that “the defendants [were] not on trial for any act or any

conduct not specifically charged in the indictment,” and to “consider only the offenses

charged against the defendants in the indictment.” And because Springette

predominantly described the roles of coconspirators other than Mark, the jury was not

likely to confuse these other crimes with the charged conduct. In sum, the District Court

did not abuse its discretion in admitting evidence of the Springette organization.



       3
        For the same reason, Mark‟s reference to Rule 404(b) as a basis for exclusion is
misplaced.


                                             10
                                    IV.

For the foregoing reasons, we will affirm the judgment of the District Court.




                                     11
