     Case: 11-31049       Document: 00512356970    Page: 1   Date Filed: 08/28/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                     FILED
                                                                   August 28, 2013

                                    No. 11-31049                   Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff–Appellee,
v.

RENEE GILL PRATT,

                                             Defendant–Appellant.



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


Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Renee Gill Pratt appeals her sentence and conviction of one count of
conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act
(RICO)1 pursuant to 18 U.S.C. § 1962(d). We affirm Pratt’s conviction but vacate
her sentence and remand for resentencing.
                                         I
      Pratt, a member of the Louisiana House of Representatives from 1991 to
2002 and a New Orleans city councilmember from 2002 to 2006, was prosecuted
in connection with a federal investigation of several Louisiana politicians and



      1
          18 U.S.C. §§ 1961-1968.
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                                  No. 11-31049

businesspeople who allegedly abused their positions and misappropriated public
funds. The Government accused Pratt of using her political influence and power
to further the objectives of a criminal enterprise (“the Enterprise”) comprising
Pratt, members of a well-known Louisiana family, and various nonprofit entities
they controlled. Pratt allegedly conspired with members of the Enterprise to
illegally funnel state and federal funds and property to members of the
conspiracy for their personal benefit.
        Initially, the Government indicted Mose Jefferson, Angela Coleman, and
Betty Jefferson (“the Jeffersons”) on multiple felony charges including
embezzlement, money laundering, mail fraud, and conspiracy to commit the
same.     As the investigation progressed, the Government obtained a first
superseding indictment that added Pratt as a defendant and recast the
conspiracy charge as a RICO conspiracy. Pratt was charged only with the RICO
conspiracy count and not under any of the substantive counts. Pratt moved to
sever, arguing that the indictment alleged only a minor role in the conspiracy
and that her defense would be prejudiced by the presentation of evidence
concerning her codefendants’ substantive crimes. The court denied the motion.
        After a second superseding indictment was issued, Betty Jefferson and
Angela Coleman pleaded guilty, and the Government obtained a third
superseding indictment against only Pratt and Mose Jefferson. Pratt filed a
motion to dismiss, arguing that the indictment did not allege facts to support the
court’s subject matter jurisdiction and failed to allege actual criminal conduct by
Pratt. The court denied the motion. Due to Mose Jefferson’s health problems,
the Government then proceeded to trial against Pratt alone. That trial resulted
in a hung jury. In anticipation of a second trial, the Government obtained a
fourth superseding indictment, which named Pratt as the only defendant. As a
result, this indictment omitted the substantive-crime counts, but retained



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                                       No. 11-31049

references to the Jeffersons and details of their conduct as it related to the
alleged conspiracy.
      Jury selection for Pratt’s second trial began with a thirty-page
questionnaire sent to each potential juror. Several of the questions concerned
pretrial publicity and potential bias. In addition to general questions about
media exposure and consumption, potential jurors were specifically asked if they
had heard of Pratt, the Jeffersons, or any of several related individuals and
entities and, if so, what opinions the potential jurors had formed. The district
court struck some potential jurors based on their answers to the questionnaire.
      After conducting voir dire of the remaining potential jurors as a group, the
court questioned each potential juror individually. At first the district court
permitted the attorneys to ask questions directly, but during individual
questioning of the fourth potential juror, the court took control. Pratt’s lawyer
objected to the court’s decision and exclaimed that he had “never seen or met a
judge who knew how to conduct a voir dire, except to clean up a witness who
[was] already tainted.”         However, the court refused to cede control and
admonished Pratt’s attorney not to argue further. During the subsequent two
days of questioning, the court entertained objections and permitted the parties
to request additional questioning of the venire but did not allow either side to
question potential jurors directly. At various times during the questioning, Pratt
moved to strike jurors for cause, but the court overruled her objections. At the
conclusion of the individual questioning, the district court entertained challenges
for cause one last time.         Pratt challenged only two jurors, and the court
overruled both challenges.2 Both sides then exercised their peremptory strikes,
and Pratt used some of her challenges to strike jurors that she had




      2
          The court also overruled all of the Government’s challenges.

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                                    No. 11-31049

unsuccessfully challenged for cause. Pratt never moved to dismiss for cause any
of the jurors ultimately empaneled.
      The Government used five of its eight peremptory strikes to excuse black
jurors, leaving only one black juror on the panel. Pratt objected, arguing that
the Government’s strikes were racially motivated. The Government offered race-
neutral reasons for each of the strikes, after which Pratt was given an
opportunity to argue that those reasons were pretext for discrimination. The
district court denied Pratt’s objection, finding the Government’s proffered
reasons credible. The court then empaneled the jury and two alternates without
further objection from either side.
      After a 10-day trial, the jury convicted Pratt on the single count of
conspiracy to violate RICO. At sentencing, the court calculated a recommended
sentencing range under the United States Sentencing Guidelines (the
Guidelines) of 78-97 months and sentenced Pratt to 87 months of imprisonment.
Pratt appealed and now asserts four points of error: (1) the court failed to
question the venire adequately about pretrial publicity, (2) the Government used
its peremptory challenges to exclude jurors on the basis of race, (3) the fourth
superseding indictment failed to identify sufficiently the pattern of racketeering
activity underlying the conspiracy, and (4) the district court improperly
calculated the Guidelines sentencing range.         We first address the issues
pertaining to Pratt’s conviction.
                                         II
      Pratt raises two objections to the manner in which the court conducted
voir dire. First, she asserts that the district court failed to question the venire
sufficiently about their biases, making it impossible to determine whether the
seated jury was impartial.     Second, she argues that the court improperly
rehabilitated jurors who were clearly biased and therefore erred in not



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                                        No. 11-31049

dismissing several specific jurors for cause. As a result, Pratt claims she was
deprived of effective use of her twelve peremptory challenges.3
       We review the district court’s voir dire procedures for abuse of discretion.4
The district court has great latitude to conduct voir dire, including the form and
scope of questioning.5 “[O]nly ‘when there is insufficient questioning to allow
defense counsel to exercise a reasonably knowledgeable challenge to unqualified
jurors,’” does the district court abuse its discretion.6             To demonstrate that
questioning about pretrial publicity was inadequate, a defendant must show “(1)
that pretrial publicity about the case raised a significant possibility of prejudice,
and (2) that the district court’s voir dire procedure failed to provide a reasonable
assurance that prejudice would be discovered if present.”7 The parties do not
dispute that pretrial publicity was substantial and raised a significant
possibility of prejudice. The Jeffersons were the subject of significant media
attention, as was Pratt herself, much of it negative. The only question is
whether the district court’s voir dire was sufficient to reveal biased jurors.
       We have resisted categorically requiring any specific voir dire procedures
or questions, and we give great deference to the trial court’s determination of
impartiality.8 It is clear, however, that a court may not rely solely on a juror’s


       3
       The Government was allotted eight strikes and Pratt twelve; both received two more
than mandated. See FED. R. CRIM. P. 24(b)(2).
       4
        United States v. Bieganowski, 313 F.3d 264, 272 (5th Cir. 2002) (citing United States
v. Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995)).
       5
         Id.; see Mu’Min v. Virginia, 500 U.S. 415, 423 (1991) (“[F]ederal judges have been
accorded ample discretion in determining how best to conduct the voir dire.” (quoting Rosales-
Lopez v. United States, 451 U.S.182, 189 (1981)) (internal quotation marks omitted)).
       6
           Bieganowski, 313 F.3d at 272-73 (quoting Beckner, 69 F.3d at 1291).
       7
           Id. at 273 (quoting Beckner, 69 F.3d at 1292) (internal quotation marks omitted).
       8
         See Bieganowski, 313 F.3d at 272-73; see also Mu’Min, 500 U.S. at 425-26 (holding
that a court need not ask questions about the specific content of media exposure unless “the

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                                            No. 11-31049

assertion of impartiality but instead must conduct a sufficiently probing inquiry
to permit the court to reach its own conclusion.9 For example, in United States
v. Davis,10 we held that merely asking potential jurors to raise their hands if
they could not be impartial was not adequate voir dire in light of significant
pretrial publicity of the defendant’s participation in a sensational jail break in
Mexico.11 Other than that single, group question, the district court in Davis only
gave a general admonishment to the venire that they would be required to decide
the case impartially.12 The court asked no follow-up questions and made no
specific inquiries of any individual juror.13 “Without establishing an inflexible
rule” for voir dire, we held that the district court failed to “make sufficient
inquiry into the possibility of prejudice” given the circumstances.14                      Our
subsequent cases have affirmed that such a perfunctory inquiry is insufficient
when there is a reasonable probability of bias,.15


trial court’s failure to ask these questions [would necessarily] render the defendant’s trial
fundamentally unfair”).
       9
        Beckner, 69 F.3d at 1291 (“[B]ecause jurors exposed to pretrial publicity are in a poor
position to determine their own impartiality . . . district courts must make independent
determinations of the impartiality of each juror.”).
       10
            583 F.2d 190 (5th Cir. 1978).
       11
            Davis, 583 F.2d at 196.
       12
            Id.
       13
            Id.
       14
            Id. at 198.
       15
          See United States v. Beckner, 69 F.3d 1290, 1293-94 (5th Cir. 1995) (holding that the
district court’s failure to make any inquiry into the substance or effects of media exposure was
an abuse of discretion and that simply asking the panel as a group whether “anyone . . . could
not be completely fair and impartial” was not sufficient); United States v. Hawkins, 658 F.2d
279, 285 (5th Cir. Unit A 1981) (“[W]hen the nature of the publicity as a whole raises a
significant possibility of prejudice, and a juror acknowledges some exposure to that publicity,
more than the abbreviated questioning conducted in Davis and in the case sub judice is
necessary.”).

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      Recently, the Supreme Court closely examined the sufficiency of voir dire
concerning pretrial publicity in Skilling v. United States.16 Affirming that “[n]o
hard-and-fast formula dictates the necessary depth or breadth of voir dire,” the
Court considered whether the district court’s questioning of potential jurors was
sufficient in the high-profile criminal trial of Jeffrey Skilling, the former
president of Enron Corporation.17 The Court held that it was not an abuse of
discretion for the district court to question potential jurors unilaterally rather
than permitting the lawyers to pose questions.18 Noting that the district court
“did not simply take the venire members who proclaimed their impartiality at
their word,” the Court concluded that the questioning was adequate to “uncover
concealed bias” and gave the court sufficient “face-to-face opportunity to gauge
demeanor and credibility.”19 The district court’s determinations in Skilling were
the “culmination of a lengthy process” that included screening questionnaires,
individual probing on the question of bias, repeated encouragements of candor,
and the opportunity for counsel to ask follow-up questions.20
      We are convinced that the voir dire in this case was sufficient. Unlike the
perfunctory inquiries in Davis and similar cases, the district court’s questioning
here was extensive and probing. The court’s procedures were substantially the
same as those in Skilling.            The potential jurors completed an eight-page
screening questionnaire that included multiple questions about media exposure
and bias. During voir dire, the court questioned all potential jurors individually
and out of the presence of the other potential jurors about their ability to be


      16
           130 S. Ct. 2896 (2010).
      17
           Skilling, 130 S. Ct. at 2917; see id. 2917-23.
      18
           Id. at 2918, 2923.
      19
           Id. at 2922-23.
      20
           Id. at 2919.

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                                         No. 11-31049

impartial. The court followed up with additional questions to each potential
juror who indicated any possibility of bias. Furthermore, the court repeatedly
admonished potential jurors that they must put aside any preconceived beliefs
and decide the case based only on the evidence presented.21 Although the court
did not allow the lawyers to directly question jurors during the individual
questioning, both lawyers were present and could suggest lines of inquiry,
request follow-up questions, and make objections. Like Skilling, this case
involved allegations of complex financial crimes with substantial media coverage
prior to trial and similar risk of bias.22 Arguably the risk of bias was much
higher in Skilling, because the defendant himself was prominently featured in
voluminous pretrial media coverage whereas the publicity in this case focused
primarily on Pratt’s codefendants, the Jeffersons. In sum, we see no evidence
that the district court abused its discretion.
       We reject Pratt’s contention that only a trial lawyer is capable of asking
the sufficiently probing and nuanced questions to uncover bias. It is well
established that voir dire is the district court’s responsibility.23 Although we
have recognized that the participation of counsel for the parties is important, we
have never held that the parties have any right to ask questions directly.24 To
the contrary, the Federal Rules of Criminal Procedure explicitly provide that the


       21
            See Skilling, 130 S. Ct. at 2918 n.21.
       22
         See United States v. Bieganowski, 313 F.3d 264, 273-74 (5th Cir. 2002) (considering
the context of media coverage in evaluating the sufficiency of voir dire).
       23
          See United States v. Cervantes, 706 F.3d 603, 613 (5th Cir. 2013) (“The trial court has
broad discretion to determine who will question potential jurors and what questions will be
asked.” (quoting United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997)) (internal quotation
marks omitted)); see also Gonzalez v. United States, 553 U.S. 242, 250 (2008) (“[T]he presiding
judge has significant discretion over the structure of voir dire. The judge may ask questions
of the jury pool or . . . allow the attorneys for the parties to do so.”).
       24
         See United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977) (noting that the
opportunity to submit questions during voir dire aids counsel in uncovering bias).

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                                            No. 11-31049

court may conduct the questioning of the venire itself and require the court only
to allow counsel to “submit further questions that the court may ask if it
considers them proper.”25 Furthermore, we have repeatedly held that the
presiding judge has broad discretion in determining the scope of questioning.26
Pratt’s counsel was present for voir dire and was able to and did submit
questions. The court complied with the Rules and did not abuse its discretion.
       We also find no merit in Pratt’s argument that she was improperly forced
to use her peremptory challenges to strike potentially biased jurors. Peremptory
challenges are provided for by the Federal Rules of Criminal Procedure and are
not a part of the defendant’s constitutional right to a trial by an impartial jury.27
As a result, “a defendant’s exercise of peremptory challenges . . . is not impaired
when the defendant chooses to use a peremptory challenge to remove a juror who
should have been excused for cause.”28 A defendant who believes that a juror
should be struck for cause faces the “hard choice” of using a peremptory
challenge or accepting the potentially biased juror and arguing a Sixth
Amendment violation on appeal.29 If the defendant chooses the former, then
there is no error unless “the trial court deliberately misapplied the law in order
to force the defendant[] to use a peremptory challenge” or the loss of the



       25
            FED. R. CRIM. P. 24(a)(2)(B).
       26
          See, e.g., Cervantes, 706 F.3d at 613; United States v. Rodriguez, 993 F.2d 1170, 1176
(5th Cir. 1993) (holding that the court abuses its discretion only “when there is insufficient
questioning to produce some basis for defense counsel to exercise a reasonably knowledgeable
right of challenge”).
       27
          United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (explaining that
peremptory challenges “are auxiliary; unlike the right to an impartial jury guaranteed by the
Sixth Amendment, peremptory challenges are not of federal constitutional dimension”); FED
R. CRIM. P. 24(b).
       28
            Martinez-Salazar, 528 U.S. at 317.
       29
            Id. at 315.

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                                   No. 11-31049

peremptory challenge “result[ed] in the seating of any juror who should have
been dismissed for cause.”30       Here, Pratt does not argue that the court
deliberately misapplied the law, and there is no indication that any of the
empaneled jurors was biased.
      Even assuming that the court erred in denying any of Pratt’s motions to
remove jurors for cause, Pratt concedes that she made the hard choice to use her
peremptory strikes to remove those biased jurors. During voir dire, Pratt did not
raise objections to any of the jurors who were actually empaneled although she
did move to disqualify several other potential jurors. When asked whether the
jury and the alternates were acceptable Pratt’s lawyer replied “Yes, Your
Honor.” Whether impartiality in the jury is achieved through disqualification
by the court or through the use of peremptory strikes, the absence of biased
jurors from the panel is all the Sixth Amendment requires.
      In her reply brief, Pratt appears to suggest that a single juror, Pitman,
should not have been seated because of bias. In his initial questionnaire, Pitman
stated that he thought the Jeffersons were “corrupt” and “generally believe[d]
them to be guilty.” However, when asked to explain these statements during
voir dire, Pitman said he had “thought about that question since the
questionnaire” and concluded that he could judge Pratt on the evidence alone.
Furthermore, because Pitman was questioned before the court took over the
entire process, Pratt’s lawyer was able to question Pitman extensively. Pratt’s
lawyer pressed Pitman repeatedly about bias, and Pitman’s answers do not
suggest any hedging on his part. Tellingly, Pratt never moved to strike Pitman
for cause at any point during jury selection and raised no objection to his
selection as the first member of the panel.



      30
         United States v. Sanchez-Hernandez, 507 F.3d 826, 830 (5th Cir. 2007) (citing
Martinez-Salazar, 528 U.S. at 316).

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                                          No. 11-31049

       Nor does our own review of the record compel the conclusion that the
district court committed manifest abuse of discretion in empaneling the twelve
jurors and two alternates who finally decided this case.31 To be sure, several
jurors reported exposure to pretrial publicity, and some even admitted to
forming negative opinions of the Jeffersons and their associates, potentially
including Pratt. Nevertheless, we see nothing in these comments to demonstrate
that the jurors would have been unable to perform their duties.32 The district
court carefully questioned each juror about media exposure and, where
appropriate, asked probing questions to ferret out possible bias. All jurors who
had expressed any potential bias were questioned in detail and affirmatively
stated that they could set aside their preconceptions and apply the law as
instructed. We are mindful that the district court was present to observe the
demeanor and tone of the jurors as they answered and find no reason to second
guess the court’s decision.33
                                                III
       Pratt next challenges the Government’s use of its peremptory strikes,
arguing that the strikes were racially motivated in violation of Batson v.
Kentucky.34 We review for clear error the district court’s determination of




       31
         United States v. Snarr, 704 F.3d 368, 386 (5th Cir. 2013) (“The appellate court
reviews the district court’s ruling on jury impartiality for ‘manifest abuse of discretion.’”
(quoting United States v. Wharton, 320 F.3d 526, 535 (5th Cir. 2003))).
       32
          Id. at 386 (holding that dismissal for cause is appropriate only if “the prospective
juror’s views would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath” (quoting Soria v. Johnson, 207 F.3d 232, 242
(5th Cir. 2000)) (internal quotation marks omitted)).
       33
          Skilling v. United States, 130 S. Ct. 2896, 2923 (2010) (noting that, when reviewing
a district court’s decision to seat a juror over an objection of bias, “the deference due to district
courts is at its pinnacle”).
       34
            476 U.S. 79 (1986).

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                                         No. 11-31049

whether the use of peremptory strikes was racially motivated.35 To succeed in
a Batson challenge, Pratt must first establish a prima facie case that the
Government exercised its peremptory challenges on the basis of race.36 The
burden then shifts to the Government to present a race-neutral explanation for
each strike.37 Once the Government presents race-neutral reasons, the burden
shifts back to Pratt to prove “purposeful discrimination.”38
       We are concerned only with the third step of the Batson analysis. The
parties do not dispute that Pratt established a prima facie case of purposeful
discrimination, and in any event, the Government’s offer of race-neutral reasons
removes the question from our review.39                 Nor does Pratt argue that the
Government failed to present at least one race-neutral reason for each strike.40
Pratt’s sole assertion is that the Government’s nondiscriminatory reasons lack
credibility in light of the stark effect of the Government’s strikes on the
composition of the jury. The Government struck five of the six potential jurors
who were black. In doing so, the Government used more than half of its allotted
peremptory strikes on black jurors, and only one juror of the twelve-member jury
that ultimately convicted Pratt was black.

       35
            United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008).
       36
            Smith v. Cain, 708 F.3d 628, 636 (5th Cir. 2013).
       37
            Id.
       38
            Id.
       39
         United States v. Williams, 610 F.3d 271, 280 (5th Cir. 2010) (“Where, as here, the
prosecutor tenders a race-neutral explanation for his peremptory strikes, the question of
Defendant’s prima facie case is rendered moot.” (quoting United States v. Williams, 264 F.3d
561, 571 (5th Cir. 2001)) (internal quotation mark omitted)).
       40
         See Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (“At this [second] step of
the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a
discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be
deemed race neutral.” (alteration in original) (quoting Hernandez v. New York, 500 U.S. 352,
360 (1991) (plurality opinion))).

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                                         No. 11-31049

       When challenged, the Government offered reasons for each of the five
black jurors it struck—Graves, Blanchard, Allen, Williamson, and Cosse. The
Government claimed that juror Graves had expressed a positive view of Pratt as
someone he admires and that he had communicated with his stepfather about
“people who work in city hall,” potentially including Pratt. The Government also
claimed that Graves gave a “bizarre nonresponsive answer” when asked about
possible prior contact with Pratt. Next, the Government claimed that juror
Blanchard was likely to have an affinity for Pratt, given that both had been
employees of the New Orleans Parish School Board. Like Blanchard, Pratt had
been a teacher. The Government also claimed that Blanchard made an “um-
hump” noise when the deputy chief of the Criminal Division introduced himself,
which the Government interpreted as negative. The Government asserted that
juror Allen appeared to have a negative attitude concerning jury service based
on body language and had some child-care issues that the Government felt
exacerbated his attitude. The Government then noted that juror Williamson was
involved in a dispute with the IRS and had previously employed an attorney who
the prosecutor knew had some “interaction with the federal government” that
the prosecutor could not divulge but suggested was negative. Finally, the
Government claimed that juror Cosse made statements suggesting that he was
dissatisfied with the way the criminal justice system had treated his brother who
was sentenced to life in prison for a shooting that his brother claimed was in
self-defense.
       Because the district court’s decision rests primarily an evaluation of the
prosecutor’s credibility,41 we will not disturb the district courts ruling “in the



       41
          United States v. Turner, 674 F.3d 420, 436 (5th Cir.) (“Given the subjective nature
of jury selection, the district court’s determination is likely to be based ‘largely on the court’s
evaluation of the credibility of counsel’s explanation.’” (quoting United States v. Perkins, 105
F.3d 976, 978 (5th Cir. 1997))), cert. denied, 133 S. Ct. 302 (2012).

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                                         No. 11-31049

absence of exceptional circumstances.”42                  “[T]he district court ha[s] the
advantage[] of observing the voir dire . . . and being able to consider the
demeanor of the prosecutor as he [makes] his explanation.”43 Circumstances
that call the Government’s credibility into question include the failure to engage
in meaningful questioning regarding the issue on which its allegedly
nondiscriminatory reason is based and failure to strike otherwise similarly-
situated jurors of a different race.44 “[I]mplausible or fantastical” reasons are
also evidence of pretext.45
       Pratt first points to three nonblack jurors whom the Government did not
strike and argues that they were similarly situated to Cosse and Blanchard.46
Like Cosse, jurors Baum and Federico both had potentially negative views of law
enforcement based on prior experiences with the criminal justice system.
Baum’s two stepsons had been convicted of passing bad checks and a state drug
offense, respectively, and Federico had been arrested for petty theft in 1986.
Juror Bourgeois had the same work background as Blanchard. We are not
persuaded by these comparisons.
       Although Baum’s two stepsons had been convicted of crimes and Federico
had been arrested, neither juror expressed any dissatisfaction with the police or


       42
            Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (quoting Hernandez, 500 U.S. at 366).
       43
            Turner, 674 F.3d at 436.
       44
          Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009) (“The State’s failure to
question the juror on that topic is some evidence that the asserted reason was a pretext for
discrimination.” (citing Miller-El v. Dretke, 545 U.S. 231, 246 (2005))); id. (“If the State asserts
that it struck a black juror with a particular characteristic, and it also accepted nonblack
jurors with that same characteristic, this is evidence that the asserted justification was a
pretext for discrimination, even if the two jurors are dissimilar in other respects.” (citing
Miller-El, 545 U.S. at 241)).
       45
            Id.
       46
         Pratt does not provide any comparative examples regarding Graves, Allen, or
Williamson and our review of the record revealed none.

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                                       No. 11-31049

the criminal justice system and both stated that their respective experiences
would not affect their ability to serve on the jury. In contrast, Cosse made
statements that plausibly suggested animosity towards the criminal justice
system. It is true that the Government did not seek to have the court ask any
follow-up questions, but the differences are sufficient to explain the
Government’s choice to strike Cosse but not Baum and Federico.                       Pratt’s
comparison of Bourgeois to Blanchard is similarly unconvincing. Although
Bourgeois did have a career in education, she was employed by the Archdiocese
of New Orleans, not the New Orleans Parish School Board. Only Blanchard was
employed by the same organization as Pratt. The Government had a plausible
reason for distinguishing between the two, and we find no justification for
reversing the district court’s conclusion that the Government’s explanation was
credible.
       Pratt also implicitly argues that the Government’s race-neutral reasons
are implausible because they are unsupported by the evidence. However, other
than repeatedly expressing disbelief that there could be any nonbiased
explanation for striking five of the six black jurors, Pratt does not offer specific
arguments as to why any of the Government’s stated reasons were implausible
or fantastical and merely argues a different interpretation of the record. Pratt’s
argument boils down to an assertion that the Government should not be believed
because the Government struck five of the six African-American jurors and that
“[h]owever plausible or implausible the explanations were here, the numbers do
not lie.”47 Although it is true that the raw numbers are a factor to be considered,

       47
           Pratt also repeatedly points out that her lawyer requested a ten-minute break to
review his notes in order to rebut the Government’s race-neutral reasons for striking the
jurors. Although she implies that the court’s refusal to grant the brief recess constituted an
error, she cites no authority to support that implication and makes no argument as to why the
lack of a break at the time would affect her argument on appeal. Furthermore, Pratt neglects
to acknowledge that the court granted a five-minute break immediately after her lawyer first
indicated the intention to raise a Batson challenge.

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                                           No. 11-31049

Pratt cites no case in which this court has held that a district court committed
clear error in crediting the prosecutor’s race-neutral reasons based solely on such
evidence.         Because Pratt offers no support for her contention that the
Government’s reasons are “implausible or fantastical,” this argument fails as
well.
                                                 IV
        We next address Pratt’s argument that the fourth superseding indictment
charging her was constitutionally deficient because it “omitted all references to
specific acts of racketeering activity,” leaving only “generic references to the mail
fraud and money laundering statutes.” Pratt complains that it is impossible to
determine the pattern of racketeering activity that she was charged with
conspiring to commit, and therefore she was unable to mount an effective
defense and is not protected from double jeopardy.
        We review the sufficiency of an indictment de novo.48                         To pass
constitutional muster, an indictment must “allege[] every element of the crime
charged and in such a way as to enable the accused to prepare his defense and
to allow the accused to invoke the double jeopardy clause in any subsequent
proceeding.”49 Although “[i]t is generally sufficient that an indictment set forth
the offense in the words of the statute itself,” the indictment must also “be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offense.”50




        48
             United States v. Ratcliff, 488 F.3d 639, 643 (5th Cir. 2007).
        49
          Id. (quoting United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002))
(internal quotation marks omitted).
        50
             Hamling v. United States, 418 U.S. 87, 117 (1974).

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                                         No. 11-31049

       Pratt was charged under 18 U.S.C. § 1962(d) with conspiring to violate a
substantive RICO provision, § 1962(c).51 The elements of a conspiracy under
§ 1962(d) are simply “(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.”52 The defendant need not be one of the people
who agreed to commit the substantive offense.53 Section 1962(c) makes it
“unlawful for any person employed by or associated with any enterprise . . . to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity.”54
       The 35-page fourth superseding indictment charging Pratt was
constitutionally sufficient. It “alleges every element of the crime charged” using
language that tracks the relevant statutory provisions and includes “a statement
of the facts and circumstances” that constitute conspiracy to conduct the affairs
of the Enterprise, members of which engaged in a “pattern of racketeering
activity.”55 It alleges the existence of an enterprise comprising Pratt, the



       51
         18 U.S.C. § 1962(d) (“It shall be unlawful for any person to conspire to violate any of
the provisions of subsection (a), (b), or (c) of [§ 1962].”).
       52
         United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005) (emphasis added) (quoting
United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998)) (internal quotation marks
omitted).
       53
            Id. at 296.
       54
            18 U.S.C. § 1962(c).
       55
            A “‘pattern of racketeering activity’ requires at least two acts of racketeering
activity” that occur within ten years of each other. 18 U.S.C. § 1961(5). An act of racketeering
activity is defined in part as any act that is indictable under enumerated provisions of the
criminal code. Id. § 1961(1)(B). In this case, the indictment alleges that the “pattern of
racketeering activity” consisted of multiple, specific acts of mail fraud, in violation of 18 U.S.C.
§ 1341, and of money laundering, in violation of § 1956. In order to constitute a pattern, the
predicating acts must also be connected in a way that shows a “threat of continuing activity.”
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). The activities alleged in this case meet
this standard. See id. 239-41.

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                                       No. 11-31049

Jeffersons, and related nonprofit organizations whose purpose “was to exercise
and preserve power over and within the government of the State of Louisiana,
the City of New Orleans, Orleans Parish, and elsewhere, for the financial and
political benefit of [the Enterprise].” It further alleges that Pratt (along with the
Jeffersons and “others known . . . and unknown”) fraudulently funneled state
and federal grant money to nonprofit entities they controlled; established,
maintained, and controlled bank accounts to further the scheme; and maintained
false accounts and submitted falsified paperwork in connection with the scheme.
       Contrary to Pratt’s claim, the indictment need not contain formal charges
of the underlying racketeering activities or articulate the evidence that will be
used to prove the allegations.56            The Constitution requires only enough
specificity to allow the defendant to defend against the allegations, and the
indictment meets that standard. The indictment identifies the people, nonprofit
entities, government programs, funds, and bank accounts involved in specific
acts of money laundering and mail fraud. It describes in detail thirteen specific
instances of misappropriation of funds or resources undertaken by the criminal
Enterprise, including factual details that, if proven, would constitute mail fraud
and money laundering. Finally, the indictment contains numerous allegations
of conduct by Pratt that demonstrate that she agreed to the objective of the
Enterprise, including her relationship with the Jeffersons, efforts to steer money
to the Enterprise, and receipt of benefits from the misappropriated funds. In
sum, the indictment more than adequately alleges factual circumstances




       56
          See United States v. Sutherland, 656 F.2d 1181, 1197 & n.12 (5th Cir. Unit A 1981)
(holding that a RICO conspiracy indictment was sufficient although it did not identify specific
dates, locations, or additional details besides the participants and an outline of the alleged
bribery scheme).

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                                         No. 11-31049

sufficient to prove that two or more people agreed to violate RICO and that Pratt
knew of and agreed to the overall objective of the RICO offense.57
       For the same reasons, the indictment is sufficient to protect Pratt from a
second prosecution for the same crime. The Double Jeopardy Clause of the
Constitution “protects against a second prosecution for the same offense after
acquittal, against a second prosecution for the same offense after conviction, and
against multiple punishments for the same offense.”58 Pratt presumably fears
a second prosecution for precisely the same crime—conspiracy to violate RICO
under § 1962(d)—based on the same underlying racketeering activities.59
       It is important to clarify that Pratt does not challenge the sufficiency of the
evidence used to convict her. In other words, she does not argue that there was
insufficient evidence of a pattern of racketeering activity. Instead she argues
that it is impossible to determine on what conduct the jury based its verdict. In
other words, Pratt argues that the indictment impermissibly alleged more than
one pattern of racketeering activity. Pratt misunderstands the nature of the
indictment’s role in protecting her against double jeopardy.
       As discussed above, the indictment lays out a detailed description of
conduct that, if proved, demonstrates that (1) two or more persons agreed to
engage in a pattern of racketeering activity and (2) Pratt agreed to further the
objective of that pattern. Having been convicted, Pratt is protected by the
Constitution from a second prosecution for the same crime based on the same

       57
            See Delgado, 401 F.3d at 296.
       58
            United States v. Phillips, 664 F.2d 971, 1005 (5th Cir. Unit B 1981).
       59
         To the extent Pratt’s argument contemplates a future prosecution for a charge other
than § 1962(d), it is unlikely she would be protected by double jeopardy in any event. We have
held that separate prosecutions for conspiracy to violate RICO and for substantive RICO
violations based on the same underlying racketeering activities do not violate the Double
Jeopardy Clause. United States v. Martino, 648 F.2d 367, 383 (5th Cir. 1981). Nor is
successive prosecution in different proceedings for separate crimes based on the same conduct
prohibited as a general matter. United States v. Dixon, 509 U.S. 688, 705 (1995).

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                                          No. 11-31049

factual allegations. That the jury could have found the existence of a pattern of
racketeering activity based on some or all of the indictment’s factual allegations
is of no moment. An indictment is not constitutionally deficient simply because
it includes more factual allegations than are required to prove every element of
the crime charged.60 There is no merit in Pratt’s assertion that she would be
unable to raise a Double Jeopardy argument were she ever prosecuted a second
time for conspiracy to violate RICO predicated on that same conduct alleged in
the indictment.
                                               V
       Pratt challenges her sentence. We first note that this case comes to us in
an unusual procedural posture. Two types of racketeering activity in violation
of 28 U.S.C. § 1962 were alleged—mail fraud and money laundering. The
district court calculated the sentencing guidelines range of imprisonment based
on money laundering. As we will discuss below, it appears that the sentencing
guidelines range should have been based on mail fraud. Pratt has not, however,
argued in her brief that the district court erred in using a money laundering
offense to calculate the applicable Guidelines range.                 She has accordingly
waived61 any contention that the district court erred in using a money
laundering offense rather than a mail fraud offense in calculating the advisory
sentencing guidelines range. Nevertheless, in order to determine if there was



       60
          See United States v. Mauskar, 557 F.3d 219, 225 (5th Cir. 2009) (“The allegation in
a single count of a conspiracy to commit several crimes is not duplicitous, for [t]he conspiracy
is the crime, and that is one, however diverse its objects.” (alteration in original) (quoting
United States v. Cooper, 966 F.2d 936, 939 (5th Cir. 1992)) (internal quotation marks
omitted)); see alsoUnited States v. Hedgepeth, 434 F.3d 609, 612 (3d Cir. 2006) (“As long as the
crime and the elements of the offense that sustain the conviction are fully and clearly set out
in the indictment, the right to a grand jury is not normally violated by the fact that the
indictment alleges more crimes or other means of committing the same crime.” (quoting United
States v. Miller, 471 U.S. 130, 136 (1985))).
       61
            See FED. R. APP. P. 28(a)(9)(A).

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                                        No. 11-31049

plain error, we will consider the highest range that the Government contends
was the correctly calculated range, as we explain further below.
       Sentencing for a conviction under 28 U.S.C. § 1962 is addressed by
Guidelines section 2E1.1.62 Because a RICO offense necessarily involves conduct
by someone, although not necessarily the defendant, that would itself be a
separate offense (i.e. the “underlying racketeering activity”), section 2E1.1
mandates that the district court select a base offense level that is the greater of
19 or the highest calculated offense level applicable to the offense(s)
corresponding to the underlying racketeering activity.63                   If the underlying
racketeering activity comprises more than one offense, each should be treated
as a separate count of conviction for the purposes of calculating the offense
level.64 “The racketeering act that yields the greatest offense level is [then] used
to determine the guideline range.”65 In other words, section 2E1.1 requires the
district court to calculate independently the total offense level of each separate
underlying offense and then select whichever is greatest (or 19, if that number
is greater).66
       Unlike most other sections in Chapter Two, section 2E1.1 of the Guidelines
does not provide for adjustments based on special offense characteristics,
presumably because the district court will have already calculated the special


       62
            U.S. SENTENCING GUIDELINES MANUAL § 2E1.1.
       63
            Id.
       64
            Id. § 2E1.1 cmt. n.1.
       65
       United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); see U.S. SENTENCING
GUIDELINES MANUAL § 2E1.1 cmt. n.1.
       66
          See Posada-Rios, 158 F.3d at 880-81 (holding that the district court’s application of
the total offense level of the underlying racketeering activity, murder, was proper under
section 2E1.1); see also United States v. Mouzone, 687 F.3d 207, 220 (4th Cir. 2012) (affirming
the district court’s calculation of the underlying racketeering activity’s total offense level for
the purposes of section 2E1.1).

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                                         No. 11-31049

offense characteristics applicable to the offense constituting the underlying
racketeering activity.67 Convictions for mail fraud and money laundering—the
two underlying racketeering activities alleged in this case—are sentenced under
sections 2B1.1 and 2S1.1, respectively.
       Although the Presentencing Report (PSR) calculated an advisory
sentencing range of 70 to 87 months of imprisonment based on mail fraud and
enhancements that are applicable in mail fraud cases, and recommended a
sentence of 70 months, the district court concluded that money laundering, not
mail fraud, was the proper underlying racketeering activity for the purposes of
calculating the Guidelines range under section 2E1.1. The court observed that
money laundering has a base offense level of 8 and mail fraud has a base offense
level of 7 and held that it was obligated to select the higher number. The court
then applied the enhancements that the PSR had calculated for the mail fraud
offense, which resulted in a total offense level of 28 and a sentencing range of 78
to 97 months. The court then sentenced Pratt to 87 months, which it described
as “a mid-level sentence, perhaps to some extent to the high level.”
       In her appeal, Pratt contends that the district court erred by applying a
two-level enhancement pursuant to Guidelines section 2B1.1(b)(8)(A)68 and that
the court miscalculated the amount of “laundered funds” in determining the base
offense level for money laundering pursuant to section 2S1.1(a)(2).                            The
guideline applicable to money laundering, section 2S1.1, directs the court to

       67
           Compare U.S. SENTENCING GUIDELINES MANUAL § 2E1.1 with id. § 2B1.1(b)
(articulating the special offense characteristics applicable to crimes of theft), and id. § 2S1.1(b)
(articulating the special offense characteristics applicable to crimes of money laundering).
       68
            U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(8), which provides:

       (8) If (A) the defendant was convicted of a Federal health care offense involving
       a Government health care program; and (B) the loss under subsection (b)(1) to
       the Government health care program was (i) more than $1,000,000, increase by
       2 levels; (ii) more than $7,000,000, increase by 3 levels; or (iii) more than
       $20,000,000, increase by 4 levels.

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                                       No. 11-31049

calculate the base offense level as “8 plus the number of offense levels from the
table in section 2B1.1 (Theft, Property Destruction, and Fraud) corresponding
to the value of the laundered funds.”69 “‘Laundered funds’ means the property,
funds, or monetary instrument involved in the transaction, financial transaction,
monetary transaction, transportation, transfer, or transmission in violation of
18 U.S.C. [§] 1956 or 1957.”70 However, the district court did not determine the
value of the laundered funds by calculating the amount “involved in the
transaction(s)” that constituted money laundering. Instead, the district court
calculated the amount of “loss” based on the value of all of the goods and services
misappropriated, and used that amount to determine the enhancement by
reference to the table in section 2B1.1. Although that would be the proper
method for applying the table to a crime of theft under section 2B1.1 (such as
mail fraud), it does not accord with the instructions in section 2S1.1, which
require the district court to determine the amount of funds actually laundered.
The court also erred in applying the two-level enhancement under section
2B1.1(b)(8)(A). This enhancement is found under special offense characteristics
in section 2B1.1 and is not applicable to a crime that falls under section 2S1.1.
      At the sentencing hearing in the district court, Pratt did not object to the
section 2B1.1(b)(8)(A) enhancement or the implicit determination that the
amount of “laundered funds” equaled the amount of loss. The Government
contends, and we agree, that our review of these issues is for plain error. Under
that standard of review, we will reverse a sentence only “(1) if there was error,
(2) if it was plain, (3) if the error affects substantial rights, and (4) if allowing
that error to stand seriously affects the fairness, integrity, or public reputation




      69
           U.S. SENTENCING GUIDELINES MANUAL § 2S1.1(a)(2) (emphasis added).
      70
           Id. § 2S1.1 cmt. n.1 (emphasis added).

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                                         No. 11-31049

of judicial proceedings.”71 A misapplication of the unambiguous instructions of
the Guidelines is error that was plain.72 Therefore, relief depends on whether
the error affected Pratt’s substantial rights and seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
       The Government asserts that if the district court had correctly calculated
the advisory Guidelines range based on mail fraud, rather than money
laundering, the advisory Guidelines range would have been 70 to 87 months of
imprisonment. Since the 87-months’ sentence would still be within that range,
the Government argues that Pratt has not demonstrated plain error. An error
in the Guidelines calculation affects a defendant’s substantial rights only if there
is “a reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.”73                        A reasonable
probability of a lesser sentence is presumed when “the incorrect range is
significantly higher than the true Guidelines range, and . . . the defendant is
sentenced within the incorrect range.”74              However, “when the correct and
incorrect ranges overlap and the defendant is sentenced within the overlap, ‘we
do not assume, in the absence of additional evidence, that the sentence affects
a defendant’s substantial rights.’”75
       There is “additional evidence” that Pratt’s substantial rights were affected.
The transcript of the sentencing hearing reflects that the district court chose a
sentence of 87 months of imprisonment because it was within what the district

       71
            United States v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012).
       72
           See United States v. Olano, 507 U.S. 725, 732-33 (1993) (“Deviation from a legal rule
is ‘error.’”); id. at 734 (“‘Plain’ is synonymous with ‘clear’ or . . . ‘obvious.’”).
       73
        United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam) (citing
United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir. 2010)).
       74
            Id.
       75
            Id. at 290 (emphasis omitted) (quoting Blocker, 612 F.3d at 416).

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                                  No. 11-31049

thought was the correctly calculated advisory guidelines range. The district
court explained to the defendant that he felt that it was appropriate to apply the
guidelines and not a variance or a non-Guidelines sentence. The district court
also stated on the record that it was choosing a sentence within the middle of the
Guidelines range as the appropriate sentence, indicating that the Guidelines
range calculated by the district court was a primary factor in the selection of the
87-months’ sentence as within a range of 78-97 months. By contrast, the 87-
months’ sentence is the highest sentence under a range of 70 to 87 months’ of
imprisonment, which is the highest range that the Government says applies. A
middle-of-the-Guidelines sentence under a 70 to 87 months’ range would be
approximately 78 to 79 months, which is 8 to 9 months shorter than the prison
term selected by the district court. Moreover, we cannot say that a range of 70
to 87 months is the correctly calculated range based on the record before us.
There may be issues raised when mail fraud, rather than money laundering, is
used as the basis for calculating the Guidelines range that might result in a
lower range than 70 to 87 months.
      As discussed above, section 2E1.1 instructs the sentencing court to select
a base offense level from the greater of 19 or the highest offense level of the
underlying racketeering offenses. The PSR started with this base offense level
and then applied a 16-level enhancement under section 2B1.1(a) based on a
calculated loss of over $1 million, a 2-level enhancement under section
2B1.1(b)(8)(A) because Pratt “misrepresented that she was acting on behalf of
a charitable, religious, or political organization or government agency,” and a 2-
level enhancement because Pratt “abused a position of public or private trust”
pursuant to § 3B1.3. The resulting a total offense level of 27 resulted in a
sentencing range of 70 to 87 months, and the PSR recommended a sentence of
70 months. We are not in a position to retrace all of the steps required to



                                        25
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                                 No. 11-31049

determine if the PSR correctly calculated the applicable sentencing range.


                             *        *         *
     Pratt’s conviction is AFFIRMED.        The sentence is VACATED and
REMANDED for further proceedings.




                                     26
