                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0818n.06

                             Nos. 11-1843, 11-2163, 11-2450, 11-2055

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                      FILED
UNITED STATES OF AMERICA,                               )                       Sep 09, 2013
                                                        )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
                                                        )    THE EASTERN DISTRICT OF
SEAN DONOVAN, ROBERT FLOWERS,                           )    MICHIGAN
JOHNNY JARRELL, and LEONARD MOORE,                      )
                                                        )
       Defendants-Appellants.                           )
                                                        )
                                                        )


Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

       SILER, Circuit Judge. Leonard “Bo” Moore, Sean Donovan, Robert Flowers, and Johnny

Jarrell, members of the Highwaymen Motorcycle Club (“HMC”), were charged and convicted of

numerous crimes including violations of the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); violations of the Violent

Crimes in Aid of Racketeering Act (“VICAR”), 18 U.S.C. § 1959(a)(3); drug conspiracy, 21 U.S.C.

§§ 841 and 846; conspiracy to transport stolen motorcycles, 18 U.S.C. §§ 2313 and 371; and illegal

use of firearms, 18 U.S.C. § 924(c). They appeal their convictions and resulting sentences, arguing

numerous errors by the district court during the trial, pre-sentencing, and sentencing phases. For the

following reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further

proceedings.
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

                                                  I.

        HMC is a multi-state organization with its national headquarters located in Detroit, Michigan.

In its prime, HMC included approximately ten chapters, mostly in and around Detroit. The Detroit

chapter served as national headquarters and its president served as HMC’s highest-ranking member.

Each chapter, with its own officers and internal leadership structure, operated within the hierarchy

of the organization as a whole.

        HMC members were required to pay weekly dues and many met their obligations by selling

drugs. One of HMC’s drug dealers was Bobby Burton who both sold cocaine to and purchased it

from other HMC members (the “Burton conspiracy”). Flowers and Donovan supplied Burton with

cocaine and also sold cocaine directly to Burton’s distributors when his supply was low.

        Aref Nagi, another HMC drug dealer, who primarily sold marijuana and cocaine, relied on

Jarrell and Moore to distribute his drugs within HMC generally (the “Nagi conspiracy”), and he also

distributed drugs to Flowers, who then redistributed them to the HMC West Side chapter. On

numerous occasions, the FBI recorded telephone conversations in which Nagi, Jarrell, and Moore

discussed the sale and purchase of drugs. At trial, several HMC members testified generally

regarding the Nagi conspiracy and specifically that Moore distributed drugs in connection with the

conspiracy. One HMC member, Gerald Peters, specifically recalled seeing Moore share marijuana

with other members in the HMC clubhouse. Recorded phone calls also revealed discussions of

Moore’s small marijuana purchases from Jarrell and his delivery of small amounts of cocaine to

Nagi.



                                                 -2-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

       In addition to trafficking drugs, some HMC members stole motorcycles while attending out-

of-town events, transported them back to Detroit for reassembly, and sold them for income. Moore

regularly participated in this scheme, including his assisting HMC in stealing motorcycles with a

combined estimated value of $463,000 during a trip to Myrtle Beach, South Carolina. Jarrell and

Moore regularly generated income this way and the FBI eventually recovered stolen motorcycles

from both of their homes.

       When drug debts were left unpaid or when persons were suspected of exposing HMC’s

involvement in theft, members became violent. On one such occasion, HMC members threatened

to kill Alan Kirchoff for failing to pay for a purchase. Kirchoff contacted the police and provided

a written statement detailing the events. Later, Moore warned Kirchoff that if he went to the police,

Moore couldn’t promise that he wouldn’t “get hurt and hurt bad.” On another occasion, when

Moore thought that someone had exposed him to the police for his involvement with stolen

motorcycles, he confronted the man at a bar, attacked him with a chair, and beat him up. Perhaps one

of HMC’s most notable violent performances resulted from an encounter with one of Moore’s

childhood enemies. Moore and other HMC members confronted Charles Walker outside of a bar

and beat him to the ground. As Walker was being beaten, he heard gunshots and quickly ran to his

uncle’s house a few blocks away. Once inside, Walker received a phone call from Moore who

threatened to “come shoot his house up.” That night, trucks approached the house and HMC

members fired fifteen rounds into the residence. Following the shooting, Moore continued to

threaten Walker and other HMC members grew nervous that Moore’s erratic behavior would attract

the attention of law enforcement.

                                                -3-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

       The FBI’s entire investigation of HMC included accounts of these incidents, over 60

executed search warrants, and thousands of wiretaps. In 2009, the United States filed its Second

Superseding Indictment against 43 individuals, including Defendants, alleging acts of racketeering,

drug possession and trafficking, conspiracy, assault, firearm possession, and obstruction of justice.

Defendants proceeded to a jury trial during which several HMC members, who had cooperated with

the FBI, testified against them and provided detailed accounts of criminal activity within HMC. For

example, Burton testified to purchasing cocaine “a couple ounces” at a time from Donovan on

roughly 20 occasions. However, on cross-examination, he noted that his inclusion of Donovan had

been an afterthought. HMC member Gerald Peters testified that he heard from another member that

Donovan sold cocaine. He also testified that he had never witnessed any of these transactions

firsthand. Another HMC member, William Bridges, testified that he and another HMC member

traveled to Donovan’s home to purchase cocaine and, while he later saw the cocaine that had

presumably been purchased, he did not witness the transaction firsthand. HMC member Louis

Fitzner also testified regarding numerous acts of thievery and drug trafficking, including his purchase

of marijuana from Flowers.

       Moore was convicted of violating RICO (Count 1), RICO conspiracy (Count 2), VICAR in

relation to the Walker assault (Count 9), conspiracy to transport stolen property (Count 15),

conspiracy to distribute controlled substances (Count 19), and use of a gun in relation to his VICAR

violation (Count 33). Jarrell and Flowers were both convicted of conspiracy to violate RICO (Count

2) and conspiracy to possess with intent to distribute controlled substances (Count 19). Donovan



                                                 -4-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and

846 (Count 17).

                                                 II.

A. Leonard “Bo” Moore.

       Moore alleges the following errors on appeal: (1) the district court erred in denying his

request for a jury instruction and special verdict form requiring the finding of a drug type and

quantity for the conspiracy charge; (2) he was sentenced above the maximum punishment for

conspiracy to distribute controlled substances because Viagra is not a controlled substance; (3)

insufficiency of the evidence; (4) the district court gave an improper instruction on aiding and

abetting; (5) inconsistent and prejudicial testimony was admitted and the district court denied

Moore’s request for an instruction on the use of such evidence; and (6) the district court

miscalculated the Sentencing Guidelines and sentenced Moore for a discharged firearm which was

not charged in the indictment or decided by the jury. Moore requests that his convictions on all

counts, except for Count 15, be vacated and dismissed or, in the alternative, that they be vacated and

remanded for a new trial or resentencing. The United States concedes that this court should grant

a limited remand to reduce Moore’s sentence on Count 19 to the generic statutory maximum for

marijuana under 21 U.S.C. § 841(b)(1)(D). Otherwise, the United States insists that Moore’s

arguments lack merit.

       1. Jury instructions.

       We must first determine whether the district court erroneously denied Moore’s request for

an instruction and special verdict form requiring a finding on drug type and quantity for the charges

                                                -5-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

of drug conspiracy and racketeering. Because Moore did not object to the jury instruction that

produced a general verdict at his trial, his claim is reviewed for plain error. See United States v.

Olano, 507 U.S. 725, 731 (1993). Under plain error, reversal is proper only if the error “seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 732.

       Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Moore argues that because issues which

increase the maximum penalty for a crime must be proven beyond a reasonable doubt, the district

court should have granted his request for an instruction and special verdict form regarding drug type

and quantity and its failure to do so is grounds for reversal of his convictions. Although Apprendi

does prescribe that the failure to instruct a jury to determine both the type of drug and the drug

quantity involved amounts to plain error, we must still find that the error seriously affected the

fairness, integrity, or public reputation of judicial proceedings before reversal is proper. United

States v. Cleaves, 299 F.3d 564, 568-69 (6th Cir. 2002).

       At trial, the evidence presented regarding the type and quantity of drugs involved was

overwhelming. First, although it erroneously listed Viagra as a controlled substance, Count 19 of

the indictment clearly indicates which drugs were involved in the conspiracy. Second, the district

court determined the specific quantities of drugs involved during the separate, yet related, trial of

other HMC members. Evidence of these substances was plentiful and showed that Moore was a

high-ranking member of the Nagi conspiracy in which he sold large amounts of marijuana and was

also involved in cocaine sales. Third, the evidence presented against Moore focused primarily on

marijuana and, to a lesser degree, cocaine. In fact, Moore cites no specific instance during trial when

he was linked to trafficking Viagra. It is nearly impossible to accept that a rational factfinder would

                                                 -6-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

have convicted Moore for his involvement in a conspiracy involving Viagra. For these reasons,

Moore cannot establish that the instructional error warrants reversal of his conviction.

       Moore also argues that the singular reference to “the controlled substance” in the jury

instructions suggested that the jury only needed to find a conspiracy to distribute one of the

controlled substances in the district court’s listed substances which included cocaine, marijuana,

steroids, Vicodin, Ecstacy, and Viagra. Again, as the evidence presented against him at trial focused

overwhelmingly on his involvement with marijuana and, to some extent, cocaine, the instructions

did not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and they

do not warrant reversal of Moore’s conviction.

       2. Viagra as a controlled substance.

       Because Viagra is not a controlled substance, it may not be the object of a drug conspiracy

under 21 U.S.C. §§ 841 and 846. To the extent that the jury instructions stated otherwise, they were

incorrect. Moore did not object to the instructions in this regard, so we also review them for plain

error. United States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008).

       In Hedgpeth v. Pulido, the Supreme Court rejected a rule requiring reversal in cases like the

instant one, where the jury was “instructed on multiple theories of guilt, one of which was

improper.” 555 U.S. 57, 61 (2008). Instead, the Court held that such errors are subject to the same

type of harmless error analysis as other instructional errors. Id. (citing Neder v. United States, 527

U.S. 1, 11(1999)). We must therefore determine whether the erroneous instruction amounts to

harmless error.



                                                 -7-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

       Although the jury instructions incorrectly stated that Viagra is a controlled substance, they

also correctly stated that marijuana, cocaine, ecstacy, and Vicodin are controlled substances. Thus,

if the jury convicted Moore of conspiring to distribute any of these, his conviction should stand.

Under this analysis, Moore’s argument fails because, as explained above, he was not implicated by

the evidence presented at trial regarding Viagra. He does not identify one instance at trial where

evidence connected him to the trafficking of Viagra. Rather, evidence concerning Moore’s

participation in the Nagi conspiracy focused only on marijuana and cocaine. For these reasons, the

instruction, while erroneous, does not warrant reversal of his convictions.

       Nevertheless, Moore should be resentenced on Count 19 employing a five-year statutory

maximum sentence. The evidence presented against Moore focused overwhelmingly on marijuana

and, to a lesser degree, cocaine. A defendant may not be sentenced under the statutory penalties for

a cocaine conspiracy following a general jury verdict on a conspiracy to distribute both cocaine and

marijuana as the jury may have found only a marijuana conspiracy. United States v. Dale, 178 F.3d

429 (6th Cir. 1999). This is because the maximum statutory sentence for conspiring to distribute a

controlled substance depends on the substance being distributed. 21 U.S.C. § 846. In the case of

a general verdict, this information is lacking, and the district court may not impose a sentence

exceeding the shortest maximum sentence for any one of the pertinent violations. Dale, 178 F.3d

at 432. Therefore, Moore should be resentenced applying a statutory maximum of five years

pursuant to 21 U.S.C. § 841(b)(1)(D). The United States agrees that resentencing in this narrow

regard is proper.



                                                -8-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

       3. Moore’s motions for re-trial or judgment of acquittal.

       Moore next argues that the district court erroneously denied his motions for a new trial or

judgment of acquittal on all counts of his convictions, except for Count 15. A denial of a motion for

a judgment of acquittal based upon the insufficiency of evidence presented is reviewed de novo.

United States v. Morales, 687 F.3d 697, 700 (6th Cir. 2012). Thus, we must determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of Moore’s crimes beyond a reasonable doubt. United States

v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007).

               a. Conspiracy conviction.

       Moore first challenges the weight and sufficiency of evidence supporting his conviction for

a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846. Evidence was

presented that Moore was part of a “tight crew” in the Nagi conspiracy which involved mostly

marijuana trafficking. Although his involvement in the “crew” could have indicated a mere

superficial relationship with Nagi without involvement in the drug business, a rational factfinder

could have concluded otherwise because of the evidence presented of his particular involvement in

these activities. Moore threatened Kirchoff and pressured him to pay his “dope bill.” He also

intimidated him into keeping quiet about their dealings and interactions. His conviction should

therefore stand.

               b. RICO and RICO conspiracy convictions.

       Moore next challenges the weight and sufficiency of evidence supporting his RICO

conviction in violation of 18 U.S.C. §§ 1962(c) and 1963(a). To establish a RICO violation, the

                                                -9-
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

government must prove (1) the existence of an enterprise affecting interstate commerce; (2) the

defendant’s association with the enterprise; (3) the defendant’s participation in the conduct of the

enterprise’s affairs; and (4) a connection between the participation and a pattern of racketeering

activity. United States v. Fowler, 535 F.3d 408, 418 (6th Cir. 2008). Moore argues that the third

and fourth elements were not satisfied. In order to meet these elements, the United States must have

proven that Moore participated in the operation or management of the enterprise either by making

decisions on behalf of the enterprise or knowingly carrying them out, and that he completed a

minimum of two predicate acts within a ten-year period in furtherance of the enterprise. Id. at 419;

18 U.S.C. § 1961(5).

       Ample evidence of Moore’s participation and pattern thereof was presented at trial. He led

other HMC members in stealing motorcycles on a visit to Myrtle Beach, which benefitted several

HMC leaders. In addition, his role in the Nagi conspiracy demonstrated sufficient involvement in

HMC’s organized drug-trafficking affairs, as he carefully planned and implemented theft and drug

schemes. These facts support Moore’s substantive RICO convictions.

       Moore’s RICO conspiracy conviction is also supported by the evidence presented at trial.

To sustain a conviction for conspiracy to violate RICO, the United States must prove that a

defendant entered into an agreement to violate RICO. 18 U.S.C. § 1961. This showing requires

proof that the defendant intended to further the endeavor which, if successfully completed, would

satisfy all the elements of an underlying RICO violation. Fowler, 535 F.3d at 421. Particular to this

appeal, the United States must prove that Moore agreed that he or someone else would commit two



                                               - 10 -
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

predicate acts in furtherance of the criminal endeavor. United States v. Driver, 535 F.3d 424, 432

(6th Cir. 2008).

       Moore’s RICO conspiracy conviction is premised upon two predicate acts, Racketeering Acts

8 and 11. He challenges the latter of these two, which alleges that he knowingly and intentionally

agreed to “distribute more than five kilograms of cocaine, as well as marijuana, Vicoden, Viagra,

Ecstacy, and other controlled substances.” Evidence at trial discussed above sufficiently established

that Moore distributed drugs for Nagi and assisted him in collecting outstanding drug debts from

purchasers. Recorded telephone conversations captured Moore’s discussing sales of marijuana and

deliveries of cocaine. These facts support his conviction for RICO conspiracy.

               c. Assault with a dangerous weapon in aid of racketeering and aiding and

abetting of the same (Count 9).

       For his connection to the Walker incident, Moore was convicted of assault with a dangerous

weapon in aid of racketeering and aiding and abetting assault with a dangerous weapon in aid of

racketeering pursuant to 18 U.S.C. §§ 1959(a)(3) and (2), and Mich. Comp. Laws §§ 750.82 and

767.39. He challenges his participation in the underlying assault, as well as the finding that he knew

his accomplices were armed with a dangerous weapon. The lynchpin of his argument is that no

witness testified to seeing him with a weapon during the incident. However, and as he concedes,

actual possession of a firearm is not required for accomplice liability. See Rattigan v. United States,

151 F.3d 551, 557 (6th Cir. 1998). As long as he was a willing participant, and he knew that others

were armed, his conviction should stand. The evidence speaks clearly on this point. Walker testified

that Moore participated in the assault and his uncle similarly recalled seeing Moore at the bar where

                                                - 11 -
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

the shooting had occurred, as he identified Moore to police as one of the perpetrators. On that same

day, a recorded telephone conversation revealed Moore’s willingness to assist with the assault and

suggested he had weapons readily available for use. These facts are sufficient to support the

conviction on Count 9.

                d. Use of a firearm during and in relation to a crime of violence, and aiding and

abetting of the same, in violation of 18 U.S.C. §§ 924 (c) and 2 (Count 33).

        For his involvement in the Walker shooting, Moore was convicted of using a firearm during

and in relation to a crime of violence. The district court omitted the term “carry” from its instruction

to the jury and instead instructed the jury solely regarding “use.” Moore argues that this omission

renders the instructions “as a whole so clearly erroneous as to likely produce a grave miscarriage of

justice.”

        Section 924(c) establishes penalties for the use or carrying of a firearm in furtherance of a

violent crime. Thus, § 924(c) may apply in cases where either use or carrying is present. Here, the

indictment correctly mentioned both options, yet the jury instructions defined only “use,” and not

“carrying.” However, the instructions limited the charge against Moore to “using a firearm” in

connection with the Walker shooting. The narrowing of the jury instruction in this regard is

permissible, despite that the word “carry” was not stricken from the indictment. See United States

v. Miller, 471 U.S. 130, 136-37 (1985).

        The five-year mandatory minimum sentence for using a firearm in relation to a violent crime

increases to ten years if a firearm is discharged. 18 U.S.C. § 924(c)(1)(A)(iii). At sentencing, the

district court exercised its discretion under Harris v. United States, 536 U.S. 545 (2002), to find that

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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

Moore had in fact discharged a firearm and therefore applied a ten-year mandatory minimum

sentence. Moore argues that because the element of discharging affects the statutorily prescribed

range of permissible sentences, it must be decided by a jury. At the time of this appeal, Moore’s

argument plainly contradicted the Supreme Court’s holding on this issue in Harris, 536 U.S. at 557,

which allowed judicial factfinding which would increase a mandatory minimum sentence. Since the

parties submitted their briefs, however, the Supreme Court has expressly overruled Harris and held

that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the

jury.” Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Here, because the district court, rather

than a jury, found discharging of the firearm, Moore’s sentence for violation of § 924(c)(1)(A) must

be vacated and remanded for resentencing consistent with the jury’s verdict.

       4. Whether criminal intent is an essential element of aiding and abetting.

       Moore challenges the district court’s instruction to the jury regarding the element of intent

necessary to impose aiding and abetting liability. Moore did not object to this error, so we review

it for plain error. United States v. Katuramu, 174 F. App’x 272, 278 (6th Cir. 2006). Jury

instructions are viewed “in the context of the instructions as a whole and the trial record.” United

States v. Collins, 78 F.3d 1021, 1035 (6th Cir. 1996) (citation omitted).

       The district court instructed the jury as follows regarding aiding and abetting:

               Anyone who intentionally assists someone else in committing a crime
               is as guilty as the person who directly commits it and can be
               convicted of that crime as an aider and abettor.

               To prove that a defendant acted as an aider and abettor, the following
               elements must be proved beyond a reasonable doubt.


                                                - 13 -
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

                 One, that the alleged crime was actually committed.

                 Two, that before or during the crime, the defendant did something to
                 assist in the commission of the crime.

                 Three, that the defendant must have intended the commission of the
                 crime or must have known that the other person intended its
                 commission at the time of giving the assistance.

(R. 2067 at PAGE ID #14523) (emphasis added). The instructions mirror those for aiding and

abetting under Michigan state law. Cf. People v. Moore, 679 N.W.2d 41, 49 (Mich. 2004). Moore

argues that this definition produced a miscarriage of justice because it omits the element of intent

and because it fails to distinguish between the role of a spectator, which does not amount to aiding

and abetting, and that of a participant, which does. However, he does not elaborate on this argument

or provide any support thereof. He also fails to acknowledge that the jury instructions included the

following: “Anyone who intentionally assists someone else in committing a crime is as guilty as the

person who directly commits it and can be convicted of that crime as an aider and abetter.” Although

the jury instructions were short of perfect,1 they did not rise to the level of reversible error because

they indeed instructed the jury twice that Moore must have acted intentionally in order to be

convicted. Therefore, the instructions are not plainly erroneous.

        5. Evidence of other acts.

        Officer Brooks testified that Donald Megdanoff, Walker’s uncle, identified Moore to police

as the perpetrator. Moore objected to this testimony because Megdanoff had testified himself at trial


       1
          It is puzzling that the district court modeled its aiding and abetting instruction on state law. Federal aiding
        and abetting instructions are readily available and routinely given. See Sixth Circuit Pattern Jury
        Instructions, § 4.01 Aiding and Abetting.

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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

to being unable to identify any shooters. However, Megdanoff had also specifically testified that

Moore “took a couple of steps toward [him] and he said, ‘You f**** want some of this too?’” Based

on this testimony, the district court permitted Brooks’s testimony pursuant to Federal Rule of

Evidence 801(d)(1)(C), which allows admission of an out-of-court statement identifying a person

as someone the declarant perceived earlier as long as “the declarant testifies and is subject to cross-

examination.”

        We review evidentiary rulings for abuse of discretion. United States v. Bonds, 12 F.3d 540,

554 (6th Cir. 1993). Because admissibility pursuant to Federal Rule of Evidence 801(d)(1)(C) does

not turn on whether the declarant’s trial testimony is consistent with his prior statement, the district

court did not abuse its discretion in allowing Brooks’s testimony. Furthermore, and despite Moore’s

argument to the contrary, the district court properly ruled that a limiting instruction on its use solely

for impeachment was unnecessary as statements of prior identifications are admissible as substantive

evidence. United States v. Lopez, 271 F.3d 472, 485 (3d Cir. 2001) (quoting Fed. R. Evid. 801

advisory committee’s note). Therefore, Moore’s argument on this point fails.

        Moore also challenges the district court’s admission of a recorded phone call between Moore

and Nagi. During the recording, Moore described beating an unidentified person in a bar fight.

Moore argues that the assault was irrelevant to any of the offenses of which he was convicted and

served no purpose other than to establish his propensity for violence. This argument fails because

the recording, while prejudicial, was probative evidence of Moore’s involvement in the RICO and

VICAR enterprises as it demonstrated that he employed violent tactics to further the objectives of

the enterprise. See United States v. Garland, 320 F. App’x 295, 305 (6th Cir. 2008). For this reason,

                                                 - 15 -
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United States v. Sean Donovan, et al.

the district court did not abuse its discretion in admitting this evidence. Moore asserts similar

arguments regarding the district court’s admission of 27 firearms seized from Nagi’s residence and

graphic photos of facial injuries to Gerald Deese, who was assaulted by another HMC member. Like

the recorded phone conversation between Moore and Nagi, these items were probative evidence of

an enterprise that used violence to further its objectives. The district court did not abuse its

discretion in admitting them at trial.

       Finally, Moore challenges the admission of Burnett’s testimony concerning selling cocaine

for Burton and having seen Nagi, Moore, and Jarrell go out together on one occasion to collect a

drug debt from someone. Moore argues that a proper foundation for this testimony was lacking

because Burnett did not participate in the Nagi conspiracy and admitted that he did not know who

precisely in HMC was dealing drugs with whom. However, Moore fails to mention that Burnett

continued on in his testimony to state that he had discussions with Nagi about his drug activity and

had witnessed Nagi’s conversations with other HMC members about their organized drug activities.

Therefore, while Moore presents factually valid points, the district court did not abuse its discretion

in permitting Burnett’s testimony because it was soundly supported by his own knowledge of events.

       6. Guidelines calculation.

       Moore argues that the district court erroneously calculated his Guidelines sentence by

applying certain enhancements and by rejecting an offense-level reduction. Challenges to the

procedural or substantive reasonableness of a sentence are reviewed for abuse of discretion. United

States v. Bolds, 511 F.3d 568, 578-81 (6th Cir. 2007). To the extent that sentencing challenges



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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

concern factual determinations, we review them for clear error. Id. at 579. Legal conclusions are

reviewed de novo. Id.

        Moore first challenges the district court’s 12-level enhancement and 2-level enhancement

pursuant to USSG §§ 2B1.1(b)(1) and (2) for the amount of loss resulting from HMC’s motorcycle-

theft activities.   To successfully challenge the district court’s loss-calculation, Moore must

demonstrate “that the court’s evaluation of the loss was not only inexact but outside the universe of

acceptable computations.” United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009) (internal

quotation marks and citations omitted). Moore cannot meet this requirement because the district

court estimated the total loss as between $200,000 and $400,000, which is conservative based upon

the testimony of Neil Wisner, an investigator for the National Insurance Crime Bureau, who

estimated that the total value of the motorcycles stolen in South Carolina was $463,000. Therefore,

the district court’s estimate of total loss falls well within the universe of acceptable computations.

        Moore also challenges the district court’s application of a 2-level enhancement pursuant to

USSG § 2B1.1(b)(4) for being in the business of receiving and selling stolen property. We have

affirmed the application of this enhancement where evidence establishes that a defendant deals in

stolen merchandise by assisting in the process of obtaining and sorting items and then preparing

them for resale. See United States v. Abdelsalam, 311 F. App’x 832, 843 (6th Cir. 2009). Because

evidence was presented that Moore coordinated efforts to steal numerous motorcycles, store them,

and ultimately resell them, the enhancement was correctly applied.

        Finally, Moore challenges the district court’s decision not to apply an offense-level reduction

pursuant to USSG § 3B1.2 for his mitigating role in the charged offenses. However, at sentencing,

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United States v. Sean Donovan, et al.

Moore agreed that a sentencing reduction pursuant to § 3B1.2 was inappropriate. His argument was

therefore waived and should not be considered on appeal. See United States v. Ward, 506 F.3d 468,

477 (6th Cir. 2007).

B. Johnny Jarrell.

          1. Inclusion of Viagra as a “controlled substance.”

          Jarrell correctly asserts that, for the same reasons articulated by Moore and discussed above

in Part II.A.2., the district court improperly sentenced him above the maximum sentence for his

offense. As with Moore’s charges, the jury was erroneously instructed on Jarrell’s drug conspiracy

charge that Viagra is a controlled substance. As Jarrell’s sentencing calculation depended upon the

types and quantities of drugs supporting his conviction, the jury should have been instructed to return

a special verdict to this effect. Because it was not, the district court erred in imposing a sentence

which exceeded the shortest maximum sentence for any one of the pertinent violations. Dale, 178

F.3d at 432. Jarrell should therefore be resentenced applying a statutory maximum of five years

pursuant to 21 U.S.C. § 841(b)(1)(D). The United States agrees that resentencing in this regard is

proper.

          2. Points for leadership role in conspiracy.

          Jarrell also appeals the district court’s application of a four-point enhancement for his

leadership position in the drug-distribution conspiracy. See USSG § 3B1.1. “[R]eview of the legal

conclusion that a person is an organizer or leader under Section 3B1.1 . . . is deferential.” United

States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013). To qualify for a leadership-role sentencing

enhancement, a “defendant need only organize, supervise, or lead one other participant.” United

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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

States v. Currier, 473 F. App’x 469, 474 (6th Cir. 2012). Factors to consider in this analysis include:

                the exercise of decision making authority, the nature of participation
                in the commission of the offense, the recruitment of accomplices, the
                claimed right to a larger share of the fruit of the crime, the degree of
                participation in planning or organizing the offense, the nature and
                scope of the illegal activity, and the degree of control and authority
                exercised over others.

Id. at 474 (quoting USSG § 3B1.1).

        At trial, evidence was presented that Jarrell served as president of HMC’s Detroit

chapter one of the organization’s highest-ranking positions and that he sat on HMC’s national

committee. He also operated as a distributor of Nagi’s marijuana within HMC and led efforts to

pilfer unlocked motorcycles around Detroit. Considered in their entirety, these facts provide ample

support for the district court’s application of a sentencing enhancement for Jarrell’s leadership role

within HMC.

        3. Quantity of marijuana relied upon at sentencing.

        Jarrell argues that the district court erred when it determined that he was accountable for

92.89 kilograms of marijuana because the evidence presented at trial only connected him with 20

pounds of marijuana. In the earlier trial of Nagi, Jarrell’s marijuana supplier, the court established

that the Nagi conspiracy had distributed 92.89 kilograms of marijuana. As we have recognized, “a

district court is indeed permitted to rely on testimony presented in a related proceeding, so long as

there are sufficient indicia of reliability.” Logan v. United States, 208 F.3d 541, 544 (6th Cir. 2000).

Jarrell does not challenge the district court’s determination during Nagi’s trial of the quantity of

marijuana involved or point to any specific testimony which may have contaminated this finding.


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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

For this reason, we affirm the district court’s determination that Jarrell is responsible for the entire

amount of marijuana attributable to the Nagi conspiracy as determined in an earlier trial.

       4. Whether sufficient evidence was presented to support Jarrell’s conviction for

conspiracy to possess with intent to distribute controlled substances.

       To prove possession of a controlled substance with intent to distribute, the United States must

show that a defendant knowingly possessed a controlled substance with intent to distribute it. United

States v. Bennett, 291 F.3d 888, 895 (6th Cir. 2002). To establish a drug conspiracy, the United

States must prove that a defendant entered into an agreement to engage in unlawful behavior, had

knowledge and intent to join the conspiracy, and participated in the conspiracy. United States v.

Morrison, 220 F. App’x 389, 392 (6th Cir. 2007).

       Jarrell contends that his conviction must be set aside because the evidence was insufficient

to establish that he “entered into an agreement to violate drug laws or that he had the knowledge and

intent to join a drug conspiracy.” He contends that the only evidence regarding his involvement was

Fitzner’s testimony that 20 kilograms of marijuana were retrieved from Jarrell’s home. Other HMC

members testified that Jarrell held a full-time job and was not dependent upon income from drug

sales or that they had no actual knowledge of Jarrell’s specific role in HMC’s drug-distribution

scheme. Despite these statements, however, sufficient evidence was presented in support of finding

that Jarrell indeed voluntarily and knowingly entered into the conspiracy. For example, his role as

a chapter president speaks volumes to his engagement in these activities. Fitzner’s testimony about

being ordered to pick up marijuana from Jarrell establishes his knowledge and intent to be a



                                                 - 20 -
Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

participant. This is consistent with other testimony that Jarrell purchased steroids from other

members and that members owed him money for various drug purchases.

       5. Whether sufficient evidence was presented to support Jarrell’s conviction for

conspiracy to violate RICO.

       To sustain Jarrell’s conviction for his conspiracy to violate RICO, the United States must

show that he entered into an agreement to violate RICO. 18 U.S.C. § 1961. This showing requires

proof that Jarrell intended to further the endeavor which, if successfully completed, would satisfy

all the elements of an underlying RICO violation. Fowler, 535 F.3d at 421. To prove a RICO

violation, the United States must show (1) the existence of an enterprise which affects interstate

commerce; (2) the defendant associated with that enterprise; (3) the defendant participated in the

conduct of the enterprise’s affairs; and (4) the defendant’s participation was connected to a pattern

of racketeering activity. Id. at 418; 18 U.S.C. § 1961; United States v. Sinto, 723 F.2d 1250, 1260

(6th Cir. 1983). Jarrell disputes the first and third of these factors, both of which were sufficiently

supported by the evidence. First, HMC was clearly an enterprise as evidenced by its ongoing formal

and informal organization and by the various criminal activities which were interrelated and planned

among its members. See United States v. Turkette, 452 U.S. 576, 582-83 (1981). HMC’s organized,

hierarchical structure provided it with an effective mechanism for directing its affairs, supporting

its classification as an enterprise. Second, ample evidence supports the finding that Jarrell agreed

to participate in the enterprise’s conduct with knowledge and intent that other HMC members would

commit at least two predicate acts in furtherance of the enterprise, as required for his conviction.

See United States v. Nguyen, 255 F.3d 1335, 1341 (11th Cir. 2001). Jarrell served as the Detroit

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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

chapter president, one of HMC’s highest-ranking members in the country, and he sat on the

organization’s national committee. Evidence was presented that he conspired to distribute controlled

substances with Moore and others as part of the Nagi conspiracy. Additional evidence indicated that

he had knowledge of HMC’s motorcycle thefts, as he allowed Moore to store at least one stolen

motorcycle in their shared condo.

C. Robert Flowers.

       Flowers was convicted of conspiracy to violate RICO and conspiracy to distribute controlled

substances. He challenges these convictions and argues specifically that (1) his RICO conspiracy

conviction, for violation of 18 U.S.C. § 1962(c) should be vacated because the evidence could not

establish his agreement that someone would commit two predicate acts; and (2) the evidence did not

establish his agreement to distribute controlled substances in violation of 21 U.S.C. § 846.

       These arguments fail because the evidence showed that, as a leader within HMC, Flowers

participated in the Burton conspiracy. He picked up a shipment of cocaine and delivered it to

Burton’s house. Fitzner testified that Flowers dealt drugs from the HMC West Side chapter

clubhouse. These facts establish that he committed acts in furtherance of HMC’s RICO violations

(he transported drug orders and sold them himself) and that he agreed to others’ participation in

furthering these activities (he served as a chapter officer and trafficked drugs with other members

from the HMC clubhouse). For these reasons, this convictions are sufficiently supported by the

evidence.




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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

D. Sean Donovan.

       Donovan was convicted of conspiring to distribute over five kilograms of cocaine in violation

of 21 U.S.C. § 846. He challenges the district court’s admission of evidence of his selling cocaine

to two HMC members, William Bridges and John McGinn. The United States argues that Donovan

failed to preserve this issue for appeal because it was not raised before the district court. Whether

Donovan’s objection properly preserved his precise grounds for appeal need not be decided,

however, since his arguments fail under review for either abuse of discretion or plain error.

       Peters testified over Donovan’s objection that another HMC member, McGinn, told Peter

that Donovan was selling cocaine. On cross-examination, Peters acknowledged that he never

firsthand saw Donovan sell cocaine to anyone. Peters’s testimony was relevant and did not violate

the Confrontation Clause. U.S. Const. amend. VI. Evidence of his repeated cocaine sales to Burton

and others was probative of his involvement in the conspiracy. Moreover, Donovan’s Sixth

Amendment right was not violated because the Confrontation Clause protects defendants against out-

of-court testimonial statements which the declarant would reasonably anticipate being used against

him. United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009). The statement in question was

not testimonial and therefore does not implicate Donovan’s Confrontation Clause rights.

       Bridges’s testimony was also properly permitted because it was relevant to Donovan’s

supplying cocaine to members of the Burton conspiracy. Donovan and Bridges were both part of

the Burton conspiracy, and Bridges’s testimony on this topic was directly probative of Donovan’s

participation. For these reasons, Donovan’s arguments lack merit and should be rejected.



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Nos. 11-1843, 11-2163, 11-2450, 11-2055
United States v. Sean Donovan, et al.

                                      V. CONCLUSION

       Defendants’ convictions are AFFIRMED. However, because the sentences for both Moore

and Jarrell were tainted by the incorrect categorization of Viagra as a controlled substance, and

because the district court improperly applied a ten-year mandatory minimum sentence on Moore’s

conviction for violating 18 U.S.C. § 924(c)(1)(A), their sentences are REVERSED and

REMANDED to the district court for re-sentencing consistent with this opinion.




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