                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 09-4215


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

WILLIE MITCHELL, a/k/a Bo,

               Defendant – Appellant.



                             No. 09-4357


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

SHELTON HARRIS, a/k/a Little Rock,

               Defendant – Appellant.



                             No. 09-4359


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.
SHELLY WAYNE MARTIN, a/k/a Wayne,

                Defendant – Appellant.



                            No. 09-4361


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SHAWN GARDNER, a/k/a Goo,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.    Andre M. Davis, District Judge.
(1:04-cr-00029-AMD-1; 1:04-cr-00029-AMD-2; 1:04-cr-00029-AMD-3;
1:04-cr-00029-AMD-4)


Argued:   May 13, 2011                       Decided:    June 15, 2011


Before TRAXLER,   Chief   Judge,   and   SHEDD   and   DUNCAN,   Circuit
Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Chief Judge Traxler and Judge Duncan joined.


ARGUED: Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland; Paul Martin Flannery, ROSENBERG, MARTIN & GREENBERG,
LLP, Baltimore, Maryland; Thomas Leonard Crowe, LAW OFFICES OF
THOMAS L. CROWE, Baltimore, Maryland; Adam Harris Kurland,
HOWARD   UNIVERSITY  SCHOOL  OF   LAW,  Washington,   D.C.,  for
Appellants. Robert Reeves Harding, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.   ON BRIEF: Sicilia
Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant Willie Mitchell; Barry Coburn, COBURN & COFFMAN, PLLC,

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Washington, D.C., for Appellant Shawn Gardner.           Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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SHEDD, Circuit Judge:

      A jury convicted Willie Mitchell, Shelton Harris, Shelly

Wayne Martin, and Shawn Gardner of racketeering conspiracy in

violation of 18 U.S.C. § 1962(d) and, individually, of various

murders      as    well     as   drug   and       firearm     offenses.     The    four

defendants worked together and depended on one another to sell

drugs, to operate a rap music business, and to rob and murder

several     of    their     criminal    associates.           In   this   consolidated

appeal, the defendants raise a total of sixteen issues.                       After a

thorough review of all sixteen issues, we find none to have

merit,      and    we     address    only    three     evidentiary    issues:      the

exclusion of Herb “Coach” Lynch’s testimony, the exclusion of

Gardner’s         prior     state     court        murder     conviction,    and   the

introduction of the defendants’ courtroom behavior and pro se

pleadings.



                                             I.

      “We review evidentiary rulings for abuse of discretion, and

such rulings are subject to harmless error review.”                           U.S. v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997).                      “In order to find a

district court's error harmless, we need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was   not    substantially          swayed    by    the     error.”   Id.    (internal

                                              4
citation marks omitted).              With this framework in place, we turn

to each issue.



                                             II.

     First, Mitchell argues that the district court abused its

discretion in excluding the testimony of “Coach” Lynch.                                   As a

defense to the racketeering conspiracy charge, the defendants

argued that the evidence demonstrates they were only involved in

multiple,           lesser     conspiracies,        not     a    single         racketeering

conspiracy.           In support of this defense, Mitchell wanted Lynch

to testify as to his whereabouts during various time periods

within        the     racketeering       conspiracy,        specifically          the     time

Mitchell       spent      either   incarcerated        or   working        at    the    Hickey

School,       a     juvenile     detention      center.         Mitchell    alleges       that

Lynch    would        have     testified     that     during      those     time       periods

“Mitchell had a rigorous daily schedule of school and practices

that left little time for anything else . . . and that it would

have been difficult for him to participate in a conspiracy while

he      was       incarcerated       or      working        at     Hickey         [School].”

(Appellant’s Br. at 99.)

        Prior to Lynch’s testimony, one of the jurors informed the

court    that        he   knew   Lynch     as   his   son’s      athletic        mentor    and




                                                5
trainer. 1        The    juror      saw    Lynch every       two    days at   his   son’s

practices and planned to continue seeing Lynch on this schedule

throughout        the    trial.            Based    upon     this    information,     the

government moved to excuse the juror, but the attorneys for all

four defendants opposed the motion.                     The court offered several

options to Mitchell’s counsel, including entering a stipulation

as to Lynch’s testimony.                  After Mitchell’s counsel refused these

options,      the       district      court        decided    to     preclude   Lynch’s

testimony because the evidence was amenable to a stipulation,

all defense counsel opposed dismissing the juror, and there was

a “truly intimate relationship between this juror and this fact

witness.”     (J.A. 822.)

     We believe that any error in excluding Lynch’s testimony

was harmless.           Lynch was not going to testify as to evidence

regarding     any       of    the   charged     conduct.       Moreover,      Mitchell’s

counsel      called          substitute      witnesses       that    provided   similar

testimony.        Therefore, in light of the Government’s overwhelming

evidence     of     guilt      presented      throughout      the    trial,   there   was

sufficient evidence to sustain the jury’s verdict even without

this challenged evidence.



     1
       During voir dire, Mitchell’s counsel did not provide
Lynch’s first name, referring to him as “Coach” Lynch.        The
juror knew Lynch as “Herb Lynch, Certified Personal Trainer.”



                                               6
                                        III.

       Next, Gardner argues that the district court abused its

discretion in excluding evidence of his prior state court murder

conviction.        Gardner had previously been convicted in Maryland

state court and sentenced to a life term for the murder of Tanya

Jones-Spence,      one    of    the   murders    also    charged     in    this    case.

Likewise,     the        Government’s        cooperating         witness,       William

Montgomery, had also testified in the state trial.                          Therefore,

in this trial, the district court instructed Gardner’s counsel

that when cross-examining Montgomery he could bring out the fact

that Montgomery had testified in a prior proceeding before a

jury.      However,      the    court   forbade        counsel    from     introducing

evidence of Gardner’s conviction in that proceeding.

        Only relevant evidence is admissible.                Fed. R. Evid. 401,

403.     Even assuming evidence of Gardner’s prior conviction was

relevant, such evidence may be excluded when its probative value

is     substantially      outweighed        by   the     potential        for   “unfair

prejudice, confusion of the issues, or misleading the jury.”

Fed. R. Evid. 403.             In this case, the district court excluded

this    evidence    because      of   its   concern     about    confusion        of   the




                                            7
issues, waste of time, and the potential for prejudice to both

Gardner and the other defendants. 2

     We    find    that   the     district    court     did    not    abuse       its

discretion in holding that the probative value of evidence of

Gardner’s prior state conviction was substantially outweighed by

its potential for jury confusion and prejudice and, thus, should

be excluded.      Presenting this jury with a previous jury’s guilty

verdict for the exact crime charged in this case would have

certainly been both prejudicial and confusing.



                                      IV.

     Finally, all four defendants argue that the district court

abused its discretion by allowing the Government to introduce

evidence     of   their   pre-trial    courtroom      behavior       and    pro    se

pleadings.        Specifically,    during    pretrial    hearings,         the    four

defendants    repeatedly    engaged    in    disruptive       behavior      through

coordinated and identical demonstrations.               The defendants gave

     2
       Specifically, the court stated it was primarily concerned
about the prejudicial effect such evidence would have. “[O]nce
we go there [putting the conviction and sentence before the
jury], it is beyond me how in any coherent way you can maintain
innocence through a non-concession of guilt when you’ve told the
jury or had the Court tell the jury or conceded in front of the
jury that there has been a trial, Montgomery testified, a jury
listened to that evidence as well as other evidence, and found
beyond a reasonable doubt that Mr. Gardner had committed this
murder or, and/or aided and abetted in the commission of this
murder and/or conspired to commit this murder.” (J.A. 1211.)



                                       8
identical speeches rejecting the jurisdiction of the district

court over them as live “flesh and blood” men and denouncing the

Government, the district court, and their attorneys.                   They also

submitted identical pro se pleadings.

        In   its     fourth     superseding     indictment,    the    Government

alleged that the racketeering conspiracy continued through the

trial and that a purpose of the conspiracy was “[p]reventing and

obstructing the arrest and prosecution of members and associates

through . . . disruption of court proceedings.”                (J.A. 457-458.)

In order to prove this charge, the Government introduced the

above    evidence     of   the   defendants’     coordinated      behavior.     On

appeal,      the   defendants     argue   that    the   introduction    of    this

evidence violates their Sixth Amendment right to mount their own

defense.

     We again conclude that, even assuming the district court

abused its discretion in admitting this evidence, any error was

harmless.      The jury convicted all four defendants not only of

the racketeering conspiracy but also of multiple, substantive,

predicate counts.          The evidence presented throughout the nine

week trial detailing the four defendants’ concerted activities

in furtherance of the racketeering enterprise was abundant and

sufficient      to    sustain    the   jury’s    verdict   even    without    this

challenged evidence.



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                                   V.

    For    the   foregoing   reasons    we   affirm   the   convictions   of

Willie Mitchell, Shelton Harris, Shelly Wayne Martin, and Shawn

Gardner.

                                                                  AFFIRMED




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