United States v. Barronette

46 F.4th 177

UNITED STATES of America, Plaintiff – Appellee,

v.Montana BARRONETTE, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Brandon Wilson, a/k/a Ali, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.John Harrison, a/k/a Binkie, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Linton Broughton, a/k/a Marty, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Terrell Sivells, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Taurus Tillman, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Timothy Floyd, a/k/a Tom Rod, Defendant – Appellant.

United States of America, Plaintiff – Appellee,

v.Dennis Pulley, a/k/a Denmo, Defendant – Appellant.

No. 19-4123

No. 19-4160

No. 19-4180

No. 19-4181

No. 19-4328

No. 19-4408

No. 19-4562

No. 19-4726

United States Court of Appeals, Fourth Circuit.

Argued: May 4, 2022

Decided: August 18, 2022

ARGUED: Steven M. Klepper, KRAMON & GRAHAM, PA, Baltimore, Maryland; Alfred Guillaume, III, LAW OFFICE OF ALFRED GUILLAUME III, Washington, D.C., for Appellants. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Michael Lawlor, BRENNAN MCKENNA & LAWLOR, Greenbelt, Maryland, for Appellant Montana Barronette. Christopher C. Nieto, NIETO LAW OFFICE, Baltimore, Maryland, for Appellant Brandon Wilson. Jenifer Wicks, BLIND JUSTICE LEGAL SERVICES, Takoma Park, Maryland, for John Harrison. Stuart A. Berman, LERCH, EARLY & BREWER, CHTD., Bethesda, Maryland, for Appellant Terrell Sivells. Erek L. Barron, WHITEFORD, TAYLOR & PRESTON LLP, Rockville, Maryland, for Appellant Dennis Pulley. Richard B. Bardos, SCHULMAN, HERSHFIELD & GILDEN, P.A., Baltimore, Maryland, for Appellant Taurus Tillman. Gerald C. Ruter, LAW OFFICES OF GERALD C. RUTER, PC, Baltimore, Maryland, for Appellant Timothy Floyd. Jonathan F. Lenzner, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before NIEMEYER and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.

Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, and 19-4562, affirmed; No. 19-4726, affirmed in part, reversed in part, and remanded for further proceedings by published opinion. Senior Judge Floyd wrote the opinion in which Judge Niemeyer and Judge Diaz joined.

FLOYD, Senior Circuit Judge:

Appellants Montana Barronette, Brandon Wilson, Linton Broughton, John Harrison, Terrell Sivells, Taurus Tillman, Timothy Floyd, and Dennis Pulley (collectively, Appellants) operated for around seven years an enterprise known as "Trained to Go" (TTG) within one of West Baltimore's neighborhoods. Appellants distributed drugs and engaged in countless acts of violence using firearms. They exercised their constitutional right to a jury trial and were convicted for their actions, including for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). They now bring numerous challenges to their convictions and sentences, including their right to a public trial, the evidence admitted at trial, and more. We affirm Appellants' convictions and sentences on all fronts, save one. We reverse Pulley's § 922(g)(1) conviction, vacate the judgment as to him, and remand for further proceedings consistent with our opinion.

I.

A.

Evidence at trial, viewed in the light most favorable to the government, United States v. Burgos , 94 F.3d 849, 854 (4th Cir. 1996) (en banc), showed the following. From about 2010 to 2017, Appellants operated TTG in the Sandtown neighborhood of West Baltimore. Barronette and Sivells served as leaders. Over the course of seven years, Appellants and TTG distributed heroin, cocaine, marijuana, and other controlled substances. In addition to distributing drugs, the organization's members, including Appellants, engaged in violent acts using firearms, including murder, kidnapping, and assault. Other criminal organizations, including a group known as "Young Go Getters" (YGG) solicited TTG members and associates to engage in murder-for-hire schemes. Appellants, in varying capacities, were connected to the murders of Brian Chase, Marquez Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker, Domonique Harris, Antonio Addison, and Christopher Pennington. The government also introduced evidence at trial of TTG's unfulfilled plans to murder others.

Law enforcement began surveilling TTG, using informants to conduct controlled buys, and acquiring warrants to wiretap TTG members' phones. On February 5, 2016, a tracking order was issued for a cellular phone used by Sivells and referred to as TT4. A wiretap order issued for that phone on March 3, 2016. On April 5, 2016, the government filed an application for a warrant authorizing the interception of wire communications to and from another cellular telephone used by Sivells and referred to as TT5. The wiretap calls showed Appellants communicating to distribute drugs and to track people who they were conspiring to murder. During the course of surveillance, officers observed Barronette and Sivells conducting drug transactions. Law enforcement also conducted controlled purchases of drugs from the group. In light of this surveillance, police acquired search and seizure warrants for a variety of addresses connected to Appellants, including a warrant issued on August 4, 2016, for a search of the premises at 2307 Avalon Street in Baltimore.

B.

On June 29, 2017, a grand jury in the District of Maryland returned a superseding indictment containing RICO conspiracy and other charges against Barronette, Wilson, Harrison, Broughton, Sivells, Tillman, Floyd, and Pulley. On June 7, 2018, the grand jury returned a second superseding indictment.

Count One charged all Appellants with conspiring to violate RICO, 18 U.S.C. § 1962(d), for their actions as TTG members. The government alleged that Appellants conspired to sell heroin, cocaine, and marijuana and to enrich and protect themselves and TTG through murder, assault, robbery, kidnapping, and other acts of violence. The indictment listed predicate offenses as murder, attempted murder, and conspiracy to commit murder under Maryland law; murder-for-hire under 18 U.S.C. § 1958 ; witness tampering and retaliation under 18 U.S.C. §§ 1512 & 1513 ; conspiracy to distribute and possession with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841 ; and robbery and robbery conspiracy under the Hobbs Act, 18 U.S.C. § 1951, and Maryland law. Count One set forth twenty-one overt acts, including drug sales and murders.

Count Two charged Barronette and Harrison with murdering three individuals to maintain and increase their positions in TTG, in violation of 18 U.S.C. § 1959(a)(1).¹

Count Three charged all Appellants with a narcotics conspiracy, from 2010 through the date of the original indictment in January 2017, involving one kilogram or more of heroin, as well as cocaine and marijuana, in violation of 21 U.S.C. § 846.

Counts Four, Five, and Six charged Sivells and Tillman with possession with intent to distribute heroin on specific dates in 2016, in violation of 21 U.S.C. §§ 841 and 18 U.S.C. § 2.

Counts Seven, Eight, Nine, and Ten charged Wilson and Pulley with possessing firearms in furtherance of the narcotics distribution conspiracy, in violation of 18 U.S.C. § 924(c), and while having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g).

The district court denied Appellants' pretrial motions to dismiss the RICO conspiracy charge and to suppress evidence and statements obtained through electronic surveillance and law enforcement interrogation.

The jury trial commenced on September 17, 2018. Ten days into the trial, the district court advised counsel that it would authorize the marshals to limit the number of spectators in the courtroom to twenty-five people if the marshals had security concerns and that additional spectators would be sent to an overflow room. The district court overruled Harrison and Tillman's objections to this, citing "extremely serious security concerns," J.A. 1109.2, including fights in the gallery, knives being found in the gallery, a table in the lobby of the courtroom being vandalized with TTG's name, the fact that government witnesses in the case had been murdered, and an alleged request from Barronette while imprisoned for people to pack the courtroom when government witnesses were testifying.

After twenty-six days of trial, the jury convicted Appellants on all charges. The jury also issued special verdicts. It found that Barronette conspired to commit the murders of Brian Chase, Marquez Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker, Antonio Addison, and an unknown individual. However, the jury declined to find that Barronette conspired to commit one murder—that of David Moore. The jury returned a special verdict that Sivells conspired to commit the murder of Antonio Addison. It found that Harrison conspired to commit the murders of Brian Chase, Lamont Randall, Gerald Thompson, Jacqueline Parker, and Dominique Harris. The jury returned a special verdict that Broughton conspired to commit the murder of an unknown individual. It found that Pulley conspired to commit the murder of Christopher Pennington. The jury returned a special verdict that Floyd conspired to commit the murder of Antonio Addison. On the narcotics conspiracy charge, the jury found that 1,000 grams or more of heroin, along with quantities of cocaine and marijuana, were foreseeable to all Appellants.

On February 15, 2019, Barronette received a sentence of concurrent terms of life imprisonment on Counts One and Three, concurrent five-year terms of supervised release, and a $200 special assessment.

On March 7, 2019, the district court sentenced Wilson to concurrent terms of 240 months' (Counts One and Three) and 120 months' (Count Eight)...