United States v. Maurice Duncan Burks (22-6094)

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAURICE DUNCAN BURKS (22-6094); BRANDON DURELL HARDISON (22 6101); ELANCE JUSTIN LUCAS (22-6102), Defendants-Appellants.

Nos. 22-6094, 22-6101, 22-6102

United States Court of Appeals, Sixth Circuit

September 20, 2024

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

Before: WHITE, STRANCH, and DAVIS, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Maurice Duncan Burks, Elance Justin Lucas, and Brandon Durell Hardison appeal their criminal convictions and sentences stemming from their membership in the Clarksville deck, a regional subgroup of the Gangster Disciples gang. Burks brings several challenges to his conviction and sentence for racketeering and drug trafficking conspiracies. Lucas challenges the district court's finding of drug quantities at sentencing as violating his rights under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Alleyne v. United States, 570 U.S. 99, 103 (2013). Hardison challenges the sufficiency of the evidence supporting his convictions for murder in violation of the federal Violent Crimes in Aid of Racketeering (VICAR) statute and related gun charges. For the reasons that follow, we AFFIRM.

I. BACKGROUND

A. Facts

This appeal centers on members of the Gangster Disciples (GD), a gang founded by the 1960s merger of two Chicago-based street gangs headed by Larry Hoover and David Barksdale. See United States v. Irwin, 149 F.3d 565, 567 (7th Cir. 1998). At its height, the gang realized $100,000,000 in profits per year from its drug business. See Shell v. United States, 448 F.3d 951, 953 (7th Cir. 2006). Over time, GD began operating across the United States, including in Tennessee.

1. Burks and Lucas

In 2010, Danyon Dowlen served as "governor" of the Clarksville faction, or "deck," of the GD, and Marcus Darden was his second-in-command. Around 2011 or 2012, Burks assumed the positions of "enforcer" and "regent" (second in command) within the Clarksville GD. In August 2013, Burks attended a gang meeting in Murfreesboro, Tennessee, where members beat another member for a perceived violation of gang rules.

At that time, Clarksville GD members were involved in cocaine trafficking. Around 2011, Burks and Elance Lucas, another ranking member of the GD, found a new source of cocaine and worked as a team to cook, package, and distribute drugs in and from a location known as "the cave" in Guthrie, Kentucky. This positioned the pair as the primary suppliers of cocaine for the Clarksville deck. Burks sold crack cocaine in half-ounce and ounce quantities to GD members as well as individuals unaffiliated with the gang.

Burks used the drug proceeds to pay gang dues into a fund, known as a "box," from which money could be used to buy firearms. Burks provided firearms to other GD members, who used the guns to protect themselves from rival gangs and to arm themselves while selling drugs.

According to Dowlen, Burks also fatally shot a rival gang member, Malcolm Wright at C-Ray's night club on November 3, 2012.

2. Hardison

In June 2011, Dowlen and Tavares Trotter, a member of the GD, saw a man "throwing up the pitchforks," a symbol of the GD, and dancing in a night club where rival gang members were present. After connecting with the GD members at the club, Hardison began attending the Clarksville gang meetings and formed a close relationship with Trotter. During this time, Hardison made money selling marijuana; he did not have a "legitimate job."

On January 6, 2012, Hardison rode with three others-including Trotter and fellow GD member Lavell Traylor-to the residence of Derrick Sherden, another GD member. Sherden owed Hardison $80 for marijuana and Hardison wanted to collect the debt. Upon arrival, Hardison asked Sherden where his money was. Sherden responded that he was going to get the money; Hardison responded, "[s]ay no more," and walked out the front door to smoke. Sherden put on a CD and sat on the couch listening with Trotter. Hardison returned, took a pistol out of his pocket, and shot Sherden "straight in []his head" without warning. Trotter got up to run. Sherden's girlfriend, Amanda Weyand, was in the next room and started screaming. Hardison told Trotter to "go grab the girl"; Trotter refused and ran out the front door, where he heard four or five shots and more screaming. Trotter and Hardison drove away together, and Hardison said, "Man, if any one of you all say something about this, I'm going to kill y'all." Hardison instructed Trotter to do something with the gun; Trotter disposed of it in a river. Law enforcement arrived at the Main Street address later that day and found Sherden and Weyand dead.

At some point after the shootings, consistent with the GD procedures for "major incidents," Trotter reported the murders to Dowlen. The Clarksville GD deck met to discuss how to deal with Hardison, who faced death for killing a fellow member of the GD. Darden wanted to kill Hardison; however, Dowlen advocated for Hardison, and GD leadership decided that "Hardison was in the right and he wouldn't be sanctioned or eradicated for" the killing. Following the murders, Hardison embraced a "Creeper da Reaper" persona, portraying himself as "the death dealer," "the one that took care of situations for the" gang.

B. Procedural History

A grand jury returned an indictment against 11 members of the Clarksville GD deck on June 29, 2017. A Third Superseding Indictment, filed on November 7, 2018, charged Burks and Lucas with participating in a racketeering conspiracy in violation of 18 U.S.C. § 1961(1) and (5), and conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine hydrochloride and 280 grams or more of crack cocaine, oxycodone, methadone, hydrocodone, and marijuana all in violation of 21 U.S.C. § 841(a)(1) and (b). On August 9, 2021, a grand jury returned a Fourth Superseding Indictment against Hardison, charging him with Racketeer Influenced and Corrupt Organizations Act ("RICO") conspiracy and related violence in aid of racketeering ("VICAR") counts in relation to the murders of Sherden and Weyand. Hardison's trial was severed from the other GD defendants. Burks and Lucas's trial began on March 1, 2019; Hardison was tried over 11 days in 2021, beginning October 18 and concluding on November 3.

1. Burks and Lucas Trial

During discovery, Burks filed motions for exculpatory evidence, and later moved to compel production of materials under Brady v. Maryland, 373 U.S. 83 (1963). The district court ordered the Government to provide a list of witnesses designated "highly sensitive," and related material to Burks by February 15, 2019, thirty days before trial, under the Jencks Act, 18 U.S.C. § 3500, Brady, and Giglio v. United States, 405 U.S. 150 (1972). Burks also filed a motion to dismiss the indictment for delay, which was denied. The court also denied Burks's motion to sever his trial, and motion to reconsider, after which the Government tried Burks alongside four codefendants, including Lucas.

During voir dire, the Government exercised a peremptory challenge to strike Juror Number One, an African American woman. Burks's counsel raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986). The court denied the challenge, concluding that Burks failed to establish a prima facie Batson case, and that even if he had, the Government had offered a legitimate, nondiscriminatory reason for its decision to strike Juror Number One.

Prior to trial, Burks also moved on double jeopardy grounds to prevent admission of his previous guilty plea, conviction, and sentence in the Western District of Kentucky for possession with intent to distribute cocaine, that had stemmed from three controlled buys the Government identified as overt acts in furtherance of the conspiracy in this case. The court denied the motion, and the Government introduced evidence of the previous controlled buys and Burks's guilty plea at trial.

Dowlen testified that Burks was a member of the Clarksville GD deck and identified him in a Clarksville GD photo, testified that he had seen Burks with significant quantities of cash from time to time, and stated that Burks made his money from selling drugs. Dowlen also testified about Burks's alleged involvement in the C-Ray's shooting of Malcolm Wright:

Q. Was Mr. Burks armed at the time?

A. Yes.

Q. What was he armed with?

A. He had a-a compact .45.

Q. A .45 caliber pistol?

A. Yes.

Q. And after he made those statements to you, did you ask him anything about the pistol he had?

A. Yes. I asked him, "Is that the pistol right there?" Because I know he kept a-a similar .45 on him. And he told me, "Nah, this is a twin to that."

R. 2300, Trial Tr. Vol. 12, PageID 33426.

Another former member of the GD, Johnny Austin, testified that he was "nervous" because he was testifying at trial, and worried that "[t]hey going to kill me." The Government asked Austin if he was referring to GD members, and Austin responded that he was. Burks's counsel moved for a mistrial, which the court denied. Austin also testified that after he spoke with the Government while incarcerated, two GD members beat him up and told him that it was because he "was snitching" and that they were "going to get [him] again."

An agent with the Department of Alcohol, Tobacco, and Firearms (ATF), testified about another former GD member, Carlos Jordan, who agreed to work with the Government. When asked why the agency relocated Jordan, the agent responded that Jordan's "life was in danger," because "Gangster Disciple members were trying to find him to have him report to their security." Burks's counsel then renewed his motion for a mistrial due to improper...