United States v. McClaren

13 F.4th 386

UNITED STATES of America, Plaintiff—Appellee,

v.Delwin MCCLAREN; Dedrick Keelen; Jawan Fortia; Bryan Scott; Lionel Allen, Defendants—Appellants.

No. 17-30524

United States Court of Appeals, Fifth Circuit.

FILED September 9, 2021

Kyle Daly, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, Kevin G. Boitmann, Assistant U.S. Attorney, Diane Hollenshead Copes, Esq., Assistant U.S. Attorney, Jeffrey Ryan McLaren, Assistant U.S. Attorney, Edward John Rivera, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, for Plaintiff-Appellee.

John-Michael Lawrence, John-Michael Lawrence, L.L.C., Jacksonville, FL, for Defendant-Appellant Delwin McClaren.

Autumn Alycia Town, Law Office of Autumn Town, New Orleans, LA, for Defendant-Appellant Dedrick Keelen.

Celia Clary Rhoads, Esq., Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, Claude John Kelly, III, Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, Ada Phleger, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant Jawan Fortia.

Mark David Plaisance, Esq., Prairieville, LA, for Defendant-Appellant Bryan Scott.

Alysson Leigh Mills, Mills & Amond, L.L.P., New Orleans, LA, for Defendant-Appellant Lionel Allen.

Before Stewart, Higginson, and Wilson, Circuit Judges.

Carl E. Stewart, Circuit Judge:

IT IS ORDERED that the government's petition for panel rehearing is GRANTED and that our prior panel opinion, United States v. McClaren , 998 F.3d 203 (5th Cir. 2021), is WITHDRAWN and the following opinion is SUBSTITUTED therefor. Appellants’ petitions for panel rehearing and for rehearing en banc are DENIED.

Defendants Delwin McClaren, Dedrick Keelen, Jawan Fortia, Bryan Scott, and Lionel Allen were convicted of numerous crimes related to their participation in a New Orleans street gang. We AFFIRM their convictions in part and VACATE in part.

I. FACTS AND PROCEDURAL HISTORY

Defendants were members of the Young Melph Mafia ("YMM"), a street gang in New Orleans. A grand jury charged Defendants in a second superseding indictment for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), the Federal Controlled Substances Act, the Federal Gun Control Act, and the Violent Crimes in Aid of Racketeering Act ("VICAR"). The indictment charged Allen, Fortia, and Keelen with numerous substantive VICAR and firearms offenses stemming from several shootings. The indictment additionally charged Defendants with RICO, drug-trafficking, and firearms conspiracies. Fortia and Keelen were charged in all conspiracies, while Allen was charged in the RICO and firearms conspiracies. McClaren and Scott were charged only in the drug and firearms conspiracies.

The district court denied McClaren's and Scott's motions for severance. During jury selection, the district court granted Batson challenges by both sides. The six-day trial included almost 70 witnesses and approximately 300 exhibits. At the close of the evidence, the district court denied Defendants’ motions for judgments of acquittal. Allen and Fortia were both acquitted of causing death with a firearm, but the jury found Defendants guilty as charged on all other counts. Defendants filed a joint motion for a new trial, arguing the government's witnesses were not credible. The district court denied the motion.

After Defendants appealed, the government informed them that a government witness may have perpetrated an additional shooting with Allen. This court remanded, and Fortia, Keelen, and McClaren filed motions for a new trial. The district court denied the motions, finding the disclosure was not material. Defendants appealed that denial and their convictions in general.

II. DISCUSSION

Defendants raise multiple arguments for reversing their convictions. We review each in turn.

A. Motion to Sever

The district court declined to sever McClaren and Scott's trials. The district court noted that, although McClaren and Scott were not charged with the RICO conspiracy, "there is little doubt as to the interrelatedness of the counts[.]" The district court stated

[T]he distribution and gun conspiracies here are part of the same scheme of illegal activity as the RICO conspiracy. Not only are multiple defendants common to all three conspiracies, the aims of the RICO and distribution conspiracies are the same—dealing crack cocaine and marijuana in Central City. Moreover, all but one defendant is charged in the gun conspiracy of Count 3, which involves the use of firearms and violence in furtherance of the crimes alleged in Counts 1 and 2. Clearly, these three conspiracies are interrelated.

The court did however issue a limiting instruction, admonishing the jury to consider the case of each defendant separately. McClaren and Scott argue that the court erred in denying their motions to sever, noting that they were charged with significantly less serious crimes than their co-defendants. Neither of them was charged with crimes of violence. They maintain that denying the motion to sever resulted in substantial prejudice because of the highly inflammatory evidence presented against the other defendants.

"We review a denial of a motion to sever a trial under the exceedingly deferential abuse of discretion standard." United States v. Chapman , 851 F.3d 363, 379 (5th Cir. 2017) (citation and internal quotation marks omitted). Federal Rule of Criminal Procedure 14(a) provides that a court "may ... sever Defendants’ trials" if the joinder "appears to prejudice a defendant or the government." FED. R. CRIM. P. 14(a). Nevertheless, " Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Chapman , 851 F.3d at 379 (citation omitted). Limiting instructions are "generally sufficient to prevent the threat of prejudice[.]" Id. (citation and internal quotation marks omitted).

To demonstrate abuse of discretion, Defendants must prove that the joint trial prejudiced them beyond district court protection and that the prejudice outweighed any interest in the economy of judicial administration. See United States v. Rodriguez , 831 F.3d 663, 669 (5th Cir. 2016). Defendants must isolate events at trial, demonstrate the events caused substantial prejudice, and show the jury instructions were inadequate to protect them. See id.

McClaren and Scott have not met the heavy burden necessary to show that the district court abused its discretion. The district court was correct in noting the interrelatedness of McClaren's and Scott's actions with the rest of the conspiracy, even if McClaren's and Scott's actions were less severe. McClaren and Scott have not pointed to evidence demonstrating that the joint trial prejudiced them beyond protection of the limiting instruction or that prejudice outweighed the interest in economical judicial administration, as they are required to do. See id. Furthermore, they have not pointed to the record to show what events created substantial prejudice. See id. The cases they cite are all significantly distinguishable from the facts present here.

For example, in United States v. Cortinas , this court held that the defendants were entitled to a severance of their trial from seven others tried for offenses involved in a drug conspiracy. 142 F.3d 242, 248 (5th Cir. 1998). Although they had been part of the conspiracy initially, the record showed clearly that the defendants withdrew from the conspiracy before a new gang joined the conspiracy and violent acts occurred. Id. There is no such withdrawal here, and McClaren and Scott were not wrongfully associated with people they had no relation to. McRae is similarly distinguishable, featuring a former police officer who shot and killed a victim but was tried jointly with other officers who burned the victim's body to cover up the crime. United States v. McRae , 702 F.3d 806, 811–19, 824, 828 (5th Cir. 2012). The trial for the officer would have only lasted three days, but the joint trial lasted a month and focused largely on highly inflammatory evidence that was irrelevant to the murder. Here, the actions of McClaren and Fortia are not so easily separable from the overall conspiracy at issue in this case. While McClaren and Fortia correctly point out that their involvement was significantly less than the other defendants, the court did not abuse its discretion in denying the motion to sever.

B. Batson Challenges

Defendants used all eleven peremptory strikes against white jurors. The government challenged the strikes, and the district court seated three challenged jurors, two of whom served. Defendants argue that the court erred by not asking the prosecution to respond to the proffered race-neutral reasons for striking the jurors. Defendants maintain that their reasons for using peremptory strikes, such as a juror's past military service, were acceptable and non-pretextual. See J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 143 n.16, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

Prosecutors are allowed to challenge the defense's peremptory strikes as racially discriminatory. Georgia v. McCollum , 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Whether under McCollum or Batson , the three-step analysis is the same: (1) "the [party challenging the strike] must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose;" (2) once a prima facie case is made, the burden shifts to the striking party to offer a permissible race-neutral justification for the strike; (3) "if a race-neutral explanation is tendered," the trial court then decides "whether the opponent of the strike has proved purposeful racial discrimination." Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (internal quotation marks and citations omitted).

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