United States v. Rich

14 F.4th 489

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Kenneth RICH (18-2268/2269); Carey Dale VanDiver (18-2323/2324); Patrick Michael McKeoun (18-2342); Jeff Garvin Smith (18-2364/2365); David Randy Drozdowski (18-2401); Paul Anthony Darrah (18-2407/2408); Vincent John Witort (18-2410); Victor Carlos Castano (19-1028/1029), Defendants-Appellants.

Nos. 18-2268/2269/2323/ 2324/2342/2364/2365/ 2401/2407/2408/2410

19-1028/1029

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2021

Decided and Filed: September 13, 2021

Rehearing En Banc Denied November 16, 2021

ARGUED: Robert M. Morgan, Detroit, Michigan, for Appellant Michael Rich. Mark A. Satawa, Southfield, Michigan, for Appellant Carey VanDiver. Sidney Kraizman, Detroit, Michigan, for Appellant Patrick McKeoun. Craig A. Daly, CRAIG A. DALY, P.C., Detroit, Michigan, for Appellant Jeff Smith. Laura E. Davis, Knoxville, Tennessee, for Appellant David Drozdowski. Patricia A. Maceroni, Huntington Woods, Michigan, for Appellant Paul Darrah. Phillip D. Comorski, Detroit, Michigan, for Appellant Vincent Witort. Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant Victor Castano. Sheldon Light, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Robert M. Morgan, Detroit, Michigan, for Appellant Michael Rich. Mark A. Satawa, Southfield, Michigan, for Appellant Carey VanDiver. Sidney Kraizman, Detroit, Michigan, for Appellant Patrick McKeoun. Craig A. Daly, CRAIG A. DALY, P.C., Detroit, Michigan, for Appellant Jeff Smith. Laura E. Davis, Knoxville, Tennessee, for Appellant David Drozdowski. Patricia A. Maceroni, Huntington Woods, Michigan, for Appellant Paul Darrah. Phillip D. Comorski, Detroit, Michigan, for Appellant Vincent Witort. Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant Victor Castano. Sheldon Light, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: SUHRHEINRICH, GRIFFIN, and DONALD, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined. DONALD, J. (pp. 497-500), delivered a separate opinion concurring in part and dissenting in part.

GRIFFIN, Circuit Judge.

In many respects, we have seen this case before. When a motorcycle club shifts gears from sharing a fraternal interest in Harley-Davidsons to peddling drugs through violent means, convictions and lengthy sentences under the Racketeer Influenced and Corrupt Organizations Act (RICO) usually follow. See, e.g. , United States v. Odum , 878 F.3d 508 (6th Cir. 2017) ; United States v. Deitz , 577 F.3d 672 (6th Cir. 2009) ; United States v. Lawson , 535 F.3d 434 (6th Cir. 2008). These consolidated criminal appeals are no exception.

The federal government successfully prosecuted multiple members of the "Devils Diciples [sic] Motorcycle Club" (DDMC) for their role in a RICO enterprise that trafficked large quantities of drugs (namely methamphetamine) and engaged in numerous other illegal acts (like violent crimes, illicit gambling, thefts, and obstruction of justice). The district court imposed sentences that ranged from twenty-eight years to life in prison. Defendants have raised over seventy issues on appeal, none of which have merit. We affirm their convictions and sentences.

In this published opinion, we address two issues of first impression for our court: (1) the district court's use of future-tense language in its RICO conspiracy jury instructions; and (2) its application of a two-level sentencing enhancement for maintaining a drug premises under U.S.S.G. § 2D1.1(b)(12) via § 1B1.3(a)(1)(B) ’s relevant-conduct provision. For the reasons set forth below, we hold that the future-tense RICO conspiracy jury instructions accurately stated the law. In addition, we conclude that on these facts, the district court correctly applied the drug-premises enhancement through relevant conduct in United States v. Castano . We address all other issues in the unpublished appendix to this opinion.

I.

The substantive RICO offense, 18 U.S.C. § 1962(c), makes it "unlawful for any person employed by or associated with any enterprise engaged in ... interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." Section 1962(d) also renders it "unlawful for any person to conspire to violate any of the provisions" of § 1962, including § 1962(c). Defendants’ jury-instruction challenge here lies in the interplay between these two provisions.

Specifically, defendants argue that the district court's instructions were legally incorrect because it added future-tense language into each element of the offense, as follows:

[T]o convict a defendant on the RICO conspiracy offense based on an agreement to violate ... 1962(c) ... the Government must prove the following five elements beyond a reasonable doubt:

One, the existence of an enterprise or that an enterprise would exist.

Two, that the enterprise was or would be engaged in, or its activities affected or would affect interstate commerce.

Three, a conspirator was or would be employed by or associated with the enterprise.

Four, a conspirator did or would conduct or would participate in, directly or indirectly, the conduct of the affairs of the enterprise.

And five, a conspirator did or would knowingly participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity as described in the indictment; that is, a conspirator did or would commit at least two acts of racketeering activity.

If you find from your consideration of the evidence that each of these elements has been proven beyond a reasonable doubt as to a particular defendant, then you should find that defendant guilty on Count 1.

(Emphasis added). Based on these instructions, defendants claim that the jury was erroneously "instructed that none of the elements of a RICO offense ha[d] to exist, at any time" for a conviction. On de novo review, United States v. Pritchard , 964 F.3d 513, 522 (6th Cir. 2020), we disagree.

A.

We begin with Salinas v. United States , 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997). The issue before the Supreme Court in that matter was similar—whether § 1962(d) applied to a defendant who had participated in a bribery scheme but had not agreed to personally commit two of the predicate acts that RICO forbids. Id . at 54, 118 S.Ct. 469. In a unanimous decision, the Court rejected the argument that § 1962(d) required a defendant to agree to commit two predicate acts and instead applied well-established principles of conspiracy law to conclude that § 1962(d) was satisfied where "[a] conspirator ... intend[ed] to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense." Id. at 65, 118 S.Ct. 469. Accordingly, while a defendant must "adopt the goal of furthering or facilitating the criminal endeavor," he could do so "in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion." Id. Therefore, even though Salinas did not commit acts of racketeering himself, he "knew about and agreed to facilitate the scheme." Id. at 66, 118 S.Ct. 469. This, the Court said, was "sufficient to support a conviction under § 1962(d)." Id.

While Salinas did not decide the precise issue before us, several circuits have considered similar challenges to the one we address now in light of Salinas —namely, whether the government is required to prove the existence of the enterprise, or whether an agreement to create a racketeering enterprise suffices. See United States v. Harris , 695 F.3d 1125, 1133 (10th Cir. 2012) ; United States v. Applins , 637 F.3d 59, 73–74 (2d Cir. 2011) ; United States v. Fernandez , 388 F.3d 1199, 1223 n.13 (9th Cir. 2004). The instructions given by the district court here closely track the instructions at issue in Applins . See 637 F.3d at 72. In that matter, the Second Circuit determined that the jury instructions "properly allowed for conviction upon proof of an agreement to form an enterprise." Id. ; see also id. at 73–75. The Tenth Circuit's decision in Harris is in accord:

[ Salinas ’s] discussion of the difference between a § 1962(c) violation and a § 1962(d) violation leads us, like the Second Circuit, to conclude that just as the Government need not prove that a defendant personally committed or agreed to commit the requisite predicate acts to be guilty of § 1962(d) conspiracy, neither must the Government prove that the alleged enterprise actually existed.

695 F.3d at 1133.

We agree with the logic of our sister circuits. Section 1962(d) is a conspiracy offense, which as Salinas reminds us, criminalizes an agreement rather than any substantive criminal offense. In other words, an agreement to associate with and participate in a yet-to-be-formed racketeering enterprise that would affect interstate commerce constitutes a completed offense under § 1962(d). This is because an individual can "intend to further an endeavor which, if completed, would satisfy all elements of a [RICO offense]," Salinas , 522 U.S. at 65, 118 S.Ct. 469, even if the RICO enterprise is not yet formed. We heed the Supreme Court's instruction today.

The dissent comes to a contrary conclusion. However, it offers no rejoinder to our discussion of Salinas , which fuels our analysis. Nor does it offer any response to the well-reasoned decisions of our sister circuits. Further, the primary case it cites, Boyle v. United States , dealt not with whether the government must prove the existence of an enterprise to establish a violation of § 1962(d), but instead with the proper definition of an enterprise. See 556 U.S. 938, 945, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) ("[T]he specific question on which we granted certiorari is whether an association-in-fact enterprise must have ‘an ascertainable structure beyond that inherent in the pattern of...