USA v. Christopher Brian Cosimano, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14841
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER BRIAN COSIMANO,
a.k.a. Durty,
MICHAEL DOMINICK MENCHER,
a.k.a. Pumpkin,
Defendants-Appellants.
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____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00234-MSS-SPF-1
____________________
Before W ILSON, B RANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
This is an appeal from two defendants following a brutal
murder. Evidence at trial showed that Defendants-Appellants
Christopher Cosimano and Michael Mencher conspired to kill a
member of a rival motorcycle club and did so. After Cosimano,
Mencher, and several of their associates followed the victim, Paul
Anderson, for several miles on the highway, Cosimano brazenly
shot him to death at a traffic light in broad daylight. Mencher was
present at the murder scene and later told a confidential informant
that he would have shot the victim if Cosimano had been unable
to. The evidence also supported the jury’s finding that the murder
served to increase the Defendants’ status in their motorcycle club,
which was an enterprise engaged in interstate racketeering. Fur-
ther, the evidence supported a separate conviction for the Defend-
ants’ use of a firearm during a violent crime. While the Defendants
argue that murder is not categorically a crime of violence, our prec-
edent holds the contrary. The Defendants raise several additional
arguments on appeal, but none justify reversal. We thus affirm
their convictions.
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I. BACKGROUND
The Defendants were associated with the 69’ers Motorcycle
Club, a national organization with active chapters in several states.
Cosimano was president of the Hillsborough County Chapter
(nicknamed the Killsborough Chapter), Sean Leonard was vice
president, Erick Robinson was sergeant at arms, and Allan Guinto
was treasurer. Mencher and Cody James Wesling were “pro-
spects,” or prospective members.
In May 2018, a grand jury charged Cosimano, Mencher,
Robinson, Guinto, and Wesling in a nine-count indictment. A su-
perseding indictment followed two months later. Relevant to this
appeal, Count 1 charged conspiracy to commit murder in aid of
racketeering activity, 18 U.S.C. § 1959(a)(5), Count 2 charged mur-
der in aid of racketeering activity (VICAR murder), 18 U.S.C. §§
1959(a)(1) and 2, and Count 3 charged the Defendants with know-
ingly using, carrying, brandishing, and discharging a firearm during
and in relation to a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(iii)
and 2.
A month later, a federal agent interrogated Cosimano.
Leading up to the interrogation, Cosimano had been held on state
murder charges and had spent months in solitary confinement.
The agent told Cosimano at the outset that he had some paper-
work to go over. He then read Cosimano his
Miranda1 rights.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Cosimano confirmed that he understood his rights and signed the
waiver form, agreeing to talk with the agent. The agent told Co-
simano that he could not make “any promises” but that Cosimano
had “an opportunity to help [himself,] [t]o put [himself] in the best
possible position.” “I’m going to give you a lot of credit and . . . a
little [ ] grace,” he told Cosimano.
For the next five hours, Cosimano spoke—often emotion-
ally—about his experience with motorcycle clubs and drug dealing.
He also discussed a fight in a Miami bar between the 69’ers and a
rival gang, the Outlaws. At one point during the conversation, Co-
simano asked the agent if it would “favor” him to “put all the infor-
mation out.” The agent replied “I don’t know,” and then added
that honesty would “help [Cosimano] out.” Cosimano later moved
to suppress these statements. His waiver, he argued, was not vol-
untary, knowing, and intelligent because the agent had improperly
downplayed the
Miranda warnings. The district court denied the
motion, finding that “the defendant was well-aware of what he was
signing.” Some portions of Cosimano’s statements—those relating
to the Outlaws and the Miami incident—later came in at trial.
Before trial, Mencher and Cosimano joined in a motion to
dismiss filed by Wesling. The Defendants argued that the district
court should dismiss the Count 3 charge for use of a firearm during
and in relation to a crime of violence, 18 U.S.C. § 924(c). The pred-
icate “crime of violence” for Count 3 was the VICAR murder
charged in Count 2, which in turn was based on a violation of Flor-
ida’s first-degree murder statute. The Defendants argued that the
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predicate murder offense was not categorically a crime of violence
because it did not necessarily involve the use of physical force.
Florida first-degree murder, they posited, could be carried out non-
violently by poisoning or leaving a person for dead. The court de-
nied the motions.
As the case proceeded to trial, Cosimano and Mencher were
the only remaining defendants. They moved to sever their trials,
arguing that they planned to raise mutually antagonistic defenses.
Specifically, both Defendants planned to point the finger at the
other. “Spillover” effect also concerned the Defendants; they wor-
ried that the government would be able to introduce evidence in a
joint trial that would be inadmissible if the trials were severed. But
after the Defendants reached an agreement with the government
about redacting certain statements to limit spillover effect, the
court denied the motions to sever as moot. The court would later
give a limiting instruction reminding the jury to consider each
count and each defendant separately.
At trial, the government called Guinto and Wesling, who
had taken plea agreements, as well as Leonard and a regional 69’ers
boss, Art Siurano, who had agreed to cooperate with the govern-
ment. The government also called a slew of other witnesses in-
cluding another eye witness to the shooting. The following evi-
dence was presented.
The 69’ers motorcycle club is a “one-percent” club, meaning
its members are the “elite[s] of the outlaw biker world” and the one
percent of society that “live by their own rules.” The club has a
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6 Opinion of the Court 19-14841
written constitution and an organizational hierarchy. Club mem-
bers pay annual dues of $50 to the New York Chapter. And accord-
ing to Siurano, northeast-based chapters of the 69’ers have coordi-
nated with Florida-based chapters to distribute drugs.
Leading up to Anderson’s murder, the Florida-based 69’ers
were at odds with a rival motorcycle club, the Outlaws. To tell it
briefly, the Outlaws considered Florida their territory. When some
Outlaws, including Leonard, defected and joined Florida chapters
of the 69’ers, the Outlaws were not pleased. Tensions soon boiled
over. One night, when a St. Petersburg, Florida bar hosted a “Bike
Night,” Leonard and Guinto showed up to represent the 69’ers.
The Outlaws were there too—and in greater numbers. Several of
the Outlaws, including Pasco County President Paul Anderson,
confronted Leonard and Guinto and demanded that they hand
over their club vests—called “cuts” in the biker world—or die in
them. When Leonard and Guinto refused to comply, the Outlaws
attacked them, beat them badly, and stole their cuts.
About a week later, federal law enforcement arrested Leon-
ard on a firearms charge in New York. He entered an agreement
with the government and became a federal informant.
Meanwhile, animosity between the 69’ers and the Outlaws
mounted. Cosimano wanted revenge against the Outlaws for the
Bike Night incident. A national 69’ers boss also wanted retribution
and said the “score would not be settled until two [Outlaws] go to
the hospital and we have two of their cuts.” As Siurano put it, the
69’ers and the Outlaws “were going to war.”
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One day in late July 2017, Cosimano called Guinto and said
he was outside a St. Petersburg bar that the Outlaws frequented.
Eventually, a prominent Outlaw came out of the bar and left on his
motorcycle. It was James Costa, President of the St. Petersburg
Outlaws. Minutes later Costa was shot on the highway. Guinto
testified that Cosimano admitted to being the shooter later that
night. According to Guinto, Cosimano gave him and Wesling
clothes and a gun with instructions to get rid of them. Guinto tes-
tified that his assistance increased his stature in the club, and that
the 69’ers expected the shooting to bolster their reputation.
Hostility between the clubs showed no sign of dissipating.
Following the Bike Night incident, Cosimano had galvanized the
Killsborough 69’ers to engage in “shows of force” to antagonize the
Outlaws. In response, a contingent of Outlaws called the One Ton
Crew, led by Anderson, had threatened to take more cuts from
Killsborough Chapter members. Then, while Cosimano and a fel-
low 69’er were in Miami, they got in a bar fight with some Outlaws.
In the melee, Cosimano allegedly hit one Outlaw with a plate and
used a piece of broken plate to stab another.
This was the state of affairs on December 21, 2017, the day
Anderson was murdered. Around midday, Guinto, Robinson, and
Wesling were out having lunch when Cosimano called. He said he
knew where an Outlaw was and told the group to meet him at the
69’ers’ clubhouse. When they arrived, Cosimano and Mencher
were “getting their bikes ready . . . [, ] gearing up for a ride.” Wes-
ling would later tell Leonard that, at this point, Cosimano said he
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was going to murder Anderson. At trial, however, Wesling testi-
fied that Cosimano said he knew where Anderson was and wanted
to “beat the shit out of him.”
The group left to go after Anderson. Guinto and Robinson
took one car, Wesling drove another, and Cosimano and Mencher
took their motorcycles. Normally, Cosimano and Mencher wore
their 69’er cuts when they rode. This time, they rode without their
cuts, dressed in black, and covered their faces with bandanas. They
also flipped their license plates, making them unidentifiable, and
Cosimano removed the 69’ers stickers from his motorcycle.
At some point, the group caught up with Anderson, who
was driving a pickup truck. They followed him for about a half
hour. After Anderson passed through a toll booth off the Suncoast
Parkway, he came to a stop at a red light. Guinto and Robinson
had fallen behind, but Wesling was still on Anderson’s tail. Accord-
ing to Wesling, Cosimano and Mencher then passed him on their
motorcycles and pulled up close to Anderson’s truck—Cosimano
on the passenger side, Mencher 10 to 15 feet behind him. Cosim-
ano dismounted his bike and knocked on Anderson’s truck win-
dow. He then fired multiple gunshots into the truck, killing Ander-
son.
Besides Wesling, another driver on the road witnessed the
shooting. Although he could not identify the Defendants, he testi-
fied about the motorcycles he saw. He said the motorcycle in
front—the one that pulled up next to Anderson’s truck—had sad-
dlebags and a windshield. That description matched Cosimano’s
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motorcycle. And the motorcycle behind that one, the witness tes-
tified, had graphics of “SS lightning bolts.” That description
matched Mencher’s motorcycle.
The 69’ers left the scene after the shooting. According to
Guinto, they stopped when they got to a secluded area. Cosimano
gave Robinson a handgun, helmets, and a sweater to dispose of.
And Cosimano and Mencher changed into extra clothes they had
brought with them. Wesling testified that he met Cosimano at a
gas station a few hours later, and the two discussed the shooting.
Cosimano told Wesling he had shot Anderson to protect Leonard.
As for Mencher, he had phone conversations with Leonard
after the killing, not realizing that Leonard was a confidential in-
formant and that law enforcement was recording the call. By this
time, news stories had shown pictures of both Defendants’ motor-
cycles, so the two discussed how they would hide or disguise the
bikes. Cosimano, who was with Mencher, chimed in, telling Leon-
ard that one of the motorcycles had already been “changed . . . up,”
while the other needed to be hidden. Later, when Mencher was by
himself, he spoke again with Leonard, venting that Cosimano’s
plan to attack Anderson had been ill-conceived. “I don’t mind do-
ing things,” Mencher said, “but not in broad daylight.” Mencher
also said that he would have shot Anderson from behind if Ander-
son had tried to get away. “I would’ve just opened up into the back
of him, you know what I mean?”
At the close of the government’s case in chief, the Defend-
ants moved for judgment of acquittal. They argued in part that
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there was insufficient evidence to establish an enterprise engaged
in racketeering activity and that affected interstate commerce.
They also argued that first-degree murder could not serve as the
predicate crime of violence for the § 924(c) count. The court de-
nied the motions. The jury began deliberating on the eighth day
of trial.
An issue arose during deliberations. One of the jurors, Juror
3, did his own research on the law during a weekend break. When
deliberations resumed, he discussed his research with the other ju-
rors. The foreperson notified the court, after which the court in-
terviewed each of the jurors individually. Juror 3 admitted what
he had done. As for the other jurors, the court’s inquiry established
that some had trouble understanding Juror 3, whose first language
was not English, and that most paid little attention to his explana-
tion of the law. The jurors assured the court that they could decide
the case based on the evidence and the law the court had given
them. Having investigated, the district court decided to remove
Juror 3 and replace him with an alternate juror. Cosimano agreed
with this course of action, but Mencher moved for a mistrial. The
district court denied Mencher’s motion, replaced Juror 3, and had
the jury “begin its deliberations anew.”
The jury convicted Mencher and Cosimano on Counts 1–4
and acquitted them on other counts, some of which charged Co-
simano for his alleged role in the Costa shooting and another of
which charged Mencher with drug trafficking. The government
dismissed Count 4 at sentencing, so the district court sentenced
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Mencher and Cosimano only on Counts 1–3. The court sentenced
both Defendants to 10 years on Count 1 to run concurrently with
a life sentence on Count 2. On Count 3, Cosimano received a 10-
year sentence, and Mencher a 5-year sentence, to run consecutively
to the Count 1 and 2 sentences. Both Defendants appealed.
II. DISCUSSION
Our discussion divides into three parts. First, we address the
Defendants’ argument that the district court should have granted
judgment of acquittal on Counts 1 and 2 for conspiracy to commit
VICAR murder and VICAR murder. Second, we address the De-
fendants’ argument that their Count 3 conviction for committing a
crime of violence with a firearm should be vacated because the
predicate murder charge is not categorically a crime of violence.
Third, we address the Defendants’ remaining arguments. This
third section divides into three subsections: (1) the Defendants’ ar-
gument that the district court abused its discretion in denying their
motion to sever the trial, (2) Cosimano’s argument that his post-
Miranda statements should have been suppressed; and (3)
Mencher’s argument that the district court abused its discretion in
denying his motion for a new trial based on juror misconduct.
A. Sufficient Evidence Supported the Verdict on Counts 1 and
2
We review the sufficiency of the evidence de novo, drawing
all reasonable inferences in the government’s favor.
United States
v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). We must affirm
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12 Opinion of the Court 19-14841
the convictions unless there is no reasonable construction of the
evidence on which the jury could have found the Defendants guilty
beyond a reasonable doubt.
Id. at 1334.
On Counts 1 and 2, the government had to prove that Co-
simano and Mencher conspired to murder Anderson, that they
aided and abetted each other in murdering him, and that the De-
fendants committed those crimes for the purpose of “maintaining
or increasing position in an enterprise engaged in racketeering ac-
tivity.” 18 U.S.C. § 1959(a). An enterprise includes “any . . . group
of individuals associated in fact although not a legal entity, which
is engaged in, or the activities of which affect, interstate or foreign
commerce.”
Id. § 1959(b)(2). “[R]acketeering activity” is defined
as “any act or threat involving murder, kidnapping, gambling, ar-
son, robbery, bribery, extortion, dealing in obscene matter, or deal-
ing in a controlled substance or listed chemical . . . , which is charge-
able under State law and punishable by imprisonment for more
than one year.”
Id. § 1961(1).
Mencher and Cosimano make three main arguments. First,
they challenge the sufficiency of the evidence showing that they
conspired to murder Anderson or aided and abetted his murder.
Second, they argue that the 69’ers’ Killsborough Chapter was not a
racketeering enterprise engaged in interstate commerce. Third,
they argue that the murder would not have served to maintain or
increase their position with the 69’ers.
The Defendants’ first argument relies heavily on testimony
from Wesling, who was present at the scene of the murder.
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Wesling testified that on the morning of the murder Cosimano had
said that he wanted to “beat the shit out of Anderson.” That testi-
mony, the Defendants say, establishes that the plan was to beat up
Anderson rather than kill him. They argue that the evidence, at
most, showed that the murder was a “spur of the moment” deci-
sion. There was no evidence of any advance planning, they say.
Yet the following facts allow an inference to the contrary:
• As the Defendants left the clubhouse to follow Anderson,
they brought extra clothes with them, indicating a plan to
hide their identity.
• They flipped their license plates to hide them and did not
wear their 69’er cuts as they normally would on a motorcy-
cle ride.
• The Defendants tracked Anderson for miles, and, according
to witnesses, Cosimano shot Anderson through the window
of his truck.
• After the killing, Mencher’s remarks on a recorded call with
a confidential informant supported an inference that he
knew the plan was to kill Cosimano. Mencher even bragged
that he would have killed Anderson if Cosimano was unable
to.
Based on this evidence, a reasonable jury could conclude
that the Defendants conspired to kill Anderson, and that they aided
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and abetted each other in his murder.
The Defendants also contest the jury’s finding that their lo-
cal chapter of the 69’ers was an enterprise. Instead, they say, it was
no more than a disorganized group of guys partying in a clubhouse.
And even if it could be considered an enterprise, they argue, it was
not a racketeering enterprise that affected interstate commerce.
While some of the 69’ers sold drugs, the Defendants argue that
drug dealing was separate from membership in the 69’ers.
We disagree. The definition of “enterprise” is broad.
United
States v. Cagnina, 697 F.2d 915, 921 (11th Cir. 1983). An enterprise
may be a “loose or informal,” even “amoeba-like” association.
Id.
That standard is easily met here. The 69’ers are a national motor-
cycle club that holds meetings, has a constitution, and requires
members to pay dues. Members wear vests with a wolf on the cen-
ter patch, and the club has used “shows of force” to assert their
dominance over other motorcycle clubs. The Killsborough Chap-
ter was part of that organization and held meetings on the first and
third Thursdays of every month. Even if the group was not highly
formalized, a jury could conclude that it was an association in fact
and thus an enterprise under the statute.
See 18 U.S.C. § 1959(b)(2).
And there was evidence that the 69’ers operated as a racket-
eering enterprise that affected interstate commerce. For example,
Siurano testified that he sent drugs from New Jersey to Florida-
based 69’ers, including Robinson, who then distributed the drugs.
Drug trafficking is a type of racketeering.
Id. § 1961(1). And it is
enough to satisfy the government’s burden that the enterprise—
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19-14841 Opinion of the Court 15
not necessarily each individual—engaged in racketeering and con-
duct that affected interstate commerce.
See United States v. Nor-
ton, 867 F.2d 1354, 1359 (11th Cir. 1989). The evidence thus sup-
ported the jury’s finding on these elements.
The Defendants’ final argument on sufficiency of the evi-
dence is that the murder would not have served the purpose of
maintaining or increasing their position in the 69’ers. Again, we
disagree. The 69’ers’ national leadership wanted to settle a score
with the Outlaws, and there was evidence that Anderson’s murder
was meant to settle that score. A reasonable jury thus could have
inferred that the murder served to increase or maintain the Defend-
ants’ status in the 69’ers organization.
B. Florida First-Degree Murder Is a Crime of Violence
Count 3 of the indictment charged the Defendants with vio-
lating 18 U.S.C. § 924(c)(1)(A), which makes it a crime to use, carry,
or possess a firearm during a crime of violence. The predicate
crime of violence charged was VICAR murder, 18 U.S.C. §
1959(a)(1), “as charged in Count Two” of the indictment. Count 2,
in turn, charged VICAR murder based on a violation of Florida’s
first-degree murder statute, Fla. Stat. § 782.04(1)(a)1. The Defend-
ants challenge their Count 3 convictions, arguing that the predicate
murder offense was not a crime of violence.
“[W]e review de novo whether a prior conviction is a crime
of violence under § 924(c).”
Steiner v. United States, 940 F.3d 1282,
1288 (11th Cir. 2019) (per curiam). This analysis generally requires
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a “categorical approach,” in which we look only to the elements of
the statute of conviction, not to the defendant’s real-world con-
duct.
Mathis v. United States, 579 U.S. 500, 504 (2016). When ap-
plying the categorical approach to § 924(c), we must ask whether
the offense at issue “always requires the government to prove—
beyond a reasonable doubt, as an element of its case—the use, at-
tempted use, or threatened use of force.”
United States v. Taylor,
142 S. Ct. 2015, 2020 (2022). We alter our approach, however,
when the statute of conviction is “divisible,” meaning the statute
lists multiple, alternative elements, effectively creating multiple
crimes.
Mathis, 579 U.S. at 505. When dealing with a divisible stat-
ute, we employ a “modified categorical approach” in which we
consider “a limited class of documents (for example, the indict-
ment, jury instructions, or plea agreement and colloquy) to deter-
mine what crime, with what elements, a defendant was convicted
of.”
Id. at 505–06 (citing
Shepard v. United States, 544 U.S. 13, 26
(2005))
. We “then compare that crime, as the categorical approach
commands, with the relevant generic offense.”
Id. at 506.
We recently held that the VICAR statute is divisible.
Al-
varado Linares v. United States, No. 19-14994, --- F.4th ----, 2022
WL 3367950, at *4 (11th Cir. Aug. 16, 2022). The statute prohibits
a number of offenses committed in aid of racketeering, including
murder, maiming, assault, and threats “to commit a crime of vio-
lence against any individual in violation of the laws of any State or
the United States.”
Id. (citing 18 U.S.C. § 1959(a)). “Because the
statute lists multiple acts that each qualify as a crime, we apply the
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19-14841 Opinion of the Court 17
modified categorical approach to determinate whether a VICAR
offense is a ‘crime of violence’ under Section 924(c)(3).”
Id.
A point of confusion in this case, however, has been which
murder offense we look to for purposes of the modified categorical
approach. Do we look through the VICAR statute to its state pred-
icate offense and analyze whether Florida first-degree murder is a
crime of violence? Or do we analyze whether a generic federal def-
inition of murder is categorically a crime of violence?
Our recent decision in
Alvarado Linares resolves this di-
lemma. We must look to how the government charged the VICAR
offense, and when, as here, it incorporated the state law elements
into the jury charge for the VICAR offense, then we must look to
the state predicate offense, in this case Florida first-degree murder.
See id. That statute prohibits “[t]he unlawful killing of a human
being . . . [w]hen perpetrated from a premeditated design to effect
the death of the person killed or any human being.” Fla. Stat. §
782.04(1)(a)1.
Under our precedents, Florida first-degree murder is a crime
of violence. In the Armed Career Criminal Act (ACCA)2 context,
we’ve held that Florida attempted first-degree murder and Florida
second-degree murder are crimes of violence.
See Hylor v. United
States, 896 F.3d 1219, 1223 (11th Cir. 2018);
United States v. Jones,
906 F.3d 1325, 1329 (11th Cir. 2018). And in the § 924(c) context,
2 ACCA’s elements clause is materially similar to that of § 924(c).
Hylor v.
United States, 896 F.3d 1219, 1225 (11th Cir. 2018) (Jill Pryor, J., concurring).
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18 Opinion of the Court 19-14841
we’ve held the same as to Georgia malice murder and federal sec-
ond-degree murder.
See Alvarado Linares, 2022 WL 3367950, at *5
(Georgia malice murder, prohibiting the killing of another person
with malice aforethought, “necessarily entails the use of physical
force against the person of another.”)3;
Thompson v.
United States, 924 F.3d 1153, 1158 (11th Cir. 2019) (Federal second-
degree murder, prohibiting the killing of another person with mal-
ice aforethought, necessarily involves force “capable of causing
physical pain or injury” thus satisfying § 924(c).). Naturally, then,
the same is true of Florida first-degree murder in the context of §
924(c).
Resisting this conclusion, the Defendants argue that it is pos-
sible to commit Florida first-degree murder without physical force.
They posit a few examples, like this one: “[A] defendant takes a
boat far offshore with a victim who jumps off the boat to go swim-
ming and the defendant later decides to drive the boat away and
leave the victim stranded in the ocean to die.” In this example, the
Defendants say, the elements of Florida first-degree murder would
be satisfied even though the offense did not involve physical force.
We’ve heard arguments like this before, and we’ve rejected
them. Take our decision in
United States v. Sanchez, 940 F.3d 526,
3 We added that, to the extent it was relevant, generic federal murder also
meets the definition of a crime of violence because it entails “the unlawful
killing of a human being with malice aforethought.”
Alvarado Linares v.
United States, No. 19-14994, --- F.4th ----, 2022 WL 3367950, at *6 (11th Cir.
Aug. 16, 2022).
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536 (11th Cir. 2019). There, the defendants argued that New York
second-degree murder is not a violent felony for purposes of the
ACCA because it can be committed nonviolently by, for example,
starving a person to death.
Id. at 535. Unpersuaded, we reasoned
that “the intentional causation of bodily injury or death, even by
indirect means such as withholding medical treatment or food, nec-
essarily involves the use of physical force.”
Id. “[I]t is impossible,”
we held, “to cause bodily injury without force” and thus “impossi-
ble to cause death without force.”
Id. at 536. The Defendants’
drowning example fails for the same reason. Subjecting a victim to
death by drowning would involve the use of force, even if indi-
rectly.
The bottom line: to commit Florida first-degree murder, a
defendant must unlawfully kill another human with a premedi-
tated design. Fla. Stat. § 782.04(1)(a)1. To do that, a defendant
necessarily must use physical force.
See Sanchez, 940 F.3d at 536.
We thus hold that the offense is categorically a crime of violence
and a proper predicate for the Defendants’ § 924(c) convictions.
C. None of the Defendants’ Other Arguments Justify Reversal
1. Motions to Sever the Trial
The next argument raised by the Defendants is that the dis-
trict court abused its discretion in allowing a joint trial. They argue
first that they presented mutually antagonistic defenses. Mencher’s
attorney, for example, argued at trial that Cosimano “set
[Mencher] up to take the fall for the killing.” Second, the
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Defendants argue that the joint trial allowed the government to
admit damaging evidence that would otherwise have been inad-
missible. Specifically, Mencher zeroes in on evidence of the Costa
shooting. If Mencher had been tried separately, he says, the jury
never would have heard about that incident because it took place
before he joined the 69’ers and he played no role in that shooting.
Cosimano, for his part, argues that evidence of Mencher’s drug
dealing, based on Mencher’s own statements, was admissible only
under the statement-of-a-party-opponent hearsay exception. That
evidence would have been inadmissible had Cosimano been tried
separately.
The government responds that mutually antagonistic de-
fenses are not necessarily prejudicial. As to spillover evidence, the
government says any prejudice was ameliorated by the district
court’s limiting instruction that the jury should consider the evi-
dence as to each defendant and each count separately.
We review the denial of a motion to sever for abuse of dis-
cretion.
United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir.
2002). Generally, a joint trial is preferred when defendants are in-
dicted together.
Zafiro v. United States, 506 U.S. 534, 537 (1993).
District courts should grant a severance “if there is a serious risk
that a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable judg-
ment about guilt or innocence.”
Id. at 539. “Mutually antagonistic
defenses,” however, “are not prejudicial
per se.”
Id. at 538. In fact,
“the best solution in such situations,” generally, “is not severance,
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19-14841 Opinion of the Court 21
but for the trial judge to issue proper limiting instructions.”
United
States v. Blankenship, 382 F.3d 1110, 1125 n.27 (11th Cir. 2004).
We’ve offered the caveat that a limiting instruction may be insuffi-
cient in a scenario where “the sheer number of defendants and
charges with different standards of proof and culpability, along
with the massive volume of evidence, makes it nearly impossible
for a jury to juggle everything properly and assess the guilt or in-
nocence of each defendant independently.”
Id. at 1124.
Here, it is true that the joint trial had some spillover effect.
Evidence of the Costa shooting may not have been otherwise ad-
missible against Mencher, and evidence of Mencher’s drug dealing
may not have been otherwise admissible against Cosimano. But
the evidence was not so voluminous that it would have been
“nearly impossible” for the jury to sort through and to determine
guilt as to each defendant on each charge.
See id. As a result, the
district judge’s decision to give a limiting instruction rather than
sever the trial was not an abuse of discretion.
See Zafiro, 506 U.S.
at 539. We thus affirm.
2. Motion to Suppress Cosimano’s Post-Miranda
Statement
Cosimano’s final argument is that the district court erred in
denying his motion to suppress statements he made during a cus-
todial interrogation. He argues that the agent improperly down-
played the
Miranda warnings,4 rendering them meaningless—
4 Cosimano also argues that his rights were violated under
Edwards v. Ari-
zona, 451 U.S. 477, 484–85 (1981) (holding that once a defendant has
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22 Opinion of the Court 19-14841
particularly given Cosimano’s fragile emotional state at the time.
In reviewing the denial of a motion to suppress, we review
the district court’s factual findings for clear error and its application
of the law de novo.
United States v. Watkins, 760 F.3d 1271, 1282
(11th Cir. 2014). A defendant may waive his right to remain silent,
but the waiver must be voluntary, knowing, and intelligent.
Mi-
randa v. Arizona, 384 U.S. 436, 444 (1966). Police are not to give
Miranda warnings in a manner that is coercive or misleading.
United States v. Beale, 921 F.2d 1412, 1435 (11th Cir. 1991). A
Mi-
randa waiver is effective “if the totality of the circumstances sur-
rounding the interrogation reveal both an uncoerced choice and
the requisite level of comprehension.”
United States v. Barbour,
70 F.3d 580, 585 (11th Cir. 1995) (internal quotation marks omit-
ted).
Cosimano relies heavily on our decision in
Beale, where we
found
Miranda warnings to be misleading because an investigator
told a defendant that waiving his rights “would not hurt him.”
Beale, 921 F.2d at 1435. That promise, we held, contradicted the
warning that the defendant’s statements could be used against him
in court.
Id.;
see also Hart v. Att’y Gen. of State of Fla., 323 F.3d
884, 894–95 (11th Cir. 2003) (finding
Miranda warnings misleading
“expressed his desire to deal with the police only through counsel, [he] is not
subject to further interrogation by the authorities until counsel has been made
available to him”). Since Cosimano did not request to have counsel present
while he was questioned,
Edwards does not help him. We thus analyze his
claim under
Miranda.
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19-14841 Opinion of the Court 23
where a defendant was promised that honesty would not hurt
him).
This case, however, is distinguishable from
Beale and
Hart.
True, the agent told Cosimano that honesty could “help” him and
put him “in the best possible position.” But the agent made no
promises. To the contrary, the agent told Cosimano: “I’m not
making you any promises, okay? I literally, I cannot do it.” And
although Cosimano may have been in an emotionally vulnerable
state during the interview, the district court found that he “was
well-aware of what he was signing.” Because the record does not
establish that this finding was clearly erroneous, we affirm.
3. Motion for New Trial Because of Juror Misconduct
Mencher’s final argument is that the district court should
have declared a mistrial based on juror misconduct.
We review for abuse of discretion a district court’s denial of
a motion for mistrial based on the jury’s exposure to extrinsic in-
formation.
United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.
2012). A mistrial is required only if the extrinsic evidence posed a
reasonable possibility of prejudice to the defendant.
Id. The gov-
ernment has the burden to show that any exposure to extrinsic ev-
idence was harmless.
Id. Factors relevant to this determination
include: “(1) the nature of the extrinsic evidence; (2) the manner in
which the information reached the jury; (3) the factual findings in
the district court and the manner of the court’s inquiry into the
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24 Opinion of the Court 19-14841
juror issues; and (4) the strength of the government’s case.”
United
States v. Ronda, 455 F.3d 1273, 1300 (11th Cir. 2006).
To be sure, it was improper for Juror 3 to research the law
himself and share his findings with his fellow jurors. But, im-
portantly, each of the jurors assured the court that he or she would
follow the law and the court’s instructions. Based on the court’s
interview with the jurors, any exposure to extrinsic evidence was
harmless. It did not appear that the jurors took to heart what they
heard from Juror 3—much less that it would have prevented them
from fulfilling their oaths. Therefore, the district court’s decision
to replace the wayward juror rather than declare a mistrial was not
an abuse of discretion.
III. CONCLUSION
In summary, sufficient evidence supports the jury’s verdict,
and none of the trial errors alleged by the Defendants warrants re-
versal. We thus affirm.
AFFIRMED.
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