United States of America v. Grady, EPPERLY & FOLLIS, P.C., Richmond, Virginia, for

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5048
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN BATTS, a/k/a K-Smooth,
Defendant - Appellant.
No. 04-5049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER M. BROWN,
Defendant - Appellant.
No. 04-5050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus

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MARIO L. ALLEN,
Defendant - Appellant.
No. 04-5051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN LANGSTON, a/k/a Little One,
Defendant - Appellant.
No. 04-5052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTOINE D. ALLEN, a/k/a Ski,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (CR-03-394)
Argued: February 3, 2006 Decided: March 21, 2006

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Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Charles Manley Allen, Jr., GOODMAN, ALLEN & FILETTI, Glen
Allen, Virginia, for Appellants. Roderick Charles Young, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Carolyn V. Grady,
EPPERLY & FOLLIS, P.C., Richmond, Virginia, for Appellant
Christopher M. Brown; Jeffrey L. Everhart, RICE, EVERHART & BABER,
Richmond, Virginia, for Appellant Mario L. Allen; Samuel P.
Simpson, V, Richmond, Virginia, for Appellant Kevin Langston; James
Mark Nachman, NACHMAN & KAUFMAN, L.L.P., Richmond, Virginia, for
Appellant Antoine D. Allen. Paul J. McNulty, United States
Attorney, Michael J. Elston, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Kevin Batts, Christopher Brown, Kevin Langston, Mario
Allen, and Antoine Allen appeal their convictions and sentences for
Racketeer Influenced and Corrupt Organizations Act (RICO)
conspiracy and conspiracy to distribute cocaine base. We affirm
the convictions. Applying United States v. Booker, 543 U.S. 220
(2005), we vacate the sentences of Batts, Brown, and Langston and
remand their cases for resentencing. We affirm the sentences of
Mario Allen and Antoine Allen.
I.
A grand jury in the Eastern District of Virginia handed
down a third superseding indictment against the five defendants in
March 2004. The indictment charged two counts: (1) RICO
conspiracy, 18 U.S.C. § 1962(d), and (2) conspiracy to distribute
and possess with intent to distribute cocaine base, 21 U.S.C.
§ 846. The indictment alleged the following. The defendants were
members of the Third Ward Gang, a street gang that engaged in
extensive open-air sales of cocaine base, or crack, in a section of
Petersburg, Virginia. The gang was organized into three factions:
the Hill Top Posse, the Bottom, and the Dirty Spurs. Together the
factions protected their sales territory and promoted their
identity through violent acts. Among these acts were the murder of
Robert Brabson, Jr. and the attempted murder of DeAndrew Carter.

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The defendants pleaded not guilty and proceeded to trial.
The district court's pretrial discovery order required the
government to provide written summaries of its expert testimony no
more than seven days prior to trial. The government identified an
FBI agent, John Lanata, as a gang expert, but the government’s
written submission did not identify the bases and reasons for his
opinions as required by Rule 16 of the Federal Rules of Criminal
Procedure. Before trial the defendants objected to Lanata's
testimony under both the procedural rule and Rule 702 of the
Federal Rules of Evidence. The district court denied both the
procedural objection and the evidentiary objection, allowing Lanata
to testify at trial.
The defendants moved for acquittal at the conclusion of
the government's case-in-chief, and the district court denied the
motions. At closing argument defense counsel contended that to
prove Mario Allen and Antoine Allen committed first-degree murder
in shooting Brabson (a racketeering activity under Count 1), the
government was required to show that they intended to kill Brabson.
In its rebuttal the government argued that the concept of
transferred intent allowed the jury to find an intent to kill
Brabson based on an intent to kill Carter, the shooters' actual
target.
The jury returned guilty verdicts as to all defendants on
the two counts. In November 2004, pursuant to United States v.

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Hammoud, 378 F.3d 426 (4th Cir.) (order), opinion issued by 381
F.3d 316, 353-54 (4th Cir. 2004) (en banc), cert. granted and
judgment vacated, 125 S. Ct. 1051 (2005), the district court
announced two sentences for each defendant: the actual sentence
treating the United States Sentencing Guidelines as mandatory, and
an alternate sentence treating the guidelines as advisory. For
Mario Allen and Antoine Allen, the actual and the alternate
sentences were identical sentences of life in prison; for the
remaining defendants, each alternate sentence was shorter than the
actual sentence.
II.
The defendants first argue that the trial evidence was
insufficient to sustain the jury's verdict of guilt. In
particular, the defendants contend that there was not enough
evidence to prove (A) Count 1's allegation that the Third Ward Gang
was a racketeering organization subject to RICO, or (B) Count 2's
allegation that the gang members had formed an agreement to
distribute drugs. The jury's verdict "must be sustained if there
is substantial evidence, taking the view most favorable to the
Government, to support it." United States v. Glasser, 315 U.S. 60,
80 (1942).

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A.
The defendants argue that they were entitled to acquittal
on the RICO conspiracy count because there was not enough evidence
to show the Third Ward Gang was an "enterprise" covered by the
statute. They claim a lack of evidence that the gang had a
discernible hierarchy with superior and subordinate members. They
also claim that in selling drugs there was competition, not
cooperation, among the gang members.
A RICO "enterprise" is a "group of persons associated
together for a common purpose of engaging in a course of conduct,"
which is "proved by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as
a continuing unit." United States v. Turkette, 452 U.S. 576, 583
(1981). We have held that a RICO enterprise is characterized by
"continuity, unity, shared purpose and identifiable structure."
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994).
We affirm because substantial evidence supports the
jury's conclusion that the Third Ward Gang was a racketeering
enterprise. Although the defendants assume an "identifiable
structure" can only be proven by evidence of a distinct hierarchy,
they cite no precedent imposing such a requirement. Nor does
internal competition prevent the gang from being an enterprise.
See United States v. Fernandez, 388 F.3d 1199, 1224 (9th Cir. 2004)
(conflict between gang factions supported enterprise

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characterization because opponents were jockeying for "position
within and control of the organization").
The government's witnesses testified that the common
purpose of the gang was dealing crack cocaine, a goal pursued
regularly for many years. For example, witness Ernest Booker
testified that gang members "looked out for the police for one
another" and protected each other when they went to clubs. J.A.
539. He also testified that when a member ran out of drugs he
routinely referred his customers to other gang members. In
addition, witness Ronald Blowe testified that gang members took
turns selling "[s]o everybody can get a sale," J.A. 672, and that
some gang members gave orders that others obeyed. The evidence
also showed Third Ward Gang members committed violent crimes to
intimidate rivals (such as the "Carter Boys" from the city's Fifth
Ward) and preserve turf.
This evidence was sufficient to prove that the Third Ward
Gang was an ongoing organization with a structure and the shared
purpose of enriching members and preserving the gang's power over
its section of Petersburg. In sum, substantial evidence supports
the jury's guilty verdicts on Count 1.
B.
The defendants argue that the evidence was insufficient
to sustain their convictions on Count 2 because they often competed

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with one another in selling drugs and their common association with
the gang is not enough to show agreement. To prove conspiracy to
distribute a controlled substance, the government must establish
that: (1) two or more persons agreed to distribute the substance;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
The government’s evidence was sufficient to establish
that the defendants all were members of the Third Ward Gang, that
they sold drugs within a defined territory, and that they barred
outsiders from selling drugs within that territory. For example,
witness Fred Jones identified all defendants (except Batts) as his
"fellow drug dealers," J.A. 451, and he identified Batts as a
member of the Spurs sub-gang. Jones also indicated that only Third
Ward Gang members were allowed to sell within the gang's defined
territory. This evidence shows that gang members tacitly agreed to
maintain their control over the crack "market" in the neighborhood.
The defendants cooperated by, for example, "look[ing] out for the
police for one another." J.A. 539.
Thus, substantial evidence supports the jury’s verdicts
on Count 2 that convicted the defendants of conspiracy to deal in
crack.

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III.
The defendants next argue that they suffered prejudice
when the district court (A) allowed expert Lanata to testify, and
(B) permitted the government to explain the concept of transferred
intent in its rebuttal closing argument even though the jury never
received an instruction on that concept.
A.
The defendants press two arguments that Lanata's expert
testimony for the government should have been excluded. First,
they argue that the government's brief disclosure of the content of
Lanata's opinion did not comply with Fed. R. Crim. P. 16(a)(1).
The government retorts that it obeyed the rule by providing
Lanata's name and curriculum vitae four months before trial,
summarizing his testimony in responding to the defense motion to
exclude, and making him available for cross-examination at the
pretrial evidentiary hearing.
Fed. R. Crim. P. 16 (a)(1)(G) requires that the
government furnish, upon the defendant's request, a written summary
of any expert testimony that the government intends to use under
Fed. R. Evid. 702, 703, or 705 during its case-in-chief at trial.
The summary must describe the witness's opinions, the bases and
reasons for those opinions, and the witness's qualifications. Even
where there has been an abuse of discretion, reversal is

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inappropriate unless the defendant establishes prejudice by
demonstrating that it is likely that had the government complied
with the discovery rule (not had the evidence been suppressed), the
verdict would have been different. See United States v. Chastain,
198 F.3d 1338, 1348 (11th Cir. 1999).
Assuming without deciding that the government's
disclosure did not satisfy the requirements of Fed. R. Crim. P.
16(a)(1)(G) because it did not provide the bases and reasons for
Lanata’s conclusions, we are not persuaded that the defendants were
prejudiced by this error. Defendant Brown's counsel questioned
Lanata at the pretrial hearing, and all the defendants had access
to the information elicited. Lanata's responses to these questions
furnished counsel with ample material for meaningful cross-
examination at trial, and counsel's decision not to capitalize on
that material is not fairly traceable to government conduct.
Because the error, if any, was harmless, we cannot reverse on this
basis.
Second, the defendants argue that Lanata's opinion did
not meet the requirements of Fed. R. Evid. 702 for the admission of
expert testimony because Lanata did not have scientific expertise.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
District court evidentiary decisions are reviewed for abuse of
discretion. United States v. Forrest, 429 F.3d 73, 79 (4th Cir.
2005).

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Law enforcement officials are allowed, within the
discretion of district courts, “to testify as experts concerning
the modus operandi of drug dealers in areas concerning activities
which are not something with which most jurors are familiar."
United States v. Sarabia-Martinez, 276 F.3d 447, 452 (8th Cir.
2002); see United States v. Boissoneault, 926 F.2d 230, 232 (2d
Cir. 1991) (same). Allowing expert testimony on gangs who deal
drugs also falls within this discretion. A witness relying solely
or primarily on experience, of course, "must explain how that
experience leads to the conclusion reached, why that experience is
a sufficient basis for the opinion, and how that experience is
reliably applied to the facts," because "the trial court's
gatekeeping function requires more than simply taking the expert's
word for it." Fed. R. Evid. 702 Advisory Committee's Notes to 2000
Amendments (citations omitted).
Here, the district court amply satisfied the gatekeeping
standard. For example, the court asked Lanata at the pretrial
hearing what texts he used in teaching his gang course to new FBI
recruits, and the court clarified to the parties that Lanata's
expertise on gangs generally did not constitute expertise on the
Third Ward Gang in particular. Based on the extent of this
inquiry, we conclude that the district court did not abuse its
discretion in admitting Lanata’s testimony under Rule 702.
Thus, admission of the expert testimony was proper.

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B.
The defendants contend that the district court erred in
permitting the government's rebuttal argument at closing that the
transferred intent concept applied to the Brabson murder. Virginia
law explains this concept as follows: "[I]f an accused shoots at
another intending to kill him, and a third person is killed because
of the act, that same intent follows the bullet and is transferred
to the killing of the third person, even if such death was
accidental or unintentional." Riddick v. Commonwealth, 308 S.E.2d
117, 119 (Va. 1983). The district court itself never instructed
the jury on transferred intent.
As we stated in United States v. Tipton, 90 F.3d 861 (4th
Cir. 1996),
[t]here is no question of the court’s discretionary power
to give post-argument instructions “to remedy omissions
in pre-argument instructions or to add instructions
necessitated by the arguments.” Fed. R. Crim. P. 30
advisory committee's note to 1987 Amendment. But the
rule plainly contemplates that parties will know what the
court will instruct before they make their arguments.
See id.
90 F.3d at 886. In crafting their closing arguments, the
defendants understandably relied on the initial jury instructions,
which omitted the transferred intent theory. (The government's
contention that it was entitled to explain transferred intent to
the jury because the defense closing argument invited this reply is
not persuasive. The invited reply rule covers only prosecutorial
comments "responsive to an inflammatory attack from defense counsel

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or an accusation of perjury." United States v. Ollivierre, 378
F.3d 412, 422 (4th Cir. 2004), vacated on other grounds by
Ollivierre v. United States, 543 U.S. 1112 (2005)).
The defendants argue that only by applying the
transferred intent concept could the jury have concluded Brabson's
murder was intentional, and that this application was not
legitimate because the jury's understanding of the concept came not
from the district court's instructions but from the government's
rebuttal. This claim does not, however, warrant reversal of the
defendant's RICO conspiracy convictions. The government rebuttal
argument simply did not misstate any legal rule or suggest that the
government's burden of proof fell below the standard of beyond a
reasonable doubt. It may well have been wiser for the district
court to exercise its "discretionary power," Tipton, 90 F.3d at
886, to give a post-argument instruction, but we cannot say that
the court's failure to do so here amounted to reversible error.
Fed. R. Crim. P. 52(a).
IV.
Finally, the defendants argue that their sentences
contravened Booker. Under Booker there are two types of sentencing
errors. First, pursuant to a mandatory guidelines regime, "a
sentencing court commits Sixth Amendment error if it enhances a
sentence beyond the maximum authorized by facts found by a jury

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beyond a reasonable doubt or admitted by the defendant." United
States v. Rodriguez, 433 F.3d 411, 414 (4th Cir. 2006). This is
because the Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury . . . ." U.S. Const. amend. VI.
Second, "[a] court commits statutory error if it treats the
Guidelines as mandatory, rather than as advisory." Rodriguez, 433
F.3d at 414. The defendants appear to assert both types of error.
By objecting to their sentences based on Blakely v.
Washington, 542 U.S. 296 (2004), each defendant preserved his
Booker claim. Rodriguez, 433 F.3d at 415. We therefore review for
harmless error. The government bears the burden in harmless
constitutional error review of showing beyond a reasonable doubt
that the error did not affect the defendant's substantial rights.
United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003). An
error that affected the outcome of the proceedings is one that
affected substantial rights. United States v. Stokes, 261 F.3d
496, 499 (4th Cir. 2001). We may disregard an error in sentencing
if we are certain that the error "did not affect the district
court's selection of the sentence imposed." Williams v. United
States, 503 U.S. 193, 203 (1992).
Although the district court sentenced the defendants
under a mandatory guidelines regime, we conclude that this error
was harmless as to defendants Mario Allen and Antoine Allen.

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Because the district court announced that even under an advisory
regime it would impose the same life sentence that it had
ascertained for these defendants by treating the Guidelines as
mandatory, the outcome of the sentencing proceedings was not
changed by the error, so no substantial rights were affected. We
accordingly affirm these life sentences.
The government concedes, however, that it cannot show
that the error as to defendants Batts, Brown, and Langston was
harmless because the alternative sentence (treating the guidelines
as advisory) that the district court announced for each was shorter
than the sentence actually imposed. We accordingly vacate the
sentences as to these defendants and remand for resentencing.
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
V.
For the foregoing reasons we affirm the defendants’
convictions. We vacate the sentences of Batts, Brown, and Langston
and remand for resentencing, but we affirm the sentences of Mario
Allen and Antoine Allen.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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