USA v. Leon Williams, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13352
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON WILLIAMS,
REGINALD JONES, JR.,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00573-SDM-AAS-3
____________________
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2 Opinion of the Court 20-13352
Before ROSENBAUM, GRANT, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Leon Williams and Reginald Jones, Jr. appeal their convic-
tions for conspiracy to possess with intent to distribute cocaine, co-
caine base, and marijuana (in violation of 21 U.S.C. § 846) and for
using, carrying, and discharging a firearm in furtherance of a drug-
trafficking offense (in violation of 18 U.S.C. § 924(c)(1)(A)(iii)). No
reversible error has been shown; we affirm.
Briefly stated, Williams’s and Jones’s convictions stem from
their membership in a gang and from a gang-related shooting in
May 2018. Williams and Jones are members of a gang known as
the “Bird Gang” or the “Wayne Gang.” At the time of the shooting,
the gang had been the subject of a months-long investigation by
police for drug-trafficking activities in and around the Tampa Park
neighborhood in Florida. The gang’s drug activities operated
chiefly out of a rooming house known as the “Blue House.”
The Blue House was owned by a woman named Ms. Rob-
erts. On the day of the shooting, several Bird Gang members con-
fronted a son of Ms. Roberts and accused him of snitching on them
to the police. Later that day, Ms. Roberts and her two adult sons
arrived at the Blue House and attempted to remove the gang mem-
bers from the property. A gunfight erupted during which Williams
and Jones each had a gun and each shot at the Roberts family.
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20-13352 Opinion of the Court 3
During the incident, Williams suffered a gunshot wound and was
driven to the hospital by a fellow gang member.
I.
On appeal, Williams contends that the district court abused
its discretion by admitting into evidence six rap music videos and
song lyrics, which Williams describes as referencing “drugs, guns,
misogyny, and avoiding law enforcement.” Williams says he did
not write, sing, or produce the rap songs and videos. He argues
that -- although the music videos and lyrics had “some relevance” -
- their admission was unfairly prejudicial under Fed. R. Evid. 403.1
We review for abuse-of-discretion a district court’s eviden-
tiary rulings.2
See United States v. Dodds, 347 F.3d 893, 897 (11th
1 Williams also says that the videos constituted improper character evidence
that should have been excluded under Fed. R. Evid. 404(a)(1). This passing
reference -- made without substantive argument or citation to authority -- is
insufficient to raise properly this issue on appeal.
See United States v. Stein,
846 F.3d 1135, 1151 n.15 (11th Cir. 2017) (explaining that a passing reference
to an argument, without reasoned analysis, is insufficient to preserve that ar-
gument on appeal).
2 The government contends that Williams’s Rule 403 argument should be re-
viewed only for plain error. At trial, Williams objected to the introduction of
the rap videos because Williams did not appear in one of the videos and be-
cause it would be “prejudicial . . . to show these videos in which Mr. Williams
does not appear, obviously, with any firearms.” The government says this
objection about Williams’s participation in the videos was inadequate to pre-
serve for appeal Williams’s argument that the content of the rap videos was
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4 Opinion of the Court 20-13352
Cir. 2003). A district court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . un-
fair prejudice.” Fed. R. Evid. 403. We have said, however, that
“Rule 403 is an extraordinary remedy which the district court
should invoke sparingly.”
Dodds, 347 F.3d at 897 (quotations omit-
ted). In considering admissibility under Rule 403, we view “the ev-
idence in a light most favorable to its admission, maximizing its
probative value and minimizing its undue prejudicial impact.”
Id.
We will find abuse of discretion only if the district court’s decision
to admit evidence over a Rule 403 challenge is “unsupportable.”
United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003).
In
United States v. Smith, we concluded that the district
court abused no discretion in permitting the government to intro-
duce a rap video featuring the defendant. 967 F.3d 1196 (11th Cir.
2020). We recognized that the video and lyrics “glorifie[d] vio-
lence, creating the risk that the jury would view [the defendant] as
a violent criminal . . . and convict him for that reason instead of
based on the evidence at trial.”
Id. at 1205. Nevertheless, we de-
termined that the potential for unfair prejudice was outweighed by
the video’s significant probative value for deciding contested is-
sues.
Id. at 1205-06 (noting that the video corroborated the victim’s
testimony that the man who robbed her was a rapper and used a
pistol during the robbery; the video also connected the defendant
unduly prejudicial. Because we conclude that the district court committed no
error -- plain or otherwise -- we need not address the adequacy of Williams’s
trial objection.
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20-13352 Opinion of the Court 5
to other robberies because the jury could compare the appearance
of the pistol shown in the rap video to the pistol used in the surveil-
lance footage from the other robberies).
Here, the district court abused no discretion in allowing the
government to introduce the challenged music videos and song lyr-
ics. Like the video in
Smith, the videos and song lyrics in this case
glorify criminal conduct and might create some potential for unfair
prejudice; but the risk of unfair prejudice was outweighed by the
videos’ probative value.
The music videos -- which contain references to the Bird
Gang and in which Williams and Jones appear alongside other Bird
Gang members -- were highly probative of contested issues at trial:
the existence of the Bird Gang and of Williams’s and Jones’s affilia-
tion with the gang and with their fellow gang members. The music
videos were also probative of the gang’s established territory.
Among other things, the videos included several scenes filmed in
and around the Blue House: the location of the gang’s chief drug
operations and the location of the shooting incident underlying the
charged firearm offense. The videos also contradicted Williams’s
statements to police (1) denying his involvement in the May 2018
shooting, (2) claiming that he was merely a bystander that was shot
while passing the Blue House on his way to the store, and (3) claim-
ing that the man who drove Williams to the hospital (a fellow gang
member who also appeared in the rap videos) was a stranger to
him.
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6 Opinion of the Court 20-13352
Moreover, the district court minimized the potential for un-
fair prejudice by instructing the jurors that Williams and Jones
were on trial only for the two charged offenses and not for conduct
shown in the videos, even if the jurors might find parts of the vid-
eos offensive, profane, or vulgar.
See United States v. Ramirez, 426
F.3d 1344, 1354 (11th Cir. 2005) (noting that the district court’s lim-
iting instruction reduced the risk of undue prejudice).
On appeal, Williams relies chiefly on our decision in
United
States v. Gamory, 635 F.3d 480 (11th Cir. 2011), in which we con-
cluded that the district court abused its discretion in admitting into
evidence a rap video that had been produced at the defendant’s re-
cording studio. The circumstances in
Gamory, however, are ma-
terially different from the circumstances presented in this appeal.
In finding an abuse of discretion in
Gamory, we stressed two facts:
(1) that the defendant did not appear in the video and (2) that the
video was introduced at the end of the government’s case and was
cumulative of other evidence already presented.
See 635 F.3d at
493. Given those circumstances, we said that the probative value
of the video was “minimal at best” and was substantially out-
weighed by the risk of unfair prejudice.
Id.
Neither of the two critical facts involved in
Gamory are pre-
sent in this case. The challenged rap videos featured Williams and
Jones. The videos were also introduced at the beginning of the
government’s case to establish contested facts pertinent to proving
the charged conspiracy and were not cumulative of other evidence
already presented at trial.
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20-13352 Opinion of the Court 7
Williams also says that the videos had an unduly prejudicial
effect because they were played for an “all-white jury” that was
likely to “misunderstand the cultural underpinnings of rap music.”
Williams, however, cites to nothing in the record demonstrating
the racial make-up of the jury and no evidence demonstrating the
jurors’ appreciation of or experience (or lack thereof) with rap mu-
sic.
On this record, we cannot say that the risk of unfair preju-
dice outweighed the probative value of the challenged evidence or
say that the district court’s evidentiary ruling was “unsupportable.”
The district court abused no discretion in allowing the government
to introduce the music videos and song lyrics.
II.
Jones argues that the district court abused its discretion by
admitting into evidence a wiretap recording of a phone call. As
part of the ongoing investigation into the Bird Gang’s drug-traffick-
ing, the police set up a wire on the phone of Sheldon Lillie: a known
drug supplier for the Bird Gang who conducted routinely between
15 to 20 drug transactions per day near the Blue House. In the rec-
orded phone call presented at trial, a person named “Rondo” told
Lillie that “Reggie” wanted to get an “ounce” of the “really good
shit.”
Jones says the recording constituted inadmissible hearsay
under Fed. R. Evid. 801(d)(2)(E). Jones contends that the govern-
ment introduced no extrinsic evidence demonstrating that the
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8 Opinion of the Court 20-13352
phone call related to the charged conspiracy or that the call was
made in furtherance of the charged conspiracy. In particular, Jones
says the government failed to show (1) who “Rondo” was; (2) that
Jones was the “Reggie” mentioned in the phone call; and (3) that
an “ounce” referred to one of the drugs charged in the conspiracy.
A statement offered against a party is not considered hearsay
-- and is thus not subject to exclusion -- if the statement “was made
by the party’s coconspirator during and in furtherance of the con-
spiracy.”
See Fed. R. Evid. 801(d)(2)(E). A statement is admissible
under Rule 801(d)(2)(E) if the government proves “(1) that a con-
spiracy existed; (2) that the conspiracy included the declarant and
the defendant against whom the statement is offered; and (3) that
the statement was made during the course and in furtherance of
the conspiracy.”
United States v. Miles, 290 F.3d 1341, 1351 (11th
Cir. 2002). In examining these factors, “the district court may rely
on information provided by the co-conspirator’s proffered state-
ment as well as independent external evidence.”
Id.
We apply “a liberal standard in determining whether a state-
ment is made in furtherance of a conspiracy.”
Id. “A district court’s
determination that a statement was made in furtherance of a con-
spiracy is a finding of fact subject to a clearly erroneous standard of
review.”
Id.
The district court abused no discretion in admitting the
wiretap recording into evidence. First, the government presented
ample evidence of the existence of a drug conspiracy involving
Jones and other Bird Gang members, including evidence of police
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20-13352 Opinion of the Court 9
surveillance of drug sales near the Blue House, controlled drug
buys in and around the Blue House, references to the Bird Gang on
social media, rap videos featuring Jones and promoting the exist-
ence of the Bird Gang, and witness testimony that Jones fired a gun
during the shooting at the Blue House.
About the identity of the persons referenced in the recorded
call, the government presented witness testimony that “Rondo”
was a nickname for two Bird Gang members and that “Reggie” was
Jones’s nickname. An agent with the Federal Bureau of Investiga-
tion also testified -- based upon her experience and her familiarity
with the drugs that Lillie and the Bird Gang typically sold -- that the
phone call referenced “an ounce of crack cocaine”: one of the drugs
charged in the indictment.
This evidence adequately supports a finding that the rec-
orded statement was a statement made during and in furtherance
of the charged conspiracy. Jones’s assertion that there might be
other people with the nicknames “Rondo” and “Reggie” or an al-
ternative meaning for the word “ounce” are arguments that go to
the weight of the evidence, not to admissibility.
We affirm Jones’s and Williams’s convictions.
AFFIRMED.
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