NOT RECOMMENDED FOR PUBLICATION
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.
SILER, Circuit Judge.
Leonard "Bo" Moore, Sean Donovan, Robert Flowers, and Johnny Jarrell, members of the Highwaymen Motorcycle Club ("HMC"), were charged and convicted of numerous crimes including violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); violations of the Violent Crimes in Aid of Racketeering Act ("VICAR"), 18 U.S.C. § 1959(a)(3); drug conspiracy, 21 U.S.C. §§ 841 and 846; conspiracy to transport stolen motorcycles, 18 U.S.C. §§ 2313 and 371; and illegal use of firearms, 18 U.S.C. § 924(c). They appeal their convictions and resulting sentences, arguing numerous errors by the district court during the trial, pre-sentencing, and sentencing phases. For the following reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings.
HMC is a multi-state organization with its national headquarters located in Detroit, Michigan. In its prime, HMC included approximately ten chapters, mostly in and around Detroit. The Detroit chapter served as national headquarters and its president served as HMC's highest-ranking member. Each chapter, with its own officers and internal leadership structure, operated within the hierarchy of the organization as a whole.
HMC members were required to pay weekly dues and many met their obligations by selling drugs. One of HMC's drug dealers was Bobby Burton who both sold cocaine to and purchased it from other HMC members (the "Burton conspiracy"). Flowers and Donovan supplied Burton with cocaine and also sold cocaine directly to Burton's distributors when his supply was low.
Aref Nagi, another HMC drug dealer, who primarily sold marijuana and cocaine, relied on Jarrell and Moore to distribute his drugs within HMC generally (the "Nagi conspiracy"), and he also distributed drugs to Flowers, who then redistributed them to the HMC West Side chapter. On numerous occasions, the FBI recorded telephone conversations in which Nagi, Jarrell, and Moore discussed the sale and purchase of drugs. At trial, several HMC members testified generally regarding the Nagi conspiracy and specifically that Moore distributed drugs in connection with the conspiracy. One HMC member, Gerald Peters, specifically recalled seeing Moore share marijuana with other members in the HMC clubhouse. Recorded phone calls also revealed discussions of Moore's small marijuana purchases from Jarrell and his delivery of small amounts of cocaine to Nagi.
In addition to trafficking drugs, some HMC members stole motorcycles while attending out-of-town events, transported them back to Detroit for reassembly, and sold them for income. Moore regularly participated in this scheme, including his assisting HMC in stealing motorcycles with a combined estimated value of $463, 000 during a trip to Myrtle Beach, South Carolina. Jarrell and Moore regularly generated income this way and the FBI eventually recovered stolen motorcycles from both of their homes.
When drug debts were left unpaid or when persons were suspected of exposing HMC's involvement in theft, members became violent. On one such occasion, HMC members threatened to kill Alan Kirchoff for failing to pay for a purchase. Kirchoff contacted the police and provided a written statement detailing the events. Later, Moore warned Kirchoff that if he went to the police, Moore couldn't promise that he wouldn't "get hurt and hurt bad." On another occasion, when Moore thought that someone had exposed him to the police for his involvement with stolen motorcycles, he confronted the man at a bar, attacked him with a chair, and beat him up. Perhaps one of HMC's most notable violent performances resulted from an encounter with one of Moore's childhood enemies. Moore and other HMC members confronted Charles Walker outside of a bar and beat him to the ground. As Walker was being beaten, he heard gunshots and quickly ran to his uncle's house a few blocks away. Once inside, Walker received a phone call from Moore who threatened to "come shoot his house up." That night, trucks approached the house and HMC members fired fifteen rounds into the residence. Following the shooting, Moore continued to threaten Walker and other HMC members grew nervous that Moore's erratic behavior would attract the attention of law enforcement.
The FBI's entire investigation of HMC included accounts of these incidents, over 60 executed search warrants, and thousands of wiretaps. In 2009, the United States filed its Second Superseding Indictment against 43 individuals, including Defendants, alleging acts of racketeering, drug possession and trafficking, conspiracy, assault, firearm possession, and obstruction of justice. Defendants proceeded to a jury trial during which several HMC members, who had cooperated with the FBI, testified against them and provided detailed accounts of criminal activity within HMC. For example, Burton testified to purchasing cocaine "a couple ounces" at a time from Donovan on roughly 20 occasions. However, on cross-examination, he noted that his inclusion of Donovan had been an afterthought. HMC member Gerald Peters testified that he heard from another member that Donovan sold cocaine. He also testified that he had never witnessed any of these transactions firsthand. Another HMC member, William Bridges, testified that he and another HMC member traveled to Donovan's home to purchase cocaine and, while he later saw the cocaine that had presumably been purchased, he did not witness the transaction firsthand. HMC member Louis Fitzner also testified regarding numerous acts of thievery and drug trafficking, including his purchase of marijuana from Flowers.
Moore was convicted of violating RICO (Count 1), RICO conspiracy (Count 2), VICAR in relation to the Walker assault (Count 9), conspiracy to transport stolen property (Count 15), conspiracy to distribute controlled substances (Count 19), and use of a gun in relation to his VICAR violation (Count 33). Jarrell and Flowers were both convicted of conspiracy to violate RICO (Count 2) and conspiracy to possess with intent to distribute controlled substances (Count 19). Donovan was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846 (Count 17).
A. Leonard "Bo" Moore.
Moore alleges the following errors on appeal: (1) the district court erred in denying his request for a jury instruction and special verdict form requiring the finding of a drug type and quantity for the conspiracy charge; (2) he was sentenced above the maximum punishment for conspiracy to distribute controlled substances because Viagra is not a controlled substance; (3) insufficiency of the evidence; (4) the district court gave an improper instruction on aiding and abetting; (5) inconsistent and prejudicial testimony was admitted and the district court denied Moore's request for an instruction on the use of such evidence; and (6) the district court miscalculated the Sentencing Guidelines and sentenced Moore for a discharged firearm which was not charged in the indictment or decided by the jury. Moore requests that his convictions on all counts, except for Count 15, be vacated and dismissed or, in the alternative, that they be vacated and remanded for a new trial or resentencing. The United States concedes that this court should grant a limited remand to reduce Moore's sentence on Count 19 to the generic statutory maximum for marijuana under 21 U.S.C. § 841(b)(1)(D). Otherwise, the United States insists that Moore's arguments lack merit.
1. Jury instructions.
We must first determine whether the district court erroneously denied Moore's request for an instruction and special verdict form requiring a finding on drug type and quantity for the charges of drug conspiracy and racketeering. Because Moore did not object to the jury instruction that produced a general verdict at his trial, his claim is reviewed for plain error. See United States v. Olano, 507 U.S. 725, 731 (1993). Under plain error, reversal is proper only if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 732.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Moore argues that because issues which increase the maximum penalty for a crime must be proven beyond a reasonable doubt, the district court should have granted his request for an instruction and special verdict form regarding drug type and quantity and its failure to do so is grounds for reversal of his convictions. Although Apprendi does prescribe that the failure to instruct a jury to determine both the type of drug and the drug quantity involved amounts to plain error, we must still find that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings before reversal is proper. United States v. Cleaves, 299 F.3d 564, 568-69 (6th Cir. 2002).
At trial, the evidence presented regarding the type and quantity of drugs involved was overwhelming. First, although it erroneously listed Viagra as a controlled substance, Count 19 of the indictment clearly indicates which drugs were involved in the conspiracy. Second, the district court determined the specific quantities of drugs involved during the separate, yet related, trial of other HMC members. Evidence of these substances was plentiful and showed that Moore was a high-ranking member of the Nagi conspiracy in which he sold large amounts of marijuana and was also involved in cocaine sales. Third, the evidence presented against Moore focused primarily on marijuana and, to a lesser degree, cocaine. In fact, Moore cites no specific instance during trial when he was linked to trafficking Viagra. It is nearly impossible to accept that a rational factfinder would have convicted Moore for his involvement in a conspiracy involving Viagra. For these reasons, Moore cannot establish that the instructional error warrants reversal of his conviction.
Moore also argues that the singular reference to "the controlled substance" in the jury instructions suggested that the jury only needed to find a conspiracy to distribute one of the controlled substances in the district court's listed substances which included cocaine, marijuana, steroids, Vicodin, Ecstacy, and Viagra. Again, as the evidence presented against him at trial focused overwhelmingly on his involvement with marijuana and, to some extent, cocaine, the instructions did not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and they do not warrant reversal of Moore's conviction.
2. Viagra as a controlled substance.
Because Viagra is not a controlled substance, it may not be the object of a drug conspiracy under 21 U.S.C. §§ 841 and 846. To the extent that the jury instructions stated otherwise, they were incorrect. Moore did not object to the instructions in this regard, so we also review them for plain error. United States v. Castano, 543 F.3d 826, 833 (6th Cir. 2008).
In Hedgpeth v. Pulido, the Supreme Court rejected a rule requiring reversal in cases like the instant one, where the jury was "instructed on multiple theories of guilt, one of which was improper." 555 U.S. 57, 61 (2008). Instead, the Court held that such errors are subject to the same type of harmless error analysis as other instructional errors. Id. (citing Neder v. United States, 527 U.S. 1, 11(1999)). We must therefore determine whether the erroneous instruction amounts to harmless error.
Although the jury instructions incorrectly stated that Viagra is a controlled substance, they also correctly stated that marijuana, cocaine, ecstacy, and Vicodin are controlled substances. Thus, if the jury convicted Moore of conspiring to distribute any of these, his conviction should stand. Under this analysis, Moore's argument fails because, as explained above, he was not implicated by the evidence presented at trial regarding Viagra. He does not identify one instance at trial where evidence connected him to the trafficking of Viagra. Rather, evidence concerning Moore's participation in the ...