Argued: January 24, 2018
Appeals from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad,
District Judge. (3:14-cr-00016-GEC-JCH-1;
Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant Daniel
Lamont Mathis. Paul Graham Beers, GLENN, FELDMANN, DARBY
& GOODLATTE, Roanoke, Virginia, for Appellant Anthony
Christopher R. Kavanaugh, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
W. Shelton, Federal Public Defender, Roanoke, Virginia,
Geremy C. Kamens, Federal Public Defender, Alexandria,
Virginia, Paul G. Gill, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;
Aaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis,
Charlottesville, Virginia; Rhonda E. Quagliana,
Charlottesville, Virginia; Michael T. Hemenway,
Charlottesville, Virginia; Sherwin John Jacobs, Harrisonburg,
Virginia, for Appellants.
A. Mountcastle, Acting United States Attorney, Roanoke,
Virginia, Ronald M. Huber, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit
BARBARA MILANO KEENAN, CIRCUIT JUDGE.
case involves the prosecution of several members of a violent
street gang known as the Double Nine Goon Syndikate (DNGS).
After a multi-week trial, a jury convicted Halisi Uhuru
(Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),
Mersadies Shelton (Mersadies), Shantai Shelton (Shantai), and
Daniel Mathis (Mathis) (collectively, the defendants) of
conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962(d), based on
their activities related to the gang.
Shantai, Mersadies, and Kweli (collectively, the capital
defendants) also were convicted, in relation to the murder of
an off-duty police officer, of violent crimes in aid of
racketeering activity in violation of 18 U.S.C. § 1959
(VICAR) by committing kidnapping and murder under Virginia
law, as well as witness tampering by means of murder in
violation of 18 U.S.C. § 1512(a). The capital defendants
were sentenced to serve terms of life imprisonment. Halisi
and Stokes additionally were convicted of obstruction of
justice in violation of 18 U.S.C. §
appeal, the defendants raise several challenges concerning
their trial and sentences. Upon our review of these
arguments, we vacate in part with respect to
the capital defendants' convictions that are predicated
on commission of kidnapping under Virginia law. Accordingly,
we also remand the capital defendants' convictions for
resentencing. We affirm the balance of the district
Bloods is a nationwide street gang. Groups of Bloods are
organized into "sets" or smaller, individual groups
of Bloods. One of these sets, DNGS, was founded by Halisi,
Stokes, and Kweli in 2013 during their incarceration for
crimes unrelated to the present case.
operates through a hierarchical structure. Halisi served as
"high OG" or "Double OG," DNGS's
leader. Stokes was second in command as "low [OG]."
Kweli also held a leadership role with the rank of
"OG," "Big Homey," or a "Low
020." Another DNGS leader was responsible for operations
conducted by incarcerated DNGS members. These four
individuals composed DNGS's "Roundtable," or
leadership council. Reporting to the council were members
organized by rank, including sergeant, lieutenant, and major.
New DNGS members held the title of "soldier."
gaining membership into the gang, members were given
notebooks to study that included the rules and the history of
the Bloods gang and the DNGS set. Gang members communicated
using certain codes and phrases in an effort to ensure that
their communications remained incomprehensible to law
enforcement authorities and others. Members outwardly
reflected their association with the Bloods and DNGS by
wearing red clothing items, including red bandanas, and by
obtaining tattoos reflecting gang insignia.
financed itself through the proceeds of various illegal
activities undertaken by members, including armed robberies,
home invasions, and burglaries. Members were expected to
"put in work" to advance their rank in the gang,
that is, to commit crimes in order to show their commitment
and loyalty. If a member refused to "put in work,"
that member likely would have been "violated," or
while imprisoned and after their release, Stokes, Kweli, and
Halisi began recruiting new members to the newly formed DNGS
set, including Shantai, Mersadies, and Mathis. As the
gang's membership grew, DNGS members "put in
work" committing a series of crimes from late 2013 into
early 2014. This spree of illegal activities included a
number of armed robberies of convenience stores, home
invasions, burglaries, and other crimes committed in central
night of January 31, 2014, the capital defendants attacked
Kevin Quick (Quick), an off-duty reserve captain with the
Waynesboro, Virginia, Police Department, as he was departing
his vehicle. The four defendants compelled Quick back into
his vehicle at gunpoint, drove him to a nearby ATM, and
forced him to withdraw money from his account. After learning
that Quick was a police officer, and realizing that Quick had
"already seen their face[s]," the capital
defendants decided that "it was too late . . . to let
[Quick] go." They drove Quick to a remote area off the
main roadway, removed Quick from the car, and fired a single
shot into Quick's head, killing him and leaving his body
next day, the capital defendants met with Halisi and Stokes
in Manassas, Virginia. The defendants rented two hotel rooms
to host a "B-House," or a meeting of DNGS members.
Throughout that day, the defendants and other DNGS members
discussed potential drug trafficking plans and engaged with
other drug dealers in transactions involving the distribution
of quantities of drugs, including crack cocaine.
capital defendants left the hotel the next morning and drove
in Quick's vehicle to Front Royal, Virginia. Concerned
that the vehicle could link them to the murder, the capital
defendants bought bleach, rubber gloves, and a jug to hold
gasoline for setting the vehicle on fire. Leaving Kweli
behind, Mathis, Shantai, and Mersadies drove the vehicle to a
friend's house where they cleaned the vehicle with
that day, Mathis and Mersadies committed a robbery. During
the robbery, Mathis fired one shot from his pistol.
Investigators later recovered a bullet and a cartridge from
the scene of this robbery and matched these items through
forensic testing to the weapon used in Quick's murder and
a previous robbery.
and Mersadies quickly left the scene of the robbery in
Quick's vehicle, which malfunctioned shortly thereafter.
They pushed the disabled vehicle to a nearby driveway and
doused the vehicle with additional bleach. After receiving a
call from Mersadies asking for help, Halisi and Stokes
decided that Stokes would drive to meet Mersadies and Mathis,
as well as Shantai, who had reunited with Mersadies and
Mathis. Once Stokes reached the group, Mathis and Shantai
told him that Quick's vehicle needed to be destroyed, but
Stokes stated that they would "find a way to get rid of
it the next day."
and Halisi later obtained a hotel room in which Mersadies,
Mathis, and Shantai could "hide out." As Quick's
disappearance became publicized, Mersadies, Mathis, and
Shantai discussed absconding to Montana to avoid being
arrested. Mersadies informed Kweli of these discussions
through frequent text messages.
Kweli was attempting to have Quick's vehicle destroyed,
law enforcement officers located the abandoned vehicle.
Evidence technicians recovered the following evidence from
the vehicle: Kweli's fingerprint on Quick's
driver's license, which was found in Quick's wallet
inside the vehicle; fingerprints belonging to Mathis,
Shantai, and Mersadies on the vehicle or on items within the
vehicle; Mersadies' DNA on a piece of chewing gum left in
the vehicle's ashtray; and Mathis' DNA on rubber
gloves left in the vehicle.
news media reported that Quick's vehicle had been
recovered, the defendants planned their escape to Montana and
destroyed other evidence related to their crimes. Halisi
ordered Leslie Casterlow (Casterlow), who frequently acted as
a drug courier for DNGS, to "get rid of"
Quick's ATM card. Kweli ordered the other defendants to
delete any incriminating text messages. Also, Shantai and one
other DNGS member disassembled the gun used to kill Quick and
placed the gun components in a pillowcase.
after Quick's vehicle was recovered, Mathis, Shantai, and
Mersadies were arrested at the hotel. After hearing news of
the arrest, Halisi had his girlfriend destroy both his and
Casterlow's phones. Casterlow, who still had possession
of the murder weapon parts, hid those items behind a dumpster
at their hotel.
this time, Stokes was traveling to Washington, D.C. and
Maryland to purchase narcotics with an associate, Jamar Rice
(Rice), who later became a government witness. After
receiving information from an unidentified caller that law
enforcement had raided the hotel to which Stokes was
returning after his trip with Rice, Stokes told Rice that his
"homies" had carjacked and killed a police officer,
and had left his body in the woods.
returned to Virginia to pick up Halisi, Halisi's
girlfriend, and Casterlow. Stokes told Casterlow to retrieve
the murder weapon components from behind the dumpster and to
drive the group to a nearby interstate highway. As Casterlow
drove along the highway, Stokes threw the murder weapon parts
over the wall bordering the road. Thereafter, Halisi, Stokes,
and Casterlow were arrested at the hotel. Law enforcement
officers later recovered the weapon parts with
defendants were charged in a 36-count indictment with
conspiring to participate in a racketeering enterprise that
included the commission of assaults, robberies, burglaries,
kidnapping, carjacking, murder, drug trafficking, and
obstruction of justice. After the jury was sworn during the
first trial, the district court was informed that Kweli had
removed from the courtroom a jury list containing identifying
information about the jury panel members and their families.
The district court thereafter granted the defendants'
motion for a mistrial.
second trial was held in the Roanoke Division of the Western
District of Virginia following a request by some of the
defendants to change venue. The district court also granted
the government's request to empanel an anonymous jury. At
the close of the second trial, a jury found the defendants
guilty on all counts. The district court later sentenced the
capital defendants each to serve a term of life imprisonment.
Halisi and Stokes received sentences of 144 and 160
months' imprisonment, respectively. Several other
sentences were imposed on the various defendants. This appeal
defendants first argue that the district court committed
reversible error in deciding to empanel an anonymous jury.
According to the defendants, there was no evidence supporting
the district court's finding that the defendants had the
capacity to harm or to intimidate the jurors.
review a district court's decision to empanel an
anonymous jury for abuse of discretion. United States v.
Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital
case, a district court may empanel an anonymous jury only
after determining "by a preponderance of the evidence
that providing the [juror] list . . . may jeopardize the life
or safety of any person." Id. at 372 (citing 18
U.S.C. § 3432). We choose to apply this strict standard
to both the capital defendants and the non-capital
defendants, because the test is satisfied for both groups.
district court must base its decision to empanel an anonymous
jury on evidence in the record, rather than solely on the
allegations in the indictment. Id. at 373. Use of an
anonymous jury is appropriate "only in rare
circumstances when two conditions are met: (1) there is
strong reason to conclude that the jury needs protection from
interference or harm, or that the integrity of the jury's
function will be compromised absent anonymity; and (2)
reasonable safeguards have been adopted to minimize the risk
that the rights of the accused will be infringed."
Id. at 372 (citations omitted).
determine whether there are "strong reason[s]" for
empaneling an anonymous jury, we consider five factors:
(1) the defendant's involvement in organized crime, (2)
the defendant's participation in a group with the
capacity to harm jurors, (3) the defendant's past
attempts to interfere with the judicial process, (4) the
potential that, if convicted, the defendant will suffer a
lengthy incarceration and substantial monetary penalties, and
(5) extensive publicity that could enhance the possibility
that jurors' names would become public and expose them to
intimidation or harassment.
Id. at 373 (citing United States v. Ross,
33 F.3d 1507, 1520 (11th Cir. 1994)). These factors are not
exhaustive but are meant to provide guidance in the district
court's fact-specific inquiry. Id.
present case, during the first trial, the district court
raised the question whether use of an anonymous jury would be
appropriate. When the defendants stated their opposition, the
court took no further action. However, as noted above, the
court later received information that Kweli had removed the
jury panel list containing the members' personal
information and had kept the list overnight in the jail.
After the court informed the jury members that the jury list
had been retained by a defendant overnight, some of the
defendants moved for a mistrial, which the court granted.
of these events, the government filed a motion at the
beginning of the second trial requesting an anonymous jury.
The district court granted the government's motion.
the standards outlined in Dinkins and reviewing the
district court's reasoning, we conclude for several
reasons that the district court did not abuse its discretion
in having the case heard by an anonymous jury. First, the
indictment alleged that the defendants were members of a
violent street gang and were involved in a number of violent
criminal offenses, including witness tampering by murder. The
record contained sworn statements by various cooperating
witnesses and DNGS members corroborating these allegations.
This evidence strongly suggested that the defendants had
associates who were not incarcerated and could intimidate or
harm the jurors. See Ross, 33 F.3d at 1520.
FBI special agent Scott Cullins expressed to the court
concerns about juror safety given the gang's
"history of not only retribution, but also preventative
actions." Moreover, Deputy United States Marshal Mark
Haley informed the court that at least two defendants, Kweli
and Halisi, had continued their DNGS recruitment efforts from
jail while awaiting trial. The circumstances leading to the
mistrial thus more than justified the court's concern for
juror safety. And third, if convicted, several of the
defendants faced lengthy incarceration and substantial
penalties that may have induced them to intimidate the jury
in an attempt to influence the outcome of the trial. See
id. at 1520-21.
observe that the district court adopted reasonable safeguards
to minimize the risk that the defendants' constitutional
rights would be infringed by the use of an anonymous jury.
Dinkins, 691 F.3d at 378. The court provided the
venire members with a neutral, non-prejudicial explanation of
its decision that minimized the danger of prejudice to the
defendants. See United States v. Hager, 721 F.3d
167, 188 (4th Cir. 2013). And the court's decision did
not interfere with the defendants' ability to conduct a
thorough voir dire examination. Counsel were given full
access to all juror information, and the defendants were
permitted to review redacted juror questionnaires.
Accordingly, upon our consideration of all the facts and