United States v. Reginald Graham

11th Cir.12/2/2024

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19-10332 Opinion of the Court 1

[PUBLISH]

In the
United States Court of Appeals
For the Eleventh Circuit
____________________

No. 19-10332
____________________

UNITED STATES OF AMERICA,
Plaintiﬀ-Appellee,
versus
REGINALD GRAHAM,
a.k.a. The Real Rico,
a.k.a. To Cool Rico,
a.k.a. G'Rico Longllive Kingsqueezer,
a.k.a. Reggie,
ANTONIO GLASS,
a.k.a. ntn_1bloodgangsta@yahoo.com,
a.k.a. Tone Bleedin Red (Tone Gone Bag'em),
a.k.a. Money Man Future @ S16_Future,
a.k.a. smackvilletone,
a.k.a. Tone Glass,
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2 Opinion of the Court 19-10332

a.k.a. (at)tone.glass,
JERIMAINE BRYANT,
a.k.a. RNS DSBF Capo,
a.k.a. (at) d5bf_mc,
a.k.a. Blood @_McMaine06,
a.k.a. Maine,
MARIO RODRIGUEZ,
a.k.a. "Blood",
a.k.a. "str8_crackk",
a.k.a. "Tuti",
TORIVIS REGINALD INGRAM,
a.k.a. "DSBF Mullet'',
MICHAEL WALKER,
a.k.a. Laid Back ManMan,
a.k.a. Baba,
LEVI BRYANT,
a.k.a. Fish,
CURTIS BRYANT,
a.k.a. Snow Luther King Jr.,
a.k.a. Snow Bryant,
a.k.a. Big Momma,
DANIEL JONES,
a.k.a. Dodo,
SAMUEL HAYES,
a.k.a. DSBF Jit,
a.k.a. Nba Flame,
a.k.a. Looney Hoe,
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19-10332 Opinion of the Court 3

a.k.a. Sammy,

Defendants-Appellants.

____________________

Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cr-20307-JEM-7
____________________

Before WILSON, JORDAN, and BRASHER, Circuit Judges.
JORDAN, Circuit Judge:
The Wire is said to be one of best television shows of all time.
That is in large part because of its realistic depiction of gang vio-
lence in an American city. See Emma Jones, How the Wire Became
the Greatest TV Show Ever Made, BBC (Apr. 13, 2018),
https://perma.cc/2V3Q-GYVK; Rob Sheffield, 100 Greatest TV
Shows of All Time, Rolling Stone (Sept. 21, 2016),
https://perma.cc/D862-BGDU. This case is about what happens
when that fiction becomes reality.
Reginald Graham, Antonio Glass, Jerimaine Bryant, Mario
Rodriguez, Torivis Reginald Ingram, Michael Walker, Levi Bryant,
Curtis Bryant, Daniel Jones, and Samuel Hayes appeal their convic-
tions and sentences for committing numerous crimes in connec-
tion with their membership in a Miami-based gang—the Dub
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4 Opinion of the Court 19-10332

Street Blood Family or DSBF. For nearly two decades, the gang
operated in and tyrannized a community through its drug opera-
tions. When narcotics did not prove fruitful enough, its members
turned to armed robberies. And when members stepped out of line
or rivals encroached on the gang’s territory, its members did not
hesitate to kill. 1
The FBI, the Bureau of Alcohol, Tobacco, Firearms, and Ex-
plosives, the City of Miami Police Department, and the Miami-
Dade County Police Department invested considerable resources
to investigate the DSBF and take it down. Their collective work
culminated in a broad indictment charging the defendants with nu-
merous offenses. Count 1 charged Mr. Graham, Mr. Glass,
Jerimaine Bryant, Mr. Rodriguez, Mr. Ingram, Mr. Walker, Levi
Bryant, Curtis Bryant, Mr. Jones, and Mr. Hayes with a racketeer-
ing conspiracy in violation of 18 U.S.C. § 1962(d). Count 2 charged
the same defendants—along with Latitia Houser, Donzell Jones,
and Vencess Toby—with a narcotics conspiracy (to possess 280
grams or more of crack cocaine and marijuana with the intent to
distribute) in violation of 21 U.S.C. § 846. The indictment also
charged the defendants with numerous substantive offenses. 2

1 Because three of the defendants share the last name of Bryant, we use their

full names or first names where necessary.
2 Ms. Houser, Donzell Jones, and Mr. Toby were not defendants in the trial

we review in this appeal.
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19-10332 Opinion of the Court 5

After a 38-day trial, a jury found the defendants guilty of
many of the charges. A summary of the convictions and the sen-
tences imposed follows:

Defendant Counts Sentence of
Imprisonment
Reginald Graham 1 – Racketeering Conspir- 228 months
acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy
(21 U.S.C. § 846)

11 – Attempted Possession
of Narcotics with the In-
tent to Distribute (21
U.S.C. § 846)

Antonio Glass 1 – Racketeering Conspir- Life
acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy
(21 U.S.C. § 846)

19 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C.
§ 841(a)(1))
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6 Opinion of the Court 19-10332

Jerimaine Bryant 1 – Racketeering Conspir- Life
acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy
(21 U.S.C. § 846)

5 – Possession of Narcotics
with the Intent to Distrib-
ute (21 U.S.C § 841)

12 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C § 841)

21 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C § 841)

Mario Rodriguez 2 – Narcotics Conspiracy 260 months
(21 U.S.C. § 846)

10 – Possession of a Fire-
arm in Furtherance of
Drug Trafficking (18 U.S.C.
§ 924(c))

22 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C.
§ 841(a)(1))
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19-10332 Opinion of the Court 7

Torivis Reginald In- 2 – Narcotics Conspiracy 168 months
graham (21 U.S.C. § 846)

22 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C.
§ 841(a)(1))

Michael Walker 1 – Racketeering Conspir- 235 months
acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy
(21 U.S.C. § 846)

20 – Possession of Narcot-
ics with the Intent to Dis-
tribute (21 U.S.C § 841)

Levi Bryant 2 – Narcotics Conspiracy 192 months
(21 U.S.C. § 846)

4 – Possession of Narcotics
with the Intent to Distrib-
ute (21 U.S.C. § 841(a)(1))
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8 Opinion of the Court 19-10332

Curtis Bryant 1 – Racketeering Conspir- Life
acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy
(21 U.S.C. § 846)

11 – Attempted Possession
of Narcotics with the In-
tent to Distribute (21
U.S.C. § 846)

Daniel Jones 2 – Narcotics Conspiracy 235 months
(21 U.S.C. § 846)

Samuel Hayes 1 – Racketeering Conspir- 334 months
acy (18 U.S.C. § 1962(d))

15 – Hobbs Act Robbery
(18 U.S.C. § 1951(a))

17 – Hobbs Act Robbery
(18 U.S.C. § 1951(a))

18 – Brandishing a Firearm
in Furtherance of a Crime
of Violence (18 U.S.C.
§ 924(c)(1)(A)(ii))
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19-10332 Opinion of the Court 9

The defendants now appeal, raising a host of issues. We va-
cate the Count 1 RICO conspiracy convictions due to the district
court’s erroneous and wholesale exclusion of the defendants’ gang
expert and the government’s complete failure to brief harmless er-
ror, an issue on which it bears the burden. We also vacate the sen-
tence of Mr. Jones due to the improper application of a use-of-vio-
lence enhancement. In all other respects, we affirm.3
I. THE EVIDENCE AT TRIAL
The government’s case was largely based on the testimony
of Special Agent Christopher Mayo of the FBI; Sergeant Surami
Kelly of the City of Miami Police Department; Special Agent Ros-
niel Perez of the ATF; Larry Grimes and Vandel Coakley, former
members of the DSBF; Ms. Houser, a drug supplier for the DSBF
and the ex-girlfriend of one of its members; and Donzell Jones, a
local drug dealer who was close to the DSBF. Viewing the evi-
dence in the light most favorable to the government, see United
States v. Scott, 61 F.4th 855, 863 (11th Cir. 2023), this is generally the
story they told.
As early as the year 2000, law enforcement authorities be-
came aware of a group operating out of the South Gwen Cherry
housing complex in the Allapattah neighborhood of Miami, Flor-
ida. That group called itself the DSBF and its members frequently
identified themselves by other monikers such as RNS (Real N****
Shit) and GMT (Get Money Team). Founded by Isaac “Ike”

3 As to any issues not discussed, we summarily affirm.
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10 Opinion of the Court 19-10332

Thompson, the DSBF had no formal affiliation with the infamous
Bloods street gang of Los Angeles but its members considered
themselves to be “[E]ast coast” Bloods.4
The law enforcement investigation into the DSBF began in
earnest in the early 2010s. The DSBF had a chain of command. At
the top of the chain was a chief executive of sorts, a position held
by men like Mr. Thompson (and then Mr. Glass around 2012). Be-
low him were “Top Smackers” or “TopShottas,” high-ranking dep-
uties who were in charge of the daily drug operations. Then came
the “L.T.s.”—lieutenants who were second in command during
drug transactions and typically collected the money and held the
drugs and firearms. Although this chain of command became
more fluid over time, there was always a designated leader.
The DSBF had an initiation ritual, rules, handshakes, and
hand signs. The initiation involved a 31-second display of loyalty,
usually consisting of fighting a member or committing an act of
violence against outsiders. The 31-second initiation was co-opted
from the “Blood code.” Once initiated, members had to follow at
least two rules: no stealing from the DSBF and no talking to the
police. If a rule was broken, an enforcer, like Mr. Rodriguez, would
oversee a 31-second punishment.
Only members could perform the DSBF handshake; outsid-
ers who tried using it “could get beat up.” The DSBF’s hand signs

4 Later in the opinion, we discuss in more detail the government’s evidence

about the DSBF’s association or affiliation with the Bloods.
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19-10332 Opinion of the Court 11

were intended to symbolize a capital B, a lowercase B, and “East
side,” for “[E]ast coast” Bloods.
The DSBF was not shy about demonstrating its presence to
the outside world. The area around the South Gwen Cherry com-
plex had graffiti tags of the DSBF. And the gang’s members tat-
tooed DSBF on their bodies. As self-proclaimed “[E]ast coast”
Bloods, the DSBF’s members preferred to wear red.
Members frequently boasted of the DSBF on Facebook and
disparaged a rival gang, the “13th Avenue Gang.” In a message that
proved prescient, a friend of the DSBF warned Mr. Graham:
“[D]on’t put that DGMT shit on you all [Facebook] status. Feds
watching that shit yeah.”
Through 2017, the DSBF primarily sold crack cocaine and
marijuana, but its members regularly worked together to commit
other crimes such as armed robberies. The group’s members were
no strangers to violence. Members touted firearms and used
them—killing rival gang members and “outsiders” such as Pooh
Johnson, Richard Hallman, and Terrell Washington. They some-
times even shot their own members for violating the DSBF’s rules.
The DSBF’s criminal activities fell under three broad catego-
ries: (1) drugs; (2) armed robberies; and (3) homicides. We briefly
summarize each of them.
Drugs. The DSBF controlled the sale of drugs—primarily
crack cocaine and marijuana—in the South Gwen Cherry complex.
Narcotics were the group’s financial engine, and many of the deci-
sions were driven by this reality. Only DSBF members could sell
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12 Opinion of the Court 19-10332

at South Gwen Cherry, and they did so “[e]very day” in shifts. Out-
siders like Donzell Jones had to obtain permission to sell drugs
there. Ms. Houser testified that starting in 2015 she began supply-
ing the DSBF—through Mr. Glass, Quincy Bryant, Mr. Graham,
and Mr. Walker—with the drugs the gang sold at South Gwen
Cherry. She also said that Jerimaine Bryant supplied drugs to the
DSBF.
Mr. Coakley testified that when it came to selling drugs,
“everyone had a position.” At the bottom of the rung were “watch
outs,” members who would alert the group if they saw rivals or
police in the area. Members could graduate from a “watch out” to
a “bomb man,” a position which required them to hold the drugs.
They also had a “gunman,” which, as one would expect, was a
member who had a firearm to protect the group.
Mr. Grimes described how a typical narcotics transaction
would be conducted. The DSBF would have at least a watch out
and a bomb man. The drugs would be in a nondescript bag (“the
bomb”) like a trash bag or a chip bag. When a customer requested
drugs, the bomb man would take the cash and walk over to set “the
bomb.” He would then go back to the customer to deliver the
drugs. Sgt. Kelly similarly described the drug transactions from her
team’s controlled purchases.
During Mr. Grimes’ time with the DSBF, sometime in late
2010, Mr. Glass was the L.T. who ran the daily drug operations.
Mr. Glass would collect the money, assign shifts, and provide the
drugs and guns.
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19-10332 Opinion of the Court 13

In addition, Mr. Grimes gave the jury insight into the fi-
nances of the DSBF’s narcotics operations. A “rock” of crack co-
caine sold for $5, and his commission was 20%. On a good day,
Mr. Grimes would pocket $500, and on a bad day $250. He esti-
mated that, on average, the DSBF sold 21 grams of crack cocaine
daily. Like all markets, however, the drug sales would sometimes
be up and other times be down. Starting in 2016, sales were down.
The DSBF’s drug operation dried up significantly; supply was un-
reliable, and the buyers stopped coming. So, like any other market
actor, the DSBF decided to diversify its operations to tap other in-
come streams. That meant turning to robberies.
Armed Robberies. The jury learned of the DSBF’s armed
robberies mostly through Mr. Grimes, who in response to defense
counsel’s questioning stated, “I’m a robber.” Mr. Grimes testified
that he was arrested for four robberies, but had committed over 25
robberies; at some point he stopped counting. Mr. Grimes’ first
robbery with the gang dated to his initiation into the DSBF in 2010,
when he and Mr. Glass (and others who are not defendants here)
attempted to rob a drug dealer. During that attempted robbery,
Mr. Grimes fired a gun provided to him by Mr. Rodriguez to show
that they “ain’t to be played with and we going to shoot.”
Following his first robbery in 2010, Mr. Grimes consistently
committed armed robberies with the DSBF (“[m]ainly every day”).
He identified Mr. Hayes as one of the gang members who fre-
quently joined him in those endeavors. The firearms for the rob-
beries were provided by Messrs. Rodriguez and Glass.
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14 Opinion of the Court 19-10332

Mr. Coakley testified to his participation in four armed rob-
beries in the fall of 2016 with other DSBF members—Mr. Hayes,
Mr. Glass, Mr. Graham, and Curtis Bryant. The government intro-
duced security footage from each of the victimized establishments
and Mr. Coakley walked the jury through each robbery.
On September 17, 2016, Mr. Coakley, Mr. Glass, Mr. Gra-
ham, and Curtis Bryant robbed a Metro PCS store near South
Gwen Cherry at gun point. Less than a week later, Messrs. Coakley
and Hayes robbed the same store. In October of 2016, Messrs.
Coakley, Hayes, and Glass robbed a nearby convenience store.
That same month, Messrs. Coakley and Hayes again robbed the
Metro PCS store. In all four robberies, the members held up the
store clerk at gun point. And sometimes they held customers hos-
tage. After each robbery, the members involved would split the
proceeds evenly.
Homicides. The jury heard testimony about the DSBF’s
killing of Mr. Johnson, Mr. Hallman, and Mr. Washington. All
three men were murdered for crossing the gang. Mr. Glass killed
Mr. Johnson in 2010 for robbing from the DSBF; Mr. Grimes, Mr.
Coakley, and Ms. Houser all testified about that murder. Curtis
Bryant killed Mr. Hallman in 2015 after he shot a younger DSBF
member; Mr. Coakley and Ms. Houser testified about that murder.
Several DSBF members, including Mr. Glass and Curtis Bryant,
killed Mr. Washington in 2016; Mr. Coakley, Ms. Houser, and De-
tective Roderick Passmore testified about that murder.
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19-10332 Opinion of the Court 15

The DSBF’s violence did not stop with outsiders. For exam-
ple, Mr. Glass shot Mr. Grimes in a drive-by shooting for violating
the DSBF’s rules; he had robbed a customer and that was bad for
business.
The narcotics, the robberies, and the murders all shared one
thing in common—firearms. Guns were used to sell drugs, to rob,
and to kill. The DSBF’s members frequently posted pictures on
social media with their guns—sometimes pointing them directly at
the camera. Mr. Coakley testified that he had seen Mr. Rodriguez
and Mr. Glass supply weapons, including handguns and semi-auto-
matic rifles, to DSBF members at South Gwen Cherry.
II. PRE-TRIAL ISSUES
The defendants raise various challenges to the district
court’s pre-trial orders, voir dire findings, evidentiary rulings, jury
instructions, and sentencing determinations. A number of defend-
ants also take issue with the sufficiency of the evidence against
them on some of the charges. We address the issues presented in
rough chronological order.
A. COUNT 2 OF THE INDICTMENT
We begin with Levi Bryant. For the first time on appeal, he
challenges the sufficiency of Count 2 of the indictment. 5

5 Mr. Ingram, Mr. Walker, and Jerimaine Bryant adopted Levi Bryant’s chal-

lenge to Count 2. See Fed. R. App. P. 28(i).
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16 Opinion of the Court 19-10332

Where a defendant did not raise an issue below, we conduct
plain error review. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731–37 (1993). Plain error requires a defendant to
show (1) that there was an error, (2) that the error is plain, and (3)
that the error affected his substantial rights. See United States v.
Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015). If these three condi-
tions are satisfied, we have discretion to correct the error. We
“should correct a forfeited plain error that affects substantial rights
if the error seriously affects the fairness, integrity or public reputa-
tion of judicial proceedings.” Rosales-Mireles v. United States, 585
U.S. 129, 137 (2018) (citation and internal quotation marks omit-
ted).
As relevant here, Count 2 of the indictment charged a num-
ber of defendants, including Levi Bryant, with conspiracy to pos-
sess 280 grams or more of crack cocaine (and marijuana) with the
intent to distribute. See 21 U.S.C. § 846. Numerous other counts
individually or jointly charged different defendants with substan-
tive narcotics offenses, such as possession of a controlled substance
with the intent to distribute. See 21 U.S.C. § 841(a)(1).
According to Levi Bryant, the § 846 conspiracy charged in
Count 2 required a “linked” substantive § 841 violation. In his
view, because Count 2 in part alleged a conspiracy involving in part
280 grams or more of crack cocaine, the government was required
to allege that at least one of the substantive § 841 violations in-
volved 280 grams or more of crack cocaine. But a substantive of-
fense and a conspiracy to commit that offense are separate and
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19-10332 Opinion of the Court 17

distinct crimes. See Callanan v. United States, 364 U.S. 587, 593
(1961) (citing Pinkerton v. United States, 328 U.S. 640, 643 (1946)).
They may therefore be separately and independently charged, and
the government is not required to “link” them in the charging in-
strument. See United States v. Shabani, 513 U.S. 10, 11 (1994) (hold-
ing that § 846 does not require proof that “a coconspirator commit-
ted an overt act in furtherance of the conspiracy”).
As we explained decades ago, a conspiracy “is not confined
to the substantive offense which is the immediate aim of the enter-
prise” because “the essence of the crime of conspiracy . . . is an
agreement to commit an unlawful act.” United States v. Cowart, 595
F.2d 1023, 1030 (5th Cir. 1979). As a result, Levi Bryant cannot es-
tablish a defect in the indictment. There was no error, plain or oth-
erwise, in the drafting of Count 2.
B. THE MOTIONS TO SUPPRESS
The district court denied the motions to suppress filed by
Messrs. Jones, Ingram, and Rodriguez. They challenge those deni-
als on appeal.
We review the denial of a motion to suppress under a mixed
standard. We review factual findings for clear error and the appli-
cation of the law to those facts de novo. See United States v. Ford, 784
F.3d 1386, 1391 (11th Cir. 2015).
1. MR. JONES
We begin with Mr. Jones. He sought to suppress his cell
phone and all evidence associated with it on the grounds that (1)
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18 Opinion of the Court 19-10332

he was illegally detained during a traffic stop and (2) the phone was
seized without probable cause.
A magistrate judge held an evidentiary hearing at which Sgt.
Kelly and Agent Perez testified. Following that hearing, the mag-
istrate judge recommended that Mr. Jones’ motion be denied be-
cause the officers’ search was incident to a lawful arrest. The dis-
trict court then adopted the magistrate judge’s recommendation.
We find no error in the district court’s factual findings or legal con-
clusions and affirm the denial of Mr. Jones’ motion to suppress.
The Fourth Amendment protects individuals from unrea-
sonable searches and seizures. See U.S. Const. Amend. IV. “[T]he
ultimate touchstone of the Fourth Amendment is ‘reasonable-
ness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “Where a
search is undertaken by law enforcement officials to discover evi-
dence of criminal wrongdoing, . . . reasonableness generally re-
quires the obtaining of a judicial warrant.” Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 653 (1995). “In the absence of a warrant, a
search is reasonable only if it falls within a specific exception to the
warrant requirement.” Riley v. California, 573 U.S. 373, 382 (2014).
One such exception—which the district court held applied here—
is when a warrantless search occurs incident to a lawful arrest. See
id.
We must first determine whether there was a lawful arrest.
Mr. Jones contends that he was not under arrest, and that even if
he was, no probable cause supported the arrest.
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19-10332 Opinion of the Court 19

The detention here “was in important respects indistinguish-
able from a traditional arrest.” See Dunaway v. New York, 442 U.S.
200, 212 (1979). The record shows that Mr. Jones was pulled over
and asked to step out of his car, but was not “questioned briefly
where he was found.” See id. Instead, he was put in handcuffs,
placed in the back of a police car, transported to the police station,
and taken to an interrogation room. Sgt. Kelly’s and Agent Perez’s
subjective beliefs that Mr. Jones was not under arrest or that he
went to the police station “voluntarily”—while handcuffed in the
back of a police car—do not control. See id. See also United States v.
Diaz-Lizaraza, 981 F.2d 1216, 1221–22 (11th Cir. 1993) (“The char-
acter of a seizure as arrest or Terry stop depends on the nature and
degree of intrusion, not on whether the officer pronounces the de-
tainee ‘under arrest.’”). Mr. Jones was practically and legally under
arrest when he was handcuffed and taken to the police station in a
police car.
Having determined that Mr. Jones was under arrest, we now
ask whether his arrest was supported by probable cause. Probable
cause exists when “the facts and circumstances within the officer’s
knowledge, of which he or she has reasonably trustworthy infor-
mation, would cause a prudent person to believe, under the cir-
cumstances shown, that the suspect has committed, is committing,
or is about to commit an offense.” Rankin v. Evans, 133 F.3d 1425,
1435 (11th Cir. 1998) (citation omitted). See also District of Columbia
v. Wesby, 583 U.S. 48, 57 (2018) (explaining that probable cause “re-
quires only a probability or substantial chance of criminal activity,
not an actual showing of such activity”) (citation omitted).
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20 Opinion of the Court 19-10332

The magistrate judge—whose report the district court
adopted—identified two bases which established probable cause
for the arrest. The first was that Mr. Jones was driving an unregis-
tered vehicle in violation of Fla. Stat. § 320.02, a second-degree mis-
demeanor punishable by up to 60 days of imprisonment. See State
v. Brooks, 295 So. 3d 348, 350, 352–53 (Fla. 2d DCA 2020) (reversing
the trial court’s suppression of a firearm because the officers seized
it incident to a lawful arrest for driving an unregistered vehicle);
Fla. Stat. § 320.57(1) (making a violation of § 320.02 a second-de-
gree misdemeanor and referencing statutes setting the available
punishments). Second, Mr. Jones was involved in the RICO and
narcotics conspiracies. We agree with the first basis and therefore
do not address the second.
Mr. Jones does not dispute that he could have been arrested
for driving an unregistered vehicle. Indeed, he does not challenge
the validity of the initial stop for that infraction. He instead argues
that he was not arrested for doing so because he was given two
traffic citations. But, as we have explained, Mr. Jones was in fact
under arrest for purposes of the Fourth Amendment when he was
handcuffed, placed in the back of a police car, and taken to the po-
lice station. Nor does it matter under the Fourth Amendment that
the officers could have issued traffic citations rather than execute
an arrest. See Virginia v. Moore, 553 U.S. 164, 176 (2008) (“We con-
clude that warrantless arrests for crimes committed in the presence
of an arresting officer are reasonable under the Constitution, and
that while States are free to regulate such arrests however they de-
sire, state restrictions do not alter the Fourth Amendment’s
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19-10332 Opinion of the Court 21

protections.”). Accordingly, the officers had probable cause to ar-
rest Mr. Jones for driving an unregistered vehicle in violation of
Florida law.
Having confirmed the existence of an arrest supported by
probable cause, we turn to whether the search of Mr. Jones was
incident to a lawful arrest. Simply put, “a police officer who makes
a lawful arrest may conduct a warrantless search of the arrestee’s
person[.]” Davis v. United States, 564 U.S. 229, 232 (2011). This ex-
ception exists in part to prevent the concealment or destruction of
evidence. See United States v. Robinson, 414 U.S. 218, 226 (1973).
And the Supreme Court has permitted the seizure of a cell phone
for that purpose while a warrant is obtained for a search of its con-
tents. See Riley, 573 U.S. at 388.
An officer retrieved Mr. Jones’ cell phone during a pat down
following his detention and arrest. According to Agent Perez, cell
phones hold evidentiary value as the mediums of narcotics trans-
actions because they contain communications with customers and
suppliers and, as relevant here, photographs that are used for social
media posts. Mr. Jones’ cell phone therefore had independent evi-
dentiary value and was properly seized to prevent the concealment
or destruction of evidence it may have contained. See United States
v. Bragg, 44 F.4th 1067, 1071 (8th Cir. 2022) (“Bragg’s iPhone was
seized incident to his lawful arrest. . . . Because a seizure is gener-
ally less intrusive than a search, the Supreme Court ‘has frequently
approved warrantless seizures of property, on the basis of probable
cause, for the time necessary to secure a warrant, where a
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22 Opinion of the Court 19-10332

warrantless search . . . would have been held impermissible.’”)
(quoting Segura v. United States, 468 U.S. 796, 806 (1984)); Andersen
v. DelCore, 79 F.4th 1153, 1166 (10th Cir. 2023) (“So long as an of-
ficer has probable cause that a cell phone contains evidence of a
crime, he may seize the phone without a warrant if a reasonable
officer would conclude that the seizure is necessary to prevent the
destruction of evidence.”). Consequently, the district court did not
err in denying Mr. Jones’ motion to suppress the cellphone and the
evidence associated with it. 6
2. MESSRS. INGRAM AND RODRIGUEZ
We move on to Messrs. Ingram and Rodriguez. They
sought to suppress (1) evidence seized during an initial warrantless
search of a carport connected to their residence and (2) additional
evidence subsequently seized from their residence pursuant to a
search warrant, as fruits of the poisonous tree of the initial warrant-
less search. The district court denied the motions to suppress, rul-
ing that the initial warrantless search and seizure did not violate the
Fourth Amendment and so there was no basis to suppress the fruits
of that initial search.
a. THE CARPORT

6 Mr. Jones also challenges Agent Perez’s delay in obtaining a warrant to search

the phone. Mr. Jones raised this argument below, but the magistrate judge
did not address it in his report. Mr. Jones, in turn, did not object to the mag-
istrate judge’s failure to address this argument and therefore waived the right
to challenge this aspect of the denial of his motion to suppress on appeal. See
11th Cir. R. 3-1.
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19-10332 Opinion of the Court 23

The home and its surrounding curtilage are constitutionally
protected areas, and warrantless searches of them are “presump-
tively” unreasonable. See Brigham City, 547 U.S. at 403. But officers
may “ent[er] upon private land to knock on a citizen’s door for le-
gitimate police purposes unconnected with a search of the prem-
ises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).
This so-called knock-and-talk exception is limited in two respects.
First, when an officer’s behavior “objectively reveals a purpose to
conduct a search,” the exception ceases. See United States v. Walker,
799 F.3d 1361, 1363 (11th Cir. 2015). Second, an officer is “geo-
graphically limited to the front door or a ‘minor departure’ from
it.” Id.
Mr. Ingram and Mr. Rodriguez contend that Miami-Dade
Police Detectives Terrence Andre White and Charles Woods ex-
ceeded the scope of the knock-and-talk exception when they ap-
proached the carport. We disagree. 7
The behavior here did not objectively reveal a purpose to
search. Detectives White and Woods went to the residence upon
belief that Mr. Rodriguez, who was wanted for questioning in con-
nection with a homicide, was present there. Upon arriving at the
residence, the Detectives saw Messrs. Ingram and Rodriguez sitting
under the carport. So the Detectives walked through the open gate

7 The government concedes on appeal that the carport was part of the curti-

lage.
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24 Opinion of the Court 19-10332

to talk to them. This conduct fell squarely within the knock-and-
talk exception.
Moreover, approaching the carport did not exceed the geo-
graphic limit of the knock-and-talk exception. As in Walker, the
carport here was open-aired and attached to the side of the home.
See Walker, 799 F.3d at 1363–64 (carport was a “minor departure”
from the front door because it “was located right next to the
house”). And in seeing the two men under the carport, the Detec-
tives could forego the formality of knocking on the front door. See
Florida v. Jardines, 569 U.S. 1, 8 (2013) (recognizing that the knock-
and-talk exception allows an officer to do “no more than any pri-
vate citizen might do”). Accordingly, the Detectives acted within
the scope of the exception.
Additionally, because the Detectives’ presence at the carport
was lawful, the arguments of Messrs. Ingram and Rodriguez con-
cerning evidence seized from the carport fail. That evidence con-
sisted of narcotics and a firearm that Mr. Ingram grabbed from a
table and attempted to conceal. Because those items were in plain
view, they were subject to seizure without a warrant. See United
States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (“The ‘plain
view’ doctrine permits a warrantless seizure where (1) an officer is
lawfully located in the place from which the seized object could be
plainly viewed and must have a lawful right of access to the object
itself; and (2) the incriminating character of the item is immediately
apparent.”).
b. THE STATEMENTS
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19-10332 Opinion of the Court 25

When Mr. Rodriguez saw Detective Woods approaching
the carport, he attempted to flee and was apprehended by Detec-
tive White. He challenges the voluntary statements he made after
his arrest as obtained in violation of the Fourth Amendment, and
argues that his subsequent waivers of his Miranda rights could not
cure any such violation. See generally Miranda v. Arizona, 384 U.S.
436 (1966). 8
Mr. Rodriguez is correct that Miranda warnings cannot
“alone and per se” break “the causal connection between [any] ille-
gality and” his voluntary statements. See Brown v. Illinois, 422 U.S.
590, 603 (1975). But, as noted above, there was no Fourth Amend-
ment violation by Detectives White and Woods. As a result, Mr.
Rodriguez’s statements were not subject to exclusion as fruits of
the poisonous tree. See United States v. Terzado-Madruga, 897 F.2d
1099, 1113 (11th Cir. 1990).
In sum, we find no error in the district court’s denial of the
motions to suppress filed by Messrs. Ingram and Rodriguez.
C. THE MOTION TO SEVER
Jerimaine Bryant contends that the district court erred in
denying his motion to sever. We disagree. 9

8 Mr. Rodriguez does not independently challenge the sufficiency of the Mi-

randa warnings or his waiver of his rights.
9 Mr. Graham, Mr. Walker, Mr. Glass, Mr. Jones, and Levi Bryant adopted

Jerimaine Bryant’s severance argument. Such an adoption, however, is inap-
propriate. Severance is a fact-specific and defendant-specific inquiry that re-
quires independent briefing. See United States v. Hankton, 51 F.4th 578, 609 n.17
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26 Opinion of the Court 19-10332

We review a district court’s denial of a motion to sever for
abuse of discretion. See United States v. Lopez, 649 F.3d 1222, 1235–
36 (11th Cir. 2011). “The burden of establishing an abuse of discre-
tion” on the issue of severance “rests with [the defendant].” United
States v. De La Torre, 639 F.2d 245, 249 (5th Cir. 1981).
If joinder appears prejudicial, a defendant can move for a
severance. See Fed. R. Crim. P. 14(a). The Supreme Court has ex-
plained that “a district court should grant a severance under Rule
14 only 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 judgment about guilt or innocence.” Zafiro
v. United States, 506 U.S. 534, 539 (1993). Considering that guid-
ance, we have set out a general rule that “defendants who are in-
dicted together are usually tried together.” Lopez, 649 F.3d at 1234
(citing United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007)).
The rule applies with some force in conspiracy cases: defendants in
such cases “should be” tried together. See id. (citation omitted).
A defendant seeking severance “must discharge the heavy
burden of demonstrating compelling prejudice from the joinder.”
Browne, 505 F.3d at 1268 (citation and internal quotation marks
omitted). To prove compelling prejudice, a defendant must show
(1) that actual prejudice would result from a joint trial and (2) that

(5th Cir. 2022) (“‘[U]nder Rule 28(i), severance issues are fact-specific’ and thus
cannot be adopted by co-defendants.”) (citation omitted). In any event, we
reject Jerimaine Bryant’s severance argument.
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19-10332 Opinion of the Court 27

severance is the only proper remedy to avoid that prejudice. See
Lopez, 649 F.3d at 1234.
The indictment charged Jerimaine Bryant with both conspir-
acies—the Count 1 RICO conspiracy and the Count 2 narcotics
conspiracy. There was a strong presumption, therefore, in favor of
jointly trying him with the other defendants who were similarly
charged. See id. See also United States v. Smith, 918 F.2d 1501, 1510
(11th Cir. 1990) (“A defendant does not suffer compelling preju-
dice, sufficient to mandate a severance, simply because much of the
evidence at trial is applicable only to co-defendants.”).
Jerimaine Bryant argues that because his conduct was lim-
ited to narcotics possession and distribution, severance was war-
ranted due to prejudicial “spillover” evidence concerning homi-
cides. To remedy that issue, however, the district court instructed
the jury to consider the case of each defendant separately and indi-
vidually. We have explained that such an instruction “significantly
alleviat[es]” the “possible prejudicial effects” of joinder. See Smith,
918 F.2d at 1510. Here that instruction apparently did its job; the
jury acquitted some defendants, such as Levi Bryant and Mr. Jones,
of several charges. By Jerimaine Bryant’s own admission, a jury
instruction like the one given plus a discriminating verdict signals
that the jury followed those instructions and was able to sift
through the evidence without undue influence from any poten-
tially inflammatory spillover. See United States v. Schlei, 122 F.3d
944, 984 (11th Cir. 1997).
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28 Opinion of the Court 19-10332

Moreover, the evidence Jerimaine Bryant complains of was
not spillover evidence. For example, one of the racketeering acts
charged in the RICO conspiracy was the murder of Mr. Johnson.
And the government presented evidence that Jerimaine Bryant was
a senior member of the DSBF who advised Mr. Glass to kill Mr.
Johnson. The district court did not abuse its discretion in denying
the severance motion.
III. JURY SELECTION
At jury selection, the district court denied the defendants’
Batson challenges, finding that the government had legitimate, non-
discriminatory reasons for exercising six of its eight peremptory
strikes on prospective Black jurors. See generally Batson v. Kentucky,
476 U.S. 79 (1986). Levi Bryant contends that the district court’s
rulings were erroneous, but we are not persuaded. 10
A. BATSON
The Supreme Court has established a three-part inquiry for
evaluating a claim that a peremptory strike is racially discrimina-
tory:
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on
the basis of race. Second, if that showing has been
made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the

10 Jerimaine Bryant, Curtis Bryant, Mr. Ingram, and Mr. Walker adopted Levi

Bryant’s Batson arguments.
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19-10332 Opinion of the Court 29

parties’ submissions, the trial court must determine
whether the defendant has shown purposeful dis-
crimination.
Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003) (citing Batson, 476
U.S. at 96–98). 11
Only step three of that sequence is in dispute here. At step
three, “[i]f a race-neutral explanation is tendered, the trial court
must . . . decide . . . whether the opponent of the strike has proved
purposeful racial discrimination.” Johnson v. California, 545 U.S.
162, 168 (2005) (citation omitted). In other words, “[t]he ultimate
inquiry is whether the [government] was ‘motivated in substantial
part by discriminatory intent.’” Flowers v. Mississippi, 588 U.S. 284,
303 (2019) (citing Foster v. Chatman, 578 U.S. 488, 513 (2016)).
At step three, “the district court’s determination concerning
the actual motivation behind each challenged strike amounts to
pure factfinding, and we will reverse only if the decision is clearly
erroneous.” United States v. Walker, 490 F.3d 1282, 1291 (11th Cir.
2007). The district court’s determination is understandably entitled
to “great weight.” Davis v. Ayala, 576 U.S. 257, 285–86 (2015). And
“[a] finding that is ‘plausible’ in light of the full record—even if an-
other is equally or more so—must govern.” Cooper v. Harris, 581
U.S. 285, 293 (2017) (citation omitted).

11 Batson also applies to discriminatory strikes based on gender, but such strikes

are not at issue here. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).
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30 Opinion of the Court 19-10332

The district court’s perception of an attorney’s credibility
can be critical at step three, and can be measured by, among other
things, “how reasonable, or how improbable, the explanations are;
and by whether the proffered rationale has some basis in accepted
trial strategy.” Miller-El, 537 U.S. at 339. Other relevant factors at
step three include (1) “statistical evidence about the prosecutor’s
use of peremptory strikes against black prospective jurors as com-
pared to white prospective jurors in the case;” (2) “evidence of a
prosecutor’s disparate questioning and investigation of black and
white prospective jurors in the case;” (3) “side-by-side comparisons
of black prospective jurors who were struck and white prospective
jurors who were not struck in the case;” (4) “a prosecutor’s misrep-
resentations of the record when defending the strikes during the
Batson hearing;” and (5) “other relevant circumstances that bear
upon the issue of racial discrimination.” Flowers, 588 U.S. at 302.
B. PROSPECTIVE JURORS 15, 19, 84, AND 103
The government used six of its peremptory strikes on pro-
spective Black jurors. But Levi Bryant challenges as racially moti-
vated only the strikes against Jurors 15, 19, 84, and 103. 12
To establish discriminatory intent, Levi Bryant relies on sta-
tistical evidence, the government’s alleged misrepresentations to

12 During the Batson hearing, defense counsel conceded that the government

appropriately struck Juror 44, a prospective Black juror. The government
struck Juror 85, another prospective Black juror, because he was young, famil-
iar with the South Gwen Cherry area, and self-reported that he was being in-
vestigated by his employer.
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19-10332 Opinion of the Court 31

the district court during the Batson hearing, and comparisons of
prospective Black jurors who were struck to non-Black jurors who
were not struck. We address each type of evidence in turn but ul-
timately consider the evidence cumulatively. See Flowers, 588 U.S.
at 314 (stating that the evidence relevant to the issue of discrimina-
tory intent “cannot be considered in isolation” and a court “must
examine the whole picture”).
1. STATISTICAL EVIDENCE
Looking first at the numbers, the parties narrowed the pool
to 36 prospective jurors, 13 of whom were Black (either African-
American, Jamaican, or Bahamian). After the parties exercised
their peremptory strikes, four members of the 12-person petit jury
were Black. To get there, the government used six of its eight per-
emptory strikes on prospective Black jurors. The government had
additional preemptory strikes that it could have, but did not, use.
The defense, in turn, used three preemptory strikes on prospective
Black jurors. The government attempted to accommodate two
other prospective Black jurors—Jurors 57 and 146—but the district
court struck them for cause.13
On at least two occasions, we have found that a similar pat-
tern of strikes did not indicate discrimination. See United States v.

13 Juror 57 had started a new job and was concerned that she would not be

paid during a lengthy trial. The government proposed having the district
court inform her employer about of the prohibition on discriminating based
on jury duty. Juror 146 had a real estate licensing exam scheduled during the
trial. The government proposed taking a day off on the date of his exam.
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32 Opinion of the Court 19-10332

Dennis, 804 F.2d 1208, 1210–11 (11th Cir. 1986) (no Batson violation
where the jury included two Black jurors and the government used
three of eight peremptory strikes on prospective Black jurors and
an alternate but had four unused challenges); United States v.
Campa, 529 F.3d 980, 998 (11th Cir. 2008) (no Batson violation
where the government chose not to use two of its peremptory
strikes and the jury included three Black jurors and an alternate
Black juror). Under these cases, the statistical evidence here is not
so suggestive of discriminatory strikes so as to render the district
court’s findings clearly erroneous.
2. THE GOVERNMENT’S REASONS
We next examine the race-neutral reasons proffered by the
government. The government took some liberties in describing
some of the prospective Black jurors’ answers, but its descriptions
were not a “series of factually inaccurate explanations” that neces-
sarily signaled discriminatory intent. See Flowers, 588 U.S. at 314.
The district court’s findings that the government’s stated reasons
were race neutral and supported by the record, see D.E. 1201 at 32,
were plausible and therefore not clearly erroneous.
Juror 15. Levi Bryant’s strongest argument concerns Juror
15. As relevant here, Juror 15 was unsure whether she could
properly judge the testimony and credibility of a cooperating wit-
ness, so she left blank the two corresponding questions on the jury
questionnaire. The district court attempted to clarify her position,
but she essentially provided a nonanswer: she “[j]ust didn’t think of
it at the time.” D.E. 1198 at 49–50. Upon further questioning, she
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19-10332 Opinion of the Court 33

said that she was capable of being impartial to cooperating wit-
nesses. The government struck her because it believed that her
failure to answer only those two questions on the questionnaire
indicated that “it was something she just didn’t want to commit
to,” and when she answered the district court’s questions, she did
so “equivocally.” By equivocal, it meant that her answers were
“‘maybe, I don’t know, I guess I could,’ they were not clear, unam-
biguous answers of 100% yes. . . . It was not patently clear for us
that these cooperating witnesses . . . would not be a potential prob-
lem for her.” D.E. 1201 at 9–10.
Juror 15 did not say exactly what the government claimed.
But as to her initial answers, it was not “patently clear” what her
position was on cooperating witnesses—it took the district court
several attempts to clarify her position. So, although the govern-
ment’s explanation to the district court was not entirely accurate,
“mistaken explanations should not be confused with racial discrim-
ination.” Flowers, 588 U.S. at 314. The government was free to
conclude that Juror 15’s initial reticence to answer the two ques-
tions reflected her true feelings and that, in turn, that she merited
a peremptory strike. Cf. Harper v. Lumpkin, 64 F.4th 684, 696–97
(5th Cir. 2023) (rejecting a defendant’s Batson argument that a pro-
spective juror was “not being untruthful or deceptive by failing to
respond to one of the items on the questionnaire”: “[T]his argu-
ment does nothing to demonstrate that the prosecutor’s stated rea-
son was pretextual. Both things can be true: [the juror] could have
been fully truthful and forthcoming, and the prosecutor could have
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34 Opinion of the Court 19-10332

been concerned that she failed to respond to one of the most im-
portant items on the questionnaire.”).
The government also struck Juror 15 due to her exposure to
the criminal justice system. She had a nephew who had been ar-
rested or convicted and she failed to clarify whether she believed
he had been treated fairly.
At the end of the day, the district court’s finding as to Juror
15—that the government exercised a race-neutral strike—was not
clearly erroneous, even when taking into account the statistical ev-
idence.
Juror 103. As to Juror 103, Levi Bryant claims that an admit-
ted misstatement by the government—that Juror 103 (rather than
her husband) was on hemodialysis—was an attempt to misrepre-
sent the record. But the district court did not clearly err in viewing
the government’s misstatement as just a mistake.
The bottom line is that Juror 103 was the primary caretaker
for her son, who is disabled, and for her husband, who was on he-
modialysis awaiting a kidney transplant. In the government’s view,
this was “an unpredictable family health situation that would have
been a disruption for the trial.” D.E. 1201 at 25. The district court
plausibly found that the government’s strike of Juror 103 was race-
neutral, even when the statistical evidence is considered.
Juror 84. Levi Bryant next argues that the government
made material misrepresentations with respect to Juror 84. He
challenges the government’s proffer of a quote from Juror 84 that
she “didn’t trust the system.” L. Bryant Br. at 31. It is true that
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19-10332 Opinion of the Court 35

Juror 84 did not utter those exact words. But in commenting on
her son’s reckless driving charge, she stated that it “took a lot out
of our lives,” and she believed that the charges were excessive and
likely financially motivated. See D.E. 1198 at 122–23. Those com-
ments—particularly her belief that the severity of her son’s charges
was “a money making thing”—could fairly be characterized as a
distrust of the system. See id. The district court’s finding that the
government’s strike of Juror 84 was not racially motivated, even
considered in light of the statistical evidence, was plausible and
therefore not clearly erroneous.
In addition, Levi Bryant challenges the government’s claim
that Juror 84 had an “inability to judge [a] cooperating witness.” L.
Bryant Br. at 31 (quoting D.E. 1201 at 12). This too was not a ma-
terial misrepresentation. Juror 84 believed that it was improper for
cooperating witnesses to receive lesser sentences and did not know
if she could trust their testimony. She would not automatically dis-
credit such testimony, but the fact that a witness cooperated
“might influence [her] decision.” D.E. 1198 at 124. Her perspective
clearly evinced some possible doubt about cooperating witnesses.
Though her statements would not have merited being removed for
cause, the district court was entitled to find that the government
was justified in striking her. See United States v. Hill, 31 F.4th 1076,
1082 (8th Cir. 2022) (explaining that a prospective juror’s inability
to consider the testimony of a cooperating witness constitutes a
“race-neutral reason” for a peremptory strike); United States v.
Thomas, 315 F. App’x 828, 834 (11th Cir. 2009) (concern that pro-
spective jurors “might question the veracity of a cooperating co-
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36 Opinion of the Court 19-10332

defendant’s testimony” constituted a race-neutral reason for use of
peremptory strikes). 14
3. COMPARATOR EVIDENCE
As the final piece of his Batson claim, Levi Bryant attempts
to infer discriminatory intent by comparison.
Starting with the government’s peremptory strike of Juror
19, Levi Bryant’s argument is unpersuasive. The government
struck Juror 19 because she had served on a hung jury, raising con-
cerns of her indecisiveness. This was a race-neutral reason. See
United States v. Hernandez-Garcia, 44 F.4th 1157, 1167 (9th Cir. 2022)
(“Ms. Del Rosario’s prior service on a hung jury was a legitimate
reason [for the use of a peremptory strike.]”); United States v. Rudas,
905 F.2d 38, 41 (2d Cir. 1990) (“Aponte’s service on a hung jury was
a legitimate reason for striking him.”).
Levi Bryant counters that this reason was pretextual because
the government did not strike two prospective non-Black jurors
who also had prior jury service. But those two comparators served
on juries which returned verdicts. Juror 19 was struck not because
she served on a jury, but because of her jury’s inability to reach a
verdict. The comparison therefore misses the mark.
As another point of comparison, Levi Bryant identifies two
prospective non-Black jurors who, like Juror 19, had negative

14 Thomas is an unpublished decision, but we find it persuasive on this point.
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19-10332 Opinion of the Court 37

experiences with the legal system but whom the government did
not strike. Those jurors, however, also did not sit on hung juries.
In sum, none of the prospective non-Black jurors identified
by Levi Bryant shared the totality of Juror 19’s circumstances. He
therefore cannot show, by way of comparison, that the district
court clearly erred in finding that government’s use of a peremp-
tory strike on Juror 19 was race-neutral. See United States v. Stewart,
65 F.3d 918, 926 (11th Cir. 1995) (“We recognize that failing to
strike a white juror who shares some traits with a black juror does
not itself automatically prove the existence of discrimination.”).
4. FAMILIARITY WITH SOUTH GWEN CHERRY
Finally, Levi Bryant argues that the government’s consider-
ation of any prospective juror’s familiarity with the South Gwen
Cherry complex was inherently discriminatory towards prospec-
tive Black jurors because it is located in a predominantly Black
neighborhood. But “[a]n argument relating to the impact of a clas-
sification does not alone show its purpose.” Hernandez v. New York,
500 U.S. 352, 362 (1991).
Familiarity with the South Gwen Cherry complex was just
one factor considered by the government, as it did not seek to ex-
clude any prospective Black juror solely on that basis. And a juror’s
familiarity with—and thus potential bias for or against—the partic-
ular geographic setting of a case (and the defendants who hail from
that area) can be a legitimate reason for the use of a peremptory
strike. See Hollingsworth v. Burton, 30 F.3d 109, 113 (11th Cir. 1994)
(“Studmire’s close connection to the area in which the crime was
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38 Opinion of the Court 19-10332

committed is highly relevant. Living and carpooling in the area cre-
ated both an increased risk of familiarity with the scene of the crime
and a heightened likelihood of being subjected to conversations re-
lating to the crime.”).
The district court found that a “small town familiarity with
a particular area is racially neutral.” D.E. 1201 at 18. Without de-
finitive evidence that the government adopted this criterion with
the intent of excluding Black jurors, the district court did not clearly
err in finding that any disparate impact “[did] not violate the prin-
ciple of race neutrality.” Hernandez, 500 U.S. at 362. See also Flow-
ers, 588 U.S. at 302–03. The district court could have viewed the
record differently, but it was not compelled to do so.
5. SUMMARY
The individual components of Levi Bryant’s Batson claim fall
short. Taken collectively, they also do not show that the district
court clearly erred in finding that the government was not “moti-
vated in substantial part by discriminatory intent” in striking Jurors
15, 19, 84, and 103. See Flowers, 588 U.S. at 303.
IV. THE EVIDENTIARY RULINGS AT TRIAL
The defendants challenge a number of evidentiary rulings
by the district court. Where an objection was properly preserved,
we generally review such rulings for an abuse of discretion. See Fid.
Interior Constr., Inc. v. S.E. Carpenters Reg’l Council, 675 F.3d 1250,
1258 (11th Cir. 2012). This standard “recognizes the range of pos-
sible conclusions the [district court] may reach.” United States v.
Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).
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19-10332 Opinion of the Court 39

We will not disturb an evidentiary ruling unless there is a
“clear error of judgment.” In re Rasbury, 24 F.3d 159, 168 (11th Cir.
1994). Of course, the district court also “abuse[s] its discretion if it
base[s] its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). “So [if] we conclude that the district
court erred, we mean to say that the district court abused its dis-
cretion in one of these ways.” Carrizosa v. Chiquita Brands Int’l, Inc.,
47 F.4th 1278, 1296 (11th Cir. 2022).
A. RULE 801(d)(2)(E)
Our first look at the evidentiary rulings starts with Mr. Ro-
driguez, whom the district court treated as a member of the two
charged conspiracies. He claims that this was error, and that as a
result the district court improperly admitted against him the state-
ments of purported co-conspirators. See Fed. R. Evid. 801(d)(2)(E).
The statements at issue were made by Messrs. Walker and Gra-
ham, and also include those statements contained in Summary Ex-
hibit 303, which was a compilation of thousands of social media
posts by the purported co-conspirators.
Mr. Rodriguez sought to exclude the statements through a
motion in limine. The district court denied the motion without
prejudice and advised Mr. Rodriguez to reassert the objection at
trial should the government seek to introduce the co-conspirators’
statements. There is no indication in the record, however, that Mr.
Rodriguez argued inadmissibility under Rule 801(d)(2)(E) at trial,
and he does not cite to any such objection. Mr. Rodriguez thus
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40 Opinion of the Court 19-10332

failed to preserve the issue, which means that our review is for
plain error. See Fed. R. Evid. 103(b) (“Once the court rules defini-
tively on the record—either before or at trial—a party need not re-
new an objection or offer of proof to preserve a claim of error for
appeal.”) (emphasis added); United States v. Feldman, 936 F.3d 1288,
1300 (11th Cir. 2019) (“Because the magistrate judge did not make
a definitive ruling on the extrapolation issue, Mrs. Feldman was re-
quired to object to Dr. Chaitoff’s statement to avoid plain error re-
view.”). Accord United States v. Broussard, 87 F.4th 376, 379 (8th Cir.
2023) (explaining that a denial of motion in limine accompanied by
an invitation to reassert the objection at trial is not a “definitive”
ruling that preserves an issue for appeal). 15
We find no plain error in the district court’s admission of the
co-conspirators’ statements against Mr. Rodriguez. “For a co-con-
spirator statement to be admissible under [Rule 801(d)(2)(E)], the
government must show by a preponderance of the evidence that:
(1) a conspiracy existed; (2) the defendant and the declarant were
members of the conspiracy; and (3) the statement was made during
the course and in furtherance of the conspiracy.” United States v.
Hough, 803 F.3d 1181, 1193 (11th Cir. 2015). Contrary to Mr.

15 Mr. Ingram, in the table of contents and summary of the arguments of his

brief, also appears to argue that the district court erred in admitting the hear-
say statements of purported co-conspirators. But he does not cite any author-
ity in support of this point. Nor does he devote a discrete section of his argu-
ment to this contention. His failure to adequately brief the issue constitutes
abandonment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014).
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19-10332 Opinion of the Court 41

Rodriguez’s contention, Rule 801(d)(2)(E) does not require “sub-
stantial independent evidence” of a conspiracy. See M. Rodriguez
Br. at 44. When preliminary facts relevant to determining the ad-
missibility of evidence—such as co-conspirator statements—are
disputed, the relevant standard of proof is a preponderance of the
evidence. See Bourjaily v. United States, 483 U.S. 171, 175 (1987). A
preponderance of the evidence “simply requires the trier of fact to
believe that the existence of a fact is more probable than its nonex-
istence.” United States v. Watkins, 10 F.4th 1179, 1184 (11th Cir.
2021) (citation omitted).
The testimony of Mr. Grimes, a former short-lived DSBF
member and unindicted co-conspirator, was enough to establish
Mr. Rodriguez’s participation in the RICO and narcotics conspira-
cies by a preponderance of the evidence. Mr. Grimes testified that,
when he became a member of the DSBF around 2010, Mr. Rodri-
guez was one of the first people he met in the gang. Mr. Rodriguez
was introduced to him as “Blood”—an awfully suspicious nick-
name considering the gang was called the Dub Street Blood Fam-
ily. During his relatively short tenure with the DSBF, Mr. Grimes
frequently hung out with Mr. Rodriguez, including at the latter’s
home. He knew Mr. Rodriguez as the point man for all gang rules
violations and initiations, and as someone who occasionally sup-
plied the gang (and himself) with guns. Mr. Rodriguez also sold
crack cocaine. He had his own clientele, but would step in when
the DSBF ran out of inventory. As Mr. Grimes testified, if Mr. Ro-
driguez had not been a DSBF member, the gang would not have
tolerated him selling drugs at the South Gwen Cherry complex.
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42 Opinion of the Court 19-10332

Had Mr. Rodriguez challenged at trial the admission of co-
conspirator statements against him, Mr. Grimes’ testimony would
have satisfied the district court under Bourjaily. See, e.g., United
States v. Amede, 977 F.3d 1086, 1094–95, 1098 (11th Cir. 2020). Ac-
cordingly, Mr. Rodriguez’s unpreserved, non-specific challenge to
the Rule 801(d)(2)(E) evidence fails. The district court did not
plainly err.
B. RULE 804(b)(3)
Levi Bryant argues that the district court should not have
admitted Jerimaine Bryant’s social media post (which implicated
Levi) under the hearsay exception for statements against interest.
See Fed. R. Evid. 804(b)(3). We are not persuaded.
Rule 804(b)(3) permits the admission of an out-of-court
statement when (1) it is against the penal interest of the declarant,
(2) corroborating circumstances exist indicating the trustworthi-
ness of the statement, and (3) the declarant is unavailable. See
United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986). The
statement must be one that “a reasonable person in the declarant’s
position would have made only if the person believed it to be true
because, when made, it . . . had so great a tendency . . . to expose
the declarant to civil or criminal liability.” Fed. R. Evid.
804(b)(3)(A). 16
As we have explained, Rule 804(b)(3) encompasses more
than “direct confessions of guilt,” and includes “remarks that a

16 Levi Bryant concedes that Jerimaine Bryant was unavailable as a witness.
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19-10332 Opinion of the Court 43

reasonable person would have realized strongly implied [the de-
clarant’s] personal participation in the relevant crime . . . [and] dis-
serving statements by a declarant that would have probative value
in a trial against the declarant.” Chiquita, 47 F.4th at 1308 (citation
and internal quotation marks omitted). Whether a “statement is
self-inculpatory or not can only be determined by viewing it in con-
text [and] . . . in light of all the surrounding circumstances.” Wil-
liamson v. United States, 512 U.S. 594, 603–04 (1994). And whether
a statement is genuinely against a declarant’s penal interest is a
question of law we review de novo. See United States v. Costa, 31 F.3d
1073, 1077 (11th Cir. 1994).
Levi Bryant is the uncle of Jerimaine Bryant, who refers to
Levi as “Fish.” On Facebook, Jerimaine posted the following: “My
uncle fish gave me the game, my Aunte Danielle showed me the
way, and ma n****s got me this far.” Anticipating that the govern-
ment would use this statement to suggest that he taught Jerimaine
the “drug game,” Levi moved to exclude the statement as inadmis-
sible hearsay. See D.E. 1202 at 103. In response, the government
argued that the post was a statement against Jerimaine’s interest—
“that he’s been taught a drug game” by Levi. See id. at 104.
The district court admitted the Facebook post, concluding
that Jerimaine was “admitting complicity.” Id. Though the depth
of this analysis may not have been to Levi’s liking, the district court
considered the parties’ arguments and made a ruling on a matter
of law, that is, whether the statement was against Jerimaine’s penal
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44 Opinion of the Court 19-10332

interest. See Costa, 31 F.3d at 1077. Under the circumstances, no
exhaustive factual explanation was necessary. 17
The focus of our inquiry is on whether the statement “when
made . . . had so great a tendency to . . . expose the declarant to . .
. criminal liability” that a reasonable person in his position would
not have made the statement unless he believed it was true. See
Fed. R. Evid. 804(b)(3)(A). We have described this as an “expansive
test.” United States v. Alvarez, 584 F.2d 694, 700 (5th Cir. 1978).
It is true that there is nothing facially self-inculpatory about
Jerimaine’s Facebook post. According to the post, Levi “gave” him
“the game,” but we do not know from the post itself what that
means. As defense counsel argued in closing, “the game” could
refer to an activity like gambling. See D.E. 1229 at 201–02. See also
The American Heritage Dictionary of the English Language 720
(5th ed. 2011) (defining “game”).
But a “facially neutral statement[ ] might actually be against
a declarant’s interest.” United States v. Thomas, 62 F.3d 1332, 1337
(11th Cir. 1995) (citing Williamson, 512 U.S. at 603). And a state-
ment’s context elucidates its meaning. See, e.g., United States v.
Hammers, 942 F.3d 1001, 1010–11 (10th Cir. 2019) (the “context and
the circumstances” under which statement was made include the
declarant’s state of mind and other statements and actions

17 During her testimony, Sgt. Kelly did exactly what Levi had predicted. She
testified that “the game” likely meant “narcotics sales.” D.E. 1203 at 71–72.
And in its closing argument, the government argued that “[t]he game is
drugs.” D.E. 1231 at 47.
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19-10332 Opinion of the Court 45

accompanying the statement); United States v. Awer, 770 F.3d 83, 94
(1st Cir. 2014) (analyzing a purportedly self-inculpatory statement
in the context in which it was made, rather than in conjunction
with other similar statements made by the defendant); United States
v. Gupta, 747 F.3d 111, 128–29 (2d Cir. 2014) (looking to the declar-
ant’s conduct when the statement was made). We turn, therefore,
to context.
The first important piece of context is that Levi was a known
drug dealer by the time of Jerimaine’s Facebook post in 2015. Be-
tween 2006 and 2012, Levi was arrested four times for selling drugs,
and two of those arrests resulted in convictions. And Mr. Coakley
identified Levi as being one of the DSBF’s earliest members, selling
drugs as early as 2001. The post therefore had a tendency to impli-
cate Jerimaine (the declarant) in Levi’s narcotics activities and the
drug business. See Williamson, 512 U.S. at 603–04 (“‘Sam and I went
to Joe’s house’ might be against the declarant’s interest if a reason-
able person in the declarant’s shoes would realize that being linked
to Joe and Sam would implicate the declarant in Joe and Sam’s con-
spiracy.”). Moreover, Ms. Houser and Mr. Coakley identified
Jerimaine as a crack cocaine supplier for the DSBF. So both Levi
and Jerimaine were involved in the narcotics trade at the time of
Jerimaine’s Facebook post. A reasonable person in Jerimaine’s po-
sition would have made the statement only if he believed it to be
true because it had a tendency to expose him to criminal liability.
This is not one of those instances in which a declarant’s im-
plication of a co-defendant is suspect because it might be an
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46 Opinion of the Court 19-10332

attempt to shift blame or curry favor—the statement here does not
accomplish those ends. See Williamson, 512 U.S. at 603–04; Costa,
31 F.3d at 1078. Given that Levi was a known drug dealer and a
member of the DSBF, and that Jerimaine was known to supply
drugs to the DSBF, the district court did not err in concluding that
“the game” was drug dealing.
Jerimaine’s statement in the Facebook post was also sup-
ported by corroborating circumstances that clearly indicated its
trustworthiness. There was plenty of evidence implicating
Jerimaine in the drug conspiracy. And there is no obvious reason
why he would have fabricated his business relationship with Levi.
See United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1209 (11th
Cir. 2009).
We therefore conclude that Jerimaine’s Facebook post was
properly admitted against Levi under Rule 804(b)(3). 18
C. RULE 801(d)(1)(B)
Mr. Graham argues that the district court erred in allowing
the government to introduce, as a prior consistent statement,

18 We reject the argument made by Levi that admitting Jerimaine’s Facebook

post violated his rights under the Confrontation Clause of the Sixth Amend-
ment. See generally Crawford v. Washington, 541 U.S. 36, 51 (2004). Simply put,
Jerimaine could not have reasonably anticipated that a social media post, made
years before his arrest, would be used in court. The statement is therefore
nontestimonial and the Confrontation Clause does not apply. See United States
v. Hano, 922 F.3d 1272, 1287 (11th Cir. 2019) (explaining that “the threshold
question in every case” raising a confrontation issue “is whether the chal-
lenged statement is testimonial”) (citation omitted).
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19-10332 Opinion of the Court 47

portions of an audio recording in which Donzell Jones, a cooperat-
ing witness, implicated Mr. Graham in a robbery. We disagree.
Under Rule 801(d)(1)(B), a prior consistent statement by a
witness is not hearsay if (1) the declarant testifies and is subject to
cross-examination on the statement; and (2) the statement is con-
sistent with the declarant’s testimony and is offered “to rebut an
express or implied charge that the declarant recently fabricated it
or acted from a recent improper influence or motive in so testify-
ing.” A district court may exclude those parts of a prior consistent
statement that do not relate specifically to matters on which the
declarant was impeached, but “it is not required to do so.” United
v. Brantley, 733 F.2d 1429, 1438 (11th Cir. 1984). “A district court is
granted broad discretion in determining the admissibility of a prior
consistent statement under Fed. R. Evid. 801(d)(1)(B) and will not
be reversed absent a clear showing of abuse of discretion.” United
States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000).
When cross-examining Donzell Jones, defense counsel im-
peached him using an audio recording of his interrogation by two
agents. On redirect, the government played other portions of that
recording to rehabilitate him. Some portions of the interrogation
played by the government apparently implicated Mr. Graham in a
robbery. See D.E. 1114 at 51–56 (“[The government is] presenting
evidence against Reginald Graham now by saying that [they] did
robberies together.”).
The record, however, is silent as to what the recording actu-
ally says. See, e.g., id. at 50 (“Audio playing.”). And because it was
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48 Opinion of the Court 19-10332

impeachment evidence, neither party entered Donzell Jones’ inter-
rogation transcript into evidence. Mr. Graham, moreover, did not
provide us with a copy on appeal. See Fed. R. App. P. 10(b)(2) (“If
the appellant intends to urge on appeal that a finding or conclusion
is unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence rel-
evant to that finding or conclusion.”); Selman v. Cobb Cnty. Sch.
Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (“[T]he burden is on the
appellant to ensure the record on appeal is complete, and where a
failure to discharge that burden prevents us from reviewing the dis-
trict court’s decision we ordinarily will affirm the judgment.”).
Given the incomplete record before us, our review of this issue is
constrained.
There is no dispute that the recording satisfied the first re-
quirement of Rule 801(d)(1)(B). Defense counsel used a portion of
it during Donzell Jones’ cross-examination. As to whether the gov-
ernment properly offered it to rebut defense counsel’s express or
implied charge that Donzell Jones was not credible and/or had an
improper motive in testifying as a cooperating witness, Mr. Gra-
ham argues that Rule 801(d)(1)(B) limits the scope of rehabilitation
to the precise issues on which defense counsel impeached Donzell
Jones. This broad legal assertion, however, is contrary to our prec-
edent. See Brantley, 733 F.2d at 1438. The scope of the govern-
ment’s use of the recording was within the discretion of the district
court, and we are reticent to disturb its decision given the limited
record before us.
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In any event, the record indicates that the government did
not exceed the scope of the impeachment of Donzell Jones. De-
fense counsel cross-examined him on his prior statements, includ-
ing purported lies about his involvement with a group of individu-
als which included several alleged DSBF members, his knowledge
of certain gang members, and his knowledge of robberies that gang
members had participated in. See D.E. 1113 at 17–20; D.E. 1114 at
21–24. On redirect examination, the government offered as a prior
consistent statement another segment of the recording where
Donzell Jones apparently admitted to knowing of the gang’s rob-
beries. This was an express rebuttal of defense counsel’s cross ex-
amination and, as far as we can tell, fell directly within the purview
of Rule 801(d)(1)(B). Accordingly, we conclude that the district
court did not abuse its discretion in allowing the government to
rehabilitate Donzell Jones with his prior consistent statements.
D. LIMITS ON THE CROSS-EXAMINATION OF AGENT PEREZ
Mr. Walker argues that the district court denied him his
Sixth Amendment right to confront witnesses by improperly limit-
ing his cross-examination of Agent Perez. This argument lacks
merit.
A district court generally has discretion to limit the scope of
cross-examination, subject of course to the requirements of the
Sixth Amendment. See United States v. Garcia, 13 F.3d 1464, 1468
(11th Cir. 1994). The Sixth Amendment confers on a defendant the
right to cross-examine a witness to expose motivation and bias, but
the right is not unlimited. See Delaware v. Van Arsdall, 475 U.S. 673,
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50 Opinion of the Court 19-10332

678–79 (1986). It “guarantees an opportunity for effective cross-ex-
amination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v. Fen-
sterer, 474 U.S. 15, 20 (1985) (per curiam). Accordingly, once a party
has had that opportunity, further questioning is generally within
the district court’s discretion. See Garcia, 13 F.3d at 1468. The ques-
tion is “whether a reasonable jury would have received a signifi-
cantly different impression of the witness’ credibility had counsel
pursued the proposed line of cross-examination.” Id. at 1469.
Mr. Walker contends that the district court should not have
precluded him from further cross-examining Agent Perez about a
undercover narcotics buy on May 3, 2017. According to Mr.
Walker, this buy was a last-ditch effort by the authorities to obtain
direct evidence of him selling crack cocaine mere days before the
indictment was returned.
The problem for Mr. Walker is that Agent Perez did not tes-
tify on direct examination about the buy on May 3, 2017. In fact,
he explained—both on direct and cross-examination—that he par-
ticipated as part of the surveillance team for undercover narcotics
buys in the South Gwen Cherry complex only in 2016. See, e.g.,
D.E. 1222 at 160 (Agent Perez: “The May 3rd [drug buy] I was not
involved in it.” Defense Counsel: “All right. [W]ere you involved
in any of Detective Quintero’s attempts to purchase narcotics?”
Agent Perez: “The ones in 2016, yes.”). The district court therefore
did not abuse its discretion or violate Mr. Walker’s Sixth
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19-10332 Opinion of the Court 51

Amendment rights by limiting Mr. Walker’s cross-examination of
Agent Perez on a matter in which he was not involved.
In any event, Mr. Walker did ask Agent Perez some ques-
tions about the May 3, 2017, buy and the indictment, and his gen-
eral authority over the timing of the controlled buys. He even at-
tempted, among other things, to undermine the circumstantial ev-
idence of his participation in drug sales by questioning Agent Perez
on the slang terms in certain Facebook posts. Accordingly, Mr.
Walker had ample opportunity to—and did—thoroughly cross-ex-
amine Agent Perez, such that additional questioning on the buy on
May 3, 2017, would not have impacted the latter’s credibility.
The district court did not abuse its discretion, and did not
violate Mr. Walker’s Sixth Amendment rights, in limiting the cross-
examination of Agent Perez.
E. RULE 801(d)(2)(B)
Curtis Bryant argues that the district court erred in admit-
ting his “giggle and smirk” reaction to a co-conspirator’s statement
as an adoptive admission of his participation in a murder under
Rule 801(d)(2)(B). The issue is close, but the abuse of discretion
standard calls for rejection of the argument.
Mr. Coakley, a cooperating and unindicted co-conspirator,
testified that after the shooting of Mr. Hallman, a rival gang mem-
ber, Jerimaine Bryant announced that “momma got his feet wet.”
According to Mr. Coakley, “Momma” referred to “Big Momma,”
Jerimaine’s nickname for his brother Curtis Bryant, and “got his
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52 Opinion of the Court 19-10332

feet wet” meant “you shot somebody.” In response to Jerimaine’s
statement, Curtis Bryant started “giggling.”
When a statement is offered as an adoptive admission under
Rule 801(d)(2)(B), the district court generally must determine as a
preliminary matter whether (1) “the statement was such that, un-
der the circumstances, an innocent defendant would normally be
induced to respond,” and (2) “there are sufficient foundational facts
from which the jury could infer that the defendant heard, under-
stood, and acquiesced in the statement.” United States v. Carter, 760
F.2d 1568, 1579 (11th Cir. 1985). We review a district court’s rul-
ings under Rule 801(d)(2)(B) for abuse of discretion. See United
States v. Joshi, 896 F.2d 1303, 1312 (11th Cir. 1990).
We have affirmed the admission of non-verbal reactions like
silence and a head-nod as adoptive admissions. See Carter, 760 F.2d
at 1579–80, 1580 n.5 (the defendants’ silence in the back seat of a
vehicle while the front seat passenger made incriminating state-
ments about their drug smuggling activities); Joshi, 896 F.2d at
1311–12 (the defendant’s head nod in response to a statement in-
troducing him and describing his role in a narcotics conspiracy).
We discern no abuse of discretion in the district court’s decision to
admit Jerimaine Bryant’s giggle.
The first criterion for admission under Rule 801(d)(2)(B) is
particularly important when dealing with adoptive admissions by
silence. See United States v. Santos, 947 F.3d 711, 724 (11th Cir.
2020). But if the defendant affirmatively responded to the state-
ment—like by nodding, see Joshi, 896 F.2d at 1311–11, or by
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19-10332 Opinion of the Court 53

giggling, as is the case here—the “focus is on the second criterion.”
Santos, 947 F.3d at 724.
Under the second criterion, we conclude there is sufficient
evidence in the record from which the jury could infer that Curtis
heard and acquiesced in Jerimaine’s statement. Mr. Coakley testi-
fied that Jerimaine told him—in the presence of Curtis—that
“momma got his feet wet.” He also explained that “momma” re-
ferred to Curtis and getting “his feet wet” meaning shooting some-
one. Curtis giggled in response. Laughter, as an affirmative act,
can be stronger evidence of adoption than silence. See Carter, 760
F.2d at 1579–80. Given the stark contrast between the gravity of
the misconduct—a murder—and the tenor of the response, the gig-
gling here was at least as strong as, if not stronger than, the assent
of a head nod. See Joshi, 896 F.2d at 1311–12. 19
Concerning comprehension, Curtis points out that there is
no direct evidence that he necessarily shared Mr. Coakley’s under-
standing of Jerimaine’s statement. To attempt to reconstruct that
understanding, we break down the statement into two constituent

19
In response to Curtis’ hearsay objection at trial, the district court explained
that the second criterion for admission under Rule 801(d)(2)(B) is “really an
issue for the jury.” That was only half right. It is true that the “ultimate
determination of foundational prerequisites for adoptive admissions is for
[the] jury.” Joshi, 896 F.2d at 1312. But as an initial matter the district court
must make a preliminary finding that the “jury could reasonably find that the
defendant comprehended and acquiesced in the statement.” Id. Doing other-
wise “needlessly risks the possibility of reversal if the evidence is subsequently
found to have been erroneously admitted.” Id.
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54 Opinion of the Court 19-10332

parts: (1) the identity of “momma” and (2) the action of getting
one’s “feet wet.” As to the former, Curtis would have known his
brother’s nickname for him, and he does not dispute this fact. As
to the latter, Curtis is correct that we only know for certain how
Mr. Coakley understood the statement. But we are reviewing for
abuse of discretion, and admissibility does not require absolute cer-
tainty. Given his reaction, the district court could find that Curtis
understood a slang term used by a family member. Any ambiguity
in the statement went to weight, not admissibility. And defense
counsel had the opportunity to expose any ambiguity in Mr. Coak-
ley’s cross-examination.
This issue presents a close question, but given our precedent
and the discretion afforded a district court on evidentiary matters,
affirmance is in order. See Frazier, 387 F.3d at 1259 (the abuse of
discretion standard “recognizes the range of possible conclusions
the [district court] may reach”). The district court did not abuse its
discretion in admitting Curtis’ giggle in response to Jerimaine’s
statement as an adoptive admission under Rule 801(d)(2)(B).
F. OTHER ACTS EVIDENCE
Messrs. Hayes and Ingram challenge the admission of cer-
tain “other acts” evidence under Rules 404(b) and 403. Their pre-
trial motion to exclude this evidence below was struck as untimely.
At trial, the district court denied Mr. Hayes’ objection on the merits
because “[t]he subject activity [was] evidence of the racketeering
activity.” D.E. 1201 at 29–30.
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The problem for Messrs. Hayes and Ingram is that they have
failed to properly and sufficiently brief this issue on appeal. Before
trial, the government notified the defendants that it intended to in-
troduce numerous “other acts” against them—at least nine against
Mr. Hayes and eight against Mr. Ingram. See D.E. 444. But on ap-
peal, Messrs. Hayes and Ingram do not tell us with sufficient speci-
ficity what “other acts” were actually and improperly introduced
against them at trial; for what purpose those “other acts” were pre-
sented; and when during the trial those “other acts” were intro-
duced. Mr. Hayes tells us only that the “other acts” introduced
against him were acts of “mugging, auto theft, fleeing and eluding,
possession of firearms, etc.” S. Hayes Br. at 40 (emphasis added).
He argues that those acts were too far removed in time from the
Hobbs Act robberies to be probative of intent. Mr. Ingram is even
less helpful. He simply tells us that the district court erred in ad-
mitting his “co-appellants’ prior arrests” and an arrest or conviction
of his (we don’t really know which) for “possession with intent to
sell controlled substance.” T. Ingram Br. at 55, 57. 20
To properly present an issue on appeal—especially one aris-
ing from a multi-defendant trial lasting almost 40 days—it was in-
cumbent on Messrs. Hayes and Ingram to identify exactly the evi-
dence they now challenge. See Sapuppo, 739 F.3d at 681. We

20 Mr. Hayes describes the “other acts” evidence with more specificity in his

reply brief, but that comes too late. See United States v. Levy, 379 F.3d 1241,
1242–43 (11th Cir. 2004).
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56 Opinion of the Court 19-10332

decline to sift through a transcript of nearly 8,000 pages to figure
out and resolve their arguments.
G. RULE 615(a)
Jerimaine Bryant and Mr. Glass argue that the district court
erred by excluding the testimony of a defense witness for violating
the rule of sequestration. See Fed. R. Evid. 615 (2018). We agree
that the district court erred.
1. MS. BRYANT
The witness at issue was Tracy Bryant, the sister of
Jerimaine, Quincy, and Curtis Bryant and a relative of several other
defendants. She also happened to be the former girlfriend of a gov-
ernment witness, Mr. Coakley, with whom she has five children.
At the start of the trial, defense counsel invoked the rule of
sequestration. And following an evidentiary hearing, the district
court excluded the proﬀered testimony of Ms. Bryant for her vio-
lation of the rule.
Outside of the jury’s presence, Ms. Bryant explained that,
prior to trial, the defense did not ask her to testify and she appar-
ently had no interest in doing so. She did, however, want to ob-
serve the trial. She showed up for voir dire but was placed in an
overflow courtroom with a malfunctioning closed-circuit televi-
sion, got bored, and left. She returned a second time, sat through
some of Sgt. Kelly’s testimony, again got bored, and left. As rele-
vant here, she heard no testimony about Mr. Johnson or his mur-
der. But afterwards she received a call from a friend who told her
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that Mr. Coakley had testified that Mr. Glass murdered Mr. John-
son. This prompted her third visit to the trial, this time to watch
Mr. Coakley testify, and she again left without hearing anything
about Mr. Johnson. She then changed her mind about testifying.
She decided she would testify and contacted the defense because
she believed that Mr. Coakley had lied about Mr. Johnson’s mur-
der.
As she detailed in her proffered testimony, Ms. Bryant and
Mr. Coakley had been in a relationship for about 11 years and had
five children together. At the time of Mr. Johnson’s murder, she
lived in the South Gwen Cherry complex with her grandmother,
mother, two sisters, and of her two brothers, Jerimaine and Quincy
Bryant.
Ms. Bryant testified to where she and Mr. Coakley were on
the night Mr. Johnson was killed. She explained that she and Mr.
Coakley were together in bed watching a movie at her apartment
on the night of the murder. She heard two sets of shots, sitting up
for the first set and slouching for the second set. Mr. Coakley re-
mained asleep during both sets of shots. She then went to the bal-
cony, where she saw people running towards a clothing line but
could not see Mr. Johnson. She returned and woke Mr. Coakley,
who was sick with a stomach virus, to tell him of the shooting.
Mr. Coakley ran out the front door wearing red shorts and
socks, returning to put shoes on before going back out. Ms. Bryant
followed him and went to the clothing line. She did not see Mr.
Coakley, Mr. Glass, Curtis Bryant, or Quincy Bryant during the 10
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58 Opinion of the Court 19-10332

minutes she was there. When she returned home, Ms. Bryant
found her brother Quincy on the couch. He did not appear to be
out of breath, sweating, or to have exerted himself.
According to Ms. Bryant, this series of events lasted 15
minutes. She did not testify, however, as to where Mr. Coakley
went or when he returned.
2. THE RULE OF SEQUESTRATION
District courts have broad discretion to sequester witnesses
before, during, and after their testimony. See Geders v. United States,
425 U.S. 80, 87 (1976). At the time of trial, Rule 615 provided that,
at a party’s request, a district court “must order witnesses excluded
from the courtroom so that they cannot hear other witnesses’ tes-
timony.” 21
The two purposes of excluding prospective witnesses from
trial are to prevent them from tailoring their testimony to that of
earlier witnesses and to facilitate the exposure of false testimony
and other credibility problems. See Geders, 425 U.S. at 87; Warren,
578 F.2d at 1076; 29 Victor J. Gold, Fed. Prac. & Pro. Evid. § 6242
(2d. ed. & June 2024 update). When counsel or a witness violates
the rule of sequestration, the district court may (1) cite the guilty
party for contempt; (2) allow opposing counsel to cross-examine

21 Rule 615 was amended in December of 2023. The new Rule 615(a) operates

only to exclude witnesses from the courtroom, while the new Rule 615(b) al-
lows district courts to enter orders prohibiting disclosure of trial testimony to
witnesses and/or prohibiting excluded witness from accessing the trial testi-
mony.
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the witness as to the nature of the violation; or (3) in the case of an
intentional violation that results in actual prejudice, strike testi-
mony already given or disallow further testimony. See United States
v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983).
A violation of the rule of sequestration does “not . . . require
the automatic exclusion of testimony[.]” United States v. Warren,
578 F.2d 1058, 1076 (5th Cir. 1978). Excluding a witness’ testimony
is a “serious sanction.” Id. at 1327. In all but the most egregious
cases, cross-examination ordinarily has the “curative aspect” of em-
powering the jury to evaluate the violating witness’ credibility. See
United States v. Eyster, 948 F.2d 1196, 1211 (11th Cir. 1991). See also
Holder v. United States, 150 U.S. 91, 92 (1893) (“If a witness disobeys
the order of withdrawal, while he may be proceeded against for
contempt, and his testimony is open to comment to the jury by
reason of his conduct, he is not thereby disqualified, and the weight
of authority is that he cannot be excluded on that ground, merely,
although the right to exclude under particular circumstances may
be supported as within the discretion of the trial court.”); United
States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (“Because exclusion
of a defense witness impinges upon the right to present a defense,
we are quite hesitant to endorse the use of such an extreme rem-
edy.”); United States v. Walker, 613 F.2d 1349, 1355 n.11 (5th Cir.
1980) (“failure of a witness to comply with the sequestration rule
does not of itself render his testimony inadmissible”). A district
court “ordinarily will not exclude witnesses without a demonstra-
tion of probable prejudice.” Warren, 578 F.2d at 1076 n.16.
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60 Opinion of the Court 19-10332

The district court called Ms. Bryant’s conduct “among the
more egregious violations of the [r]ule of [s]equestration.” D.E.
1227 at 32. Reviewing for abuse of discretion, we do not disturb
the district court’s finding of a violation. We have held that a wit-
ness violates a Rule 615 sequestration order by reading the testi-
mony of other witnesses. See, e.g., United States v. Jimenez, 780 F.2d
975, 980 n.7 (11th Cir. 1986) (“Reading prior trial testimony violates
[a Rule 615] sequestration order.”). Being told of another witness’
testimony is not too far removed from the reading of testimony.
Nevertheless, the district court erred in excluding Ms. Bry-
ant as the remedy for the violation. As indicated earlier, ordinarily
a district court will not exclude a witness absent a showing of prob-
able prejudice to the other side. See Warren, 578 F.2d at 1076 n.16.
The district court never made a finding that the government would
likely suffer prejudice if Ms. Bryant were allowed to testify. Indeed,
the government did not claim prejudice below and does not argue
prejudice on appeal.
3. PREJUDICE
We now address whether Jerimaine Bryant and Mr. Glass
were prejudiced by the district court’s error. As previously noted,
Ms. Bryant would have testified as to where she and Mr. Coakley
were on the night of Mr. Johnson’s murder—specifically that he
was asleep wither her in bed when the shots rang out and that she
woke Mr. Coakley to inform him. That testimony, if believed,
would have undermined the testimony of Mr. Coakley that he wit-
nessed Mr. Johnson’s murder.
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Jerimaine Bryant argues that he would have received some
general benefit from Ms. Bryant weakening Mr. Coakley’s overall
credibility. But Jerimaine Bryant was not implicated in the murder
of Mr. Johnson, and as a result his generalized allegations are insuf-
ficient to establish the requisite prejudice. See, e.g., Warren, 578
F.2d at 1076. He therefore has not shown prejudice from the ex-
clusion of Ms. Bryant.
The person most affected by Ms. Bryant’s exclusion was Mr.
Glass, whom Mr. Coakley explicitly incriminated in Mr. Johnson’s
murder. But Mr. Coakley was not the only one to point the finger
at Mr. Glass for the killing. Mr. Grimes testified that other DSBF
members teased Mr. Glass about him murdering Mr. Johnson. Ms.
Houser, a crack cocaine supplier for the DSBF and a cooperating
witness, testified that she saw Mr. Glass shooting over a wall at Mr.
Johnson. She also heard Quincy Bryant and Mr. Glass discussing
the murder. Ms. Bryant’s testimony may have cast doubt on Mr.
Coakley’s version of events, but it would not have impeached Mr.
Grimes or Ms. Houser. Given this additional evidence about Mr.
Glass killing Mr. Johnson, it is not apparent that the exclusion of
Ms. Bryant’s testimony prejudiced Mr. Glass. See Untied State v. Ir-
ving, 665 F.3d 1184, 1209–10 (10th Cir. 2011) (holding that the dis-
trict court’s error in excluding a defense witness due to a violation
of the sequestration rule was not prejudicial in part because there
was “substantial, independent evidence” on the disputed issue at
trial). But because we vacate all of the Count 1 RICO conspiracy
convictions on another ground, we need not make any definitive
pronouncements on prejudice to Mr. Glass.
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62 Opinion of the Court 19-10332

H. SGT. KELLY & AGENT PEREZ: PART 1
The government tendered Sgt. Kelly and Agent Perez as lay
witnesses who could provide certain opinions based upon their
training and expertise. See, e.g., D.E. 1202 at 31. Messrs. Graham,
Walker, and Hayes argue that the district court erred in permitting
them to offer improper dual-capacity testimony as both lay and ex-
pert witnesses.
1. RULES 701 AND 702
“The Federal Rules of Evidence distinguish between lay and
expert opinion testimony.” United States v. Gbenedio, 95 F.4th 1319,
1332 (11th Cir. 2024). Rule 702 generally permits opinions by qual-
ified experts based on “scientific technical, or other specialized
knowledge.” Under Rule 701, lay opinion testimony must, among
other things, be “rationally based on the witness’[ ] perception” and
cannot be “based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”
“The distinction sometimes blurs when [the] testimony is
based on professional work.” Gbenedio, 95 F.4th at 1332. For ex-
ample, just “because an expert could provide the type of testimony
at issue, [that does not mean] a lay witness cannot.” United States
v. Novaton, 271 F.3d 968, 1008 (11th Cir. 2001) (applying pre-2000
version of Rule 701). See Tampa Bay Shipbuilding & Repair Co. v.
Cedar Shipping Co., 320 F.3d 1213, 1223 n.17 (11th Cir. 2003) (ex-
plaining that Novaton remains good law after the 2000 amendment
to Rule 701). Nor does “the lay opinion of a law enforcement offi-
cial automatically become [ ] an expert opinion simply because it
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19-10332 Opinion of the Court 63

involves knowledge that preexisted the investigation in the present
case.” United States v. Williams, 865 F.3d 1328, 1342 (11th Cir. 2017).
We “examine the basis of an opinion to determine whether
it is lay or expert.” Gbenedio, 95 F.4th at 1332. When a witness
testifies in a dual capacity, i.e., as both a lay witness and an expert
witness, the district court must ensure that the lay opinions satisfy
Rule 701 and that the expert opinions satisfy Rule 702. “[P]roper
lay testimony [can be] rendered improper by the indiscriminate
merging of fact testimony with expert testimony” while the wit-
ness is “on the . . . stand.” United States v. Hawkins, 934 F.3d 1251,
1266 (11th Cir. 2019) (holding that it was plain error to allow a po-
lice officer to testify both as lay witness—on matters like his inter-
pretation of drug codes and jargon—and as an expert witness—on
matters like interpreting conversations and drawing inferences
from them as a whole, describing how cocaine is “cooked,” and
providing an overview of the evidence—without demarcation).
Together, Sgt. Kelly and Agent Perez constituted an im-
portant part of the government’s case. Sgt. Perez testified for three
days and Agent Perez for nine. We discuss their testimony sepa-
rately, starting with Sgt. Kelly.
2. SGT. KELLY
At the time of trial, Sgt. Kelly had been investigating gangs
in Miami for five years. See D.E. 1032 at 25. She had attended three
courses on gangs (basic, intermediate, and advanced) offered by the
Florida Department of Law Enforcement and had taken classes on
how to use social media for investigations. See D.E. 1203 at 42–43.
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64 Opinion of the Court 19-10332

And in the course of her work she had met with and talked to over
50 gang members. See D.E. 1204 at 31. With respect to her inves-
tigation of the DSBF, she conducted surveillance at the South
Gwen Cherry complex, was involved in some controlled purchases
of narcotics, used informants, reviewed surveillance videos from
pole cameras, and engaged in a review of the defendants’ social me-
dia activity. See, e.g., D.E. 1202 at 26–33.
During her direct examination, and without any objections,
Sgt. Kelly testified about or opined on a number of subjects. These
included the nicknames of some of the defendants (e.g., Mr. Gra-
ham’s username on a social media account was “G’Rico Long Live
King Squeezer”); the meaning of terms like “4-20” (a marijuana spe-
cial for $200 on April 20), “code red” (police in the area), “top-
shotta” (a leader or someone who is on top), “whip” (a car), “trap”
(the place where narcotics are kept and sold), “opp” (rival gang),
“jitt charges” (juvenile charges), and “broom” (a gun); and the in-
terpretation or meaning of certain gang signs. See D.E. 1203 at 14;
D.E. 1202 at 47, 51, 53–54, 73, 76, 93–94, 99, 109, 114.
The first defense objection under Rule 702 to Sgt. Kelly’s tes-
timony was to a question about the meaning of the term “crabs.”
See D.E. 1202 at 127–28. After the government went over Sgt.
Kelly’s training and experience, the defense objected again on Rule
702 grounds. See id. at 130. The district court overruled the objec-
tion, explaining that “it was up to the jury to decide” and that it was
“not a gatekeeper in this area any longer. I think the rules have
changed.” Id. at 130–31. The district court then explained,
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19-10332 Opinion of the Court 65

however, that “[t]he question [was] whether [Sgt. Kelly’s] experi-
ence qualifie[d] her to explain what certain words mean in this con-
text, and I think that goes to the weight of it.” Id. at 131.
After this exchange, Sgt. Kelly testified that “crabs” “usually
means Crips.” She also explained that “OTF” means “only the fam-
ily.” Id. at 132, 134. 22
With respect to Sgt. Kelly, we see no reversible dual-capacity
error.
First, aside from the two answers described above, Sgt.
Kelly’s opinions on nicknames, the meaning of terms used by the
defendants, and gang signs came in without any objections. That
means we review the admission of those opinions for plain error,
see United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011),
and there is no error that is plain given our precedent permitting
lay opinion testimony on similar subjects by law enforcement of-
ficers with sufficient experience. See, e.g., Novaton, 271 F.3d at 1009
(agents who monitored wiretaps testifying about code words);
United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011) (FBI
agent testifying about code words, nicknames, references, and in-
terpretations of calls and communications).
Second, as to the two opinions to which objections were pre-
served—that “crabs” “usually means ‘Crips’” and that “OTF”

22 There was also a defense objection when Sgt. Kelly was asked to opine about

the meaning of the term “jump.” The objection was overruled, but Sgt. Kelly
ultimately did not give an opinion. See D.E. 1202 at 100.
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66 Opinion of the Court 19-10332

means “only the family”—we conclude that the district court ini-
tially erred in stating that it did not have the role of gatekeeper. As
our cases explain, the district court must ensure that expert testi-
mony under Rule 702 does not come in under the guise of lay opin-
ion testimony under Rule 701. See Hawkins, 934 F.3d at 1265–66.
And in order to carry out this task, the district court must indeed
act as a gatekeeper. Otherwise, dual-capacity opinion testimony
may prove problematic. See, e.g., United States v. Dulcio, 441 F.3d
1269, 1274 (11th Cir. 2006) (“We agree that it is error to admit opin-
ion testimony of lay witnesses based upon specialized knowledge,
such as [testimony by an agent on the modus operandi of people
involved in the drug business].”).
Nevertheless, the district court also explained that the ques-
tion was whether Sgt. Kelly, by virtue of her experience, could pro-
vide a lay opinion on a given subject. And given her experience in
gang investigations, her work in this case, and her review of the
defendants’ voluminous social media activity, allowing Sgt. Kelly
to opine on the meaning of “crabs” and “OTF” was not an abuse of
discretion. See, e.g., United States v. Wall, 116 F.4th 1285, 1308 (11th
Cir. 2024) (case agents did not violate Hawkins by providing “per-
missible factual or lay opinion testimony tied to the specifics of
their investigation”); Gbenedio, 95 F.4th at 1333 (DEA agent allowed
to opine, based on his personal observations, that the defendant
dispensed controlled substances without a legitimate medical pur-
pose and outside the normal course of practice). And even if there
was any error, we fail to see how the defendants suffered any prej-
udice from two opinions on relatively non-important matters.
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3. AGENT PEREZ
We now turn to Agent Perez. As with Sgt. Kelly, we will
focus on the specific testimony that the defendants challenge on
appeal.
At the time of trial, Agent Perez was a special agent in the
ATF’s Miami field office. He had served as an agent for eight years
and focused on investigating violent crimes, such as robberies,
gang activity, arsons, and explosives. He was the case agent, which
meant that he coordinated the various local and federal investiga-
tory resources. He also executed many of the search warrants used
in this case. See D.E. 1114 at 132–34.
Much like Sgt. Kelly, the vast majority of Agent Perez’s tes-
timony complained of by the defendants on appeal came in with-
out objection. For instance, Mr. Graham argues on appeal that
Agent Perez provided certain testimony based on his “training and
experience” that amounted to improper expert testimony. See R.
Graham Br. at 13 (providing a string cite to Agent Perez’s testi-
mony). But based on our review of Mr. Graham’s record cites, and
those provided by Messrs. Walker and Graham, we conclude that
they failed to raise contemporaneous Rule 702 objections. In fact,
in most instances the defendants did not object at all. See, e.g., D.E.
1114 at 177 (“Q: Based on your training and experience and inves-
tigation in this case, what does the phrase ‘BLATT’ mean? A: It’s
also associated with the Blood gang.”); id. at 201 (“Q: Are you fa-
miliar with the phrase ‘Blood in and Blood out’? Do you know
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68 Opinion of the Court 19-10332

what that means? A: I do, yes. Q: And what does it mean? A: It
means that you are a Blood from birth, always.”).
Given the lack of contemporaneous objections on Rule 702
grounds, we review for plain error. See Wetherald, 636 F.3d at 1320.
As with Sgt. Kelly, we find no plain error in the district court allow-
ing Agent Perez to testify about the meaning of terms, code words,
and other gang-related phrases and actions. That is because our
precedent allows testimony very close to what Agent Perez pro-
vided. See, e.g., Wall, 116 F.4th at 1308; Jayyousi, 657 F.3d at 1102;
Novaton, 271 F.3d at 1009.
The only preserved Rule 702 objection was to Agent Perez’s
testimony explaining why the word “Crazy” was spelled with a “B”
instead of a “C.” See D.E. 1217 at 85–86 (“A: That’s Brazzy. Q: [I]n
the course of this investigation, have you seen . . . the letter B sub-
stituted for the letter C? A: I have. Q: And why is that? A: It’s a
reference to the Bloods and not wanting the use the word C be-
cause it refers to Crips. [Defense counsel]: Objection, Your Honor
. . . it’s calling for his opinion that is not just a lay opinion, but a
specialized opinion which he’s not qualified for at this point.”).
But the district court in effect sustained that objection by re-
quiring Agent Perez to clarify whether, in the course of his investi-
gation, he had seen the defendants switch the letter “B” for “C.”
See id. After confirming that he had, the government then asked
him whether the defendants had a “common association.” Agent
Perez responded, “[y]es . . . [t]hey all subscribe to the Blood gang.”
Id. at 86. The defendants’ objection to the latter answer was that
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Agent Perez improperly drew a “conclusion that is not . . . for him
to make at this point.” Id. at 87. The district court overruled that
objection and the testimony continued without further reference
to the previously-objected-to “specialized” testimony. We con-
clude the testimony was permissible because it was based on Agent
Perez’s investigation in this case. See, e.g., Novaton, 271 F.3d at 1009.
In sum, we find no reversible error in the district court’s de-
cision to allow Sgt. Kelly and Agent Perez to testify about the de-
fendants’ association with the Bloods and the meaning of certain
terms and gang-related code words.
I. SGT. KELLY & AGENT PEREZ: PART 2
Mr. Hayes raises another plain-error challenge to the testi-
mony of Sgt. Kelly and Agent Perez. He argues that they offered
impermissible expert conclusions on the ultimate issue of whether
there was a RICO enterprise by referring to the defendants collec-
tively as a “gang” or an “organization.” See S. Hayes Br. at 10–11.
This argument is misplaced. Even assuming that Sgt. Kelly
and Agent Perez provided Rule 702 testimony, experts may testify
on ultimate issues so long as they do not opine on the defendants’
mental state or condition in a criminal case. See Fed. R. Evid.
704(b). See also United States v. Gryzbowicz, 747 F.3d 1296, 1310
(11th Cir. 2014) (“[A]n expert may testify as to his opinion on an
ultimate issue of fact provided that he does not merely tell the jury
what result to reach or testify to the legal implications of conduct.”)
(citation and internal quotation marks omitted). Because the exist-
ence of an enterprise is not a matter involving scienter, see Boyle v.
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70 Opinion of the Court 19-10332

United States, 556 U.S. 938, 944–45 (2009) (laying out the “broad”
understanding of a RICO enterprise), there was no plain error.
J. SGT. KELLY & AGENT PEREZ: PART 3
Curtis Bryant challenges some of the testimony of Sgt. Kelly
and Agent Perez on separate and unrelated grounds. He argues
that there was no evidence that the social media account attributed
to him in fact belonged to him. But this is simply not correct. The
account, belonging to “Snow Bryant,” shared his last name and in-
cluded multiple photographs of him (several of which were selfies).
In the comments to one of the account’s posts, another user ad-
dressed “Snow” as “Curt” and “Curtis.” See Gov’t Exh. 306 at 6972,
6993–95, 7015, 7065. Accordingly, there was sufficient evidence
that the account more likely than not belonged to Curtis Bryant.
See Fed. R. Evid. 104(b).
In addition, Curtis Bryant contends that the district court
should have excluded this social media evidence under Rule 403 as
irrelevant and unfairly prejudicial. “Rule 403 ‘is an extraordinary
remedy which the district court should invoke sparingly, and the
balance should be struck in favor of admissibility.’ . . . The balance
to be struck is largely committed to the discretion of the district
court[.]” United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011)
(citation omitted).
As the government correctly points out, the account in ques-
tion contained a significant amount of relevant information. For
example, on multiple occasions the owner used the hashtag
“GMT,” an alternative acronym for the DSBF, and posted pictures
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19-10332 Opinion of the Court 71

of Mr. Hallman, a rival gang member, including one of him in a
casket at his funeral. This was significant because Mr. Coakley of-
fered testimony from which the jury could find that Curtis Bryant
killed Mr. Hallman. So did Ms. Houser.
The social media evidence therefore suggested gang affilia-
tion and further tied Curtis Bryant to the homicide of a rival gang
member. This evidence was certainly prejudicial to Curtis Bryant,
but not in a legally unfair way. On this record, we cannot say that
any such prejudice substantially outweighed its probative value.
Accordingly, the district court did not abuse its discretion in admit-
ting evidence of the “Snow Bryant” social media account.
V. THE DEFENSE EXPERT
The district court excluded all of the testimony of a defense
gang expert, Dr. Jesse de la Cruz. The defendants challenge his ex-
clusion on appeal.
We review rulings on the admissibility of expert testimony
under the abuse of discretion standard. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999). This deferential standard gives
the district court “‘considerable leeway’” in making its evidentiary
determinations. See Frazier, 387 F.3d at 1258 (quoting Kumho Tire,
526 U.S. at 152). We may aﬃrm an evidentiary ruling on any
ground supported by the record, even if that ground was not the
basis for the district court’s ruling. See In re Int’l Management Assocs.
LLC, 781 F.3d 1262, 1266 (11th Cir. 2015). See also Samaan v. St. Jo-
seph Hosp., 670 F.3d 21, 31 n.4 (1st Cir. 2012) (applying this principle
to the exclusion of expert testimony).
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72 Opinion of the Court 19-10332

Before summarizing Dr. de la Cruz’s proposed testimony, we
describe the evidence presented by the government about the
DSBF and its aﬃliation or connection with the Bloods. That evi-
dence will explain the relevance of Dr. de la Cruz’s testimony.
A. THE GOVERNMENT’S GANG AND BLOODS EVIDENCE
Count 1 of the indictment charged the defendants with be-
ing members of a RICO conspiracy in violation of 18 U.S.C. §
1962(d). The defendants, according to the government, were part
of the DSBF, a criminal gang (an enterprise) which traﬃcked in
narcotics and committed other crimes (like robbery and murder)
from 2000 through 2017 out of the South Gwen Cherry complex.
See D.E. 193 at 2–8.
In its case in chief, the government presented the expert tes-
timony of FBI Special Agent Christopher Mayo. As relevant here,
he testiﬁed that (1) “an open air drug market” is a place where drug
transactions take place outdoors; (2) in South Florida most gangs
are community-based, operate by themselves in a geographic area,
and are made up of members who grew up in a certain area; (3)
“typically” there aren’t “nationally-based gangs”; (4) drug organiza-
tions usually sell narcotics at retail from a location, or “trap;” (5)
drug organizations have individuals performing diﬀerent functions
(e.g., suppliers, lieutenants, sellers, lookouts, etc.); (6) drug organi-
zations also have workers who handle weapons (like ﬁrearms) and
are in charge of security “in case they’re robbed by rival gang mem-
bers or other drug traﬃckers;” (7) drug organizations utilize people
who will conduct robberies (e.g., of other drug organizations) or
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19-10332 Opinion of the Court 73

commit homicides; (8) cocaine is a powder and is traﬃcked from
Ecuador through go-fast vessels in the Eastern Paciﬁc and Carib-
bean, into Mexico and/or the United States; (9) cocaine is cooked
with baking soda and water to form cocaine base in a rock-like
form; (10) marijuana is grown in South Florida in grow houses and
is also imported from Mexico and places like Colorado; and (11)
the slang term “dub” refers to 20, as in a “20 piece of cocaine or $20
worth of marijuana.” See D.E. 1215 at 95–108.
Agent Mayo was not asked about the Bloods, or about
whether the defendants were in a gang that considered itself a
Bloods gang. Other government witnesses, however, testiﬁed ex-
tensively about how the DSBF identiﬁed itself and considered itself
as a Bloods gang.
Sgt. Kelly provided testimony about the Bloods and its con-
nection to the DSBF. She testiﬁed that “[t]his gang [the DSBF] iden-
tiﬁes themselves as the Bloods.” D.E. 1202 at 75. She also explained
that a defendant wearing a red bandana was “an indication for
Blood[s]” and showed gang members “identifying themselves as
Blood[s] members.” Id. at 96–97. In her experience, the Bloods
wear red “most of the time,” but “not all the time.” D.E. 1203 at
37, 39. When asked about “Tone Bleedin Red,” the Facebook name
of Mr. Glass, she responded that the name meant “[t]hat he’s a
Blood, that he’s bleeding red for Blood.” D.E. 1202 at 99. Similarly,
she reviewed a photograph of Jerimaine Bryant and told the jury
that he was making a “Blood” sign. See D.E. 1203 at 52 (“Usually
people that associate themselves with the Bloods . . . they throw
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74 Opinion of the Court 19-10332

that gang sign.”). She said that the “Bloods” and “Crips” are “ri-
vals.” D.E. 1202 at 132.
In relatively lengthy exchange with the government, Sgt.
Kelly also testiﬁed that (1) in South Florida the number one factor
to determine gang membership are the “red bandanas;” (2) the two
main gang criteria she looks for are “the colors, the red, [and] the
hand signs they [are] throwing;” and (3) other criteria are “[h]ow
they [the members] call themselves as a group,” and whether a per-
son identiﬁes as a member—“Q: What do you think about some-
one who claims that they’re a Blood? A: If they say that, it’s because
they’re Bloods and we usually document it as Blood[s] members.”
D.E. 1204 at 29–31. See also D.E. 1202 at 96–97 (“Q: [W]hat is the
signiﬁcance of the red bandana? A: That’s signiﬁcance [sic] that
they [are] actually Blood, that they [are] part of a gang, that they’re
identifying themselves as Blood members.”).
Signiﬁcantly, Sgt. Kelly also testiﬁed about the “connection”
between the DSBF and the national Bloods gang. In her opinion,
the DSBF was “a subset” of the Bloods. See D.E. 1202 at 120.
Like Sgt. Kelly, Agent Perez testiﬁed about the aﬃliation of
the DSBF with the Bloods. He explained that the members of the
defendants’ gang “all subscribe to the Blood gang.” D.E. 1217 at
86. He also said that certain words and phrases used by the defend-
ants (and their spellings) were references to the Bloods or their
code. See, e.g., D.E. 1218 at 71–75. For example, he told the jury
that “based on [his] training and experience” the use of the word
“blatt” in some of the defendants’ social media posts was
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19-10332 Opinion of the Court 75

“associated with the gang of the Bloods.” D.E. 1220 at 91. See also
D.E. 1219 at 78 (identifying an exhibit as a “photograph of
Jerimaine Bryant displaying the hand sign for Bloods”).
The government’s evidence about the Bloods gang and its
connection to the DSBF was not limited to the testimony of law
enforcement oﬃcials. Two cooperating witnesses—Messrs.
Grimes and Coakley—also testiﬁed that the defendants’ gang was
aﬃliated with the Bloods. Mr. Grimes told the jury that the DSBF
was a “Blood gang” which used an initiation ritual (a 31-second
beatdown) that “came from Blood like Blood code,” and explained
that the members considered themselves East-side Bloods because
they were on the east coast. See D.E. 1204 at 160–61, 165, 168. Mr.
Coakley conﬁrmed the DSBF’s aﬃliation with the Bloods gang. See
D.E. 1205 at 45, 179, 193. In addition, there was testimony by other
government witnesses about the defendants’ social media posts,
which frequently referenced the defendants’ Bloods membership.
See D.E. 1219 at 39, 68, 75, 77–78, 83–84; D.E. 1221 at 3, 6, 8, 10–12,
14.
B. DR. DE LA CRUZ
Dr. de la Cruz holds a bachelor’s degree in Sociology with a
minor in Deviant Behavior, as well as a master’s degree in Social
Work. See D.E. 1221 at 85. He was a gang member in California in
the 1970s and wrote his dissertation about gang members from
Stockton who were aligned with the “Norteños.” See id. at 85–87.
He also interacted with members of the Bloods during his own in-
carceration and during his stint as the director of a program dealing
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76 Opinion of the Court 19-10332

with parolees who had a high-risk of recidivism. See id. at 99–102.
He has been qualiﬁed to testify as an expert on gang-related matters
over 60 times in state and federal courts, and he has served as an
expert consultant in over 500 other cases. See id. at 102–04. The
defendants wanted to call him as a gang expert to explain that the
defendants were not members of the Bloods or of a gang and there-
fore did not constitute a criminal enterprise. See id. at 60–61, 67.
In his testimonial proﬀer outside of the jury’s presence, Dr.
de la Cruz provided the following opinions after reviewing some of
the trial testimony and exhibits: (1) gangs, including the Bloods and
the Crips, generally have rules; (2) gangs have leaders and gang
members commit crimes for the beneﬁt of the organization; (3)
proﬁts are managed by a treasurer; (4) most gangs do not allow
members to use drugs, and sometimes punish drug use with death;
(5) gangs do not allow members to assault or kill other members
without permission; and (6) the defendants were not a gang or
criminal enterprise because (a) they were a “bunch of yahoos run-
ning around . . . breaking the law with no sense of direction, with
no leadership direction,” (b) they used drugs, which was incon-
sistent with the behavior of those in criminal enterprises, (c) they
did not get together for meetings to discuss the organization’s busi-
ness, (d) they were “shooting each other indiscriminately,” and (e)
they did not kill rivals. See id. at 90–98. He also opined that the
defendants were “not Bloods” because they wore blue instead of
red, they attacked each other, and they talked to the police. See id.
at 102-08. In sum, the defendants did “not meet one of the ele-
ments of a criminal enterprise[.]” Id. at 108.
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19-10332 Opinion of the Court 77

During cross-examination in the proﬀer session, Dr. de la
Cruz acknowledged that he was talking about the Bloods in gen-
eral. He maintained that all of the Bloods gangs were connected
under the “People Nation” or “Folk Nation” umbrella, but he had
not interviewed any members of the Bloods outside of California
or New York/Pennsylvania. See id. at 118–19.
C. DISCUSSION
The district court excluded all of Dr. de la Cruz’s testimony
on three grounds. First, it ruled that his testimony was not relevant
because the government had not tried to connect the DSBF to the
national Bloods gang. Second, it believed that one of Dr. de la
Cruz’s opinions went to the ultimate issue in the case (i.e., whether
the defendants formed a criminal enterprise) and thus was not
properly “the subject of expert testimony.” Third, it concluded that
Dr. de la Cruz was not an “expert in th[e] area” of criminal enter-
prises and was not oﬀered as an expert in that area. See D.E. 1221
at 1224–26. 23
All three grounds were mistaken on either the facts, the law,
or both. We explain why below.
1. RELEVANCE
Starting with relevance, the district court seems to have
simply overlooked or misunderstood the government’s Bloods-

23 The district court did not exclude Dr. de la Cruz under the qualification or

reliability aspects of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
or its progeny.
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78 Opinion of the Court 19-10332

related evidence. As detailed above, the government presented
considerable testimony from a number of witnesses—including
Sgt. Kelly, Agent Perez, and former DSBF members—about the
DSBF being a Bloods gang or a Bloods-aﬃliated gang and the de-
fendants using Bloods nicknames, terms, and signs. If the govern-
ment thought that Bloods-related evidence was irrelevant, it would
not have presented this evidence for the jury to consider.
Evidence is relevant if it has “any tendency to make a fact
more or less probable than it would be without the evidence; and
the fact is of consequence in determining the action.” Fed. R. Evid.
401. We have explained that “[t]he standard for what consti-
tutes relevant evidence is a low one,” United States v. Tinoco, 304
F.3d 1088, 1120 (11th Cir. 2002) (quoting Fed. R. Evid. 401), and
given the government’s Bloods-related evidence Dr. de la Cruz’s
testimony certainly met that bar. Accord Roger C. Park & Aviva
Orenstein, Trial Objections Handbook 2d § 2:1 (2023) (“Rule 401
adopts a very broad concept of relevance.”).
“In the law, what’s sauce for the goose is normally sauce for
the gander,” and we “have applied this commonsense principle of
equal treatment in the context of expert witnesses.” United States
v. Knowles, 889 F.3d 1251, 1257–58 (11th Cir. 2018). It is therefore
“an abuse of discretion to exclude the otherwise admissible opinion
of a party’s expert on a critical issue, while allowing the opinion of
his adversary’s expert on the same issue.” United States v. Lankford,
955 F.2d 1545, 1552 (11th Cir. 1993).
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This principle, we think, also applies when the defense wants
to present expert testimony to counter factual testimony and/or
lay opinions oﬀered by government witnesses. Where the govern-
ment presents evidence to support a certain theory, a defendant is
entitled to rebut that theory with evidence of his own. See, e.g.,
United States v. Word, 129 F.3d 1209, 1212–13 (11th Cir. 1997) (revers-
ing conviction because the defendant “was not aﬀorded the oppor-
tunity to present evidence to counter the government’s argument,”
as the government’s “trial strategy made this defense evidence
highly signiﬁcant”). Moreover, expert testimony can be used to
counter an opponent’s fact or lay opinion testimony. See, e.g., Panger
v. Duluth, Winnipeg & Pac. Ry. Co., 490 F.2d 1112, 1117 (8th Cir. 1974)
(explaining that, where the plaintiﬀ oﬀered a lay opinion in his own
testimony, “the defendant should have been accorded the right to
counter that evidence with either factual evidence of its own or
properly proﬀered expert testimony”).
The defendants were charged in Count 1 with participating
in a RICO conspiracy in which their criminal gang (the DSBF) was
the alleged enterprise. Dr. de la Cruz’s testimony about gangs (and
the Bloods) would have been helpful to the jury in determining (a)
whether the defendants were part of a criminal gang and (b)
whether the gang constituted the enterprise alleged in the charged
RICO conspiracy.
“Rule 702 . . . requires that the evidence or testimony ‘assist
the trier of fact to understand the evidence or to determine a fact
in issue[,]’ [and] [t]his condition goes primarily to relevance.”
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80 Opinion of the Court 19-10332

Daubert, 509 U.S. at 591. The topics of gangs, gang membership,
and gang aﬃliation are not matters within the “common
knowledge of [lay] jurors.” Evans v. Mathis Funeral Homes, Inc., 996
F.2d 266, 268 (11th Cir. 1993). Other circuits have allowed the sort
of expert opinions that Dr. de la Cruz sought to oﬀer, and we think
their decisions are persuasive on this point. See, e.g., United States v.
Portillo, 969 F.3d 144, 169 (5th Cir. 2020) (upholding district court’s
decision to allow a government expert to testify about the Bandidos
Outlaw gang, which was the charged enterprise in a RICO case:
“Likewise, the district court did not abuse its discretion in conclud-
ing that Schuster’s testimony [about the Bandidos Outlaws] would
be helpful to the jury.”); United States v. Kamahele, 748 F.3d 984, 999
(10th Cir. 2014) (“The district court allowed Oﬃcer Merino’s testi-
mony after ﬁnding that it helped the jury by providing insights into
the distinctive traits of TCG [the alleged gang], a topic beyond the
knowledge of most jurors. This ruling fell within the district
court’s discretion[.]”). Moreover, that Dr. de la Cruz’s testimony
focused in part on the national Bloods gang did not render his opin-
ions about the defendants or the DSBF irrelevant or otherwise im-
proper. See United States v. Ledbetter, 929 F.3d 338, 349 (6th Cir. 2019)
(“Detective Caﬀey would not have been a reliable expert on the
Short North Posse itself. But he did not purport to be. Detective
Caﬀey opined about the national Crips gang, on which he was qual-
iﬁed, and the Government used other testimony to show that the
Short North Posse ﬁt the description of a Crip set. This exact ap-
proach—eliciting expert testimony on a national gang and
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19-10332 Opinion of the Court 81

separately drawing a link to the local set—was approved of [by us
in an earlier case].”).
Dr. de la Cruz’s testimony also did not improperly go to an
ultimate issue in the case. As we explained earlier, with the excep-
tion of testimony on the mental state or condition of a defendant
in a criminal case, there is no categorical prohibition on expert tes-
timony concerning an ultimate issue of fact: except as provided in
subsection (b) of Rule 704, “[a]n opinion is not objectionable just
because it embraces an ultimate issue.” Fed. R. Evid. 704(a). As a
result, “the mere fact that an expert’s conclusion trenches upon a
jury issue does not compel exclusion” because Rule 704 “abolishes
the per se rule against testimony regarding ultimate issues of fact.”
United States v. Milton, 555 F.2d 1198, 1203 (5th Cir. 1977) (holding
that, in a criminal prosecution for conducting an illegal gambling
business, a government expert’s testimony that certain transactions
constituted “lay oﬀ bets” was admissible).
In the government’s view, Dr. de la Cruz’s testimony was
“akin to Pat Riley [the former head coach for the Lakers, Knicks,
and Heat] asserting that a group from a YMCA recreational league
did not constitute a ‘basketball team’ because, in his decades of
NBA experience, a team required players drafted from top college
programs, paid millions of dollars, and . . . practiced multiple days
a week.” Appellee’s Br. at 56. But that hypothetical does not quite
ﬁt.
The proper question is not, as the government suggests,
whether Mr. Riley would have been allowed to testify that a YMCA
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82 Opinion of the Court 19-10332

team playing a pickup game is a not team in the sense of the rules
of basketball, but whether he would have been allowed to testify
that such a team—which can change players every day or week and
may not have any collective continuity or goal over a period of
time—is not an enterprise with relationships among its members
(the changing players) and a longevity suﬃcient to pursue a given
common purpose. One of the instructions provided to the jury
explained that a RICO enterprise, “in addition to having a common
purpose, must have personnel who function as a continuing unit,”
and that “an association of individuals may retain its status as an
enterprise even though the membership of the association changes
by adding or losing individuals during the course of its existence.”
D.E. 725 at 19.
2. THE EXISTENCE OF AN ENTERPRISE
In addition, Dr. de la Cruz’s testimony did not amount to an
improper legal conclusion. One of the factual issues the jury was
asked to decide was whether the defendants agreed (i.e., conspired)
to participate in a racketeering enterprise. See D.E. 725 at 17–18.
To that end, the district court gave the jury a deﬁnition of a RICO
enterprise. See id. at 19.
As a number of our sister circuits have explained, the “exist-
ence vel non of a RICO enterprise is a question of fact for the jury.”
United States v. Console, 13 F.3d 641, 650 (3d Cir. 1993). Accord United
States v. Sanders, 928 F.2d 940, 943 (10th Cir. 1991) (explaining that,
in a RICO prosecution, “[t]he issues of ongoing organization, con-
tinuing membership and an enterprise existing apart from the
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19-10332 Opinion of the Court 83

underlying pattern of racketeering are factual questions for the
jury”); United States v. DeFries, 129 F.3d 1293, 1310 n.9 (D.C. Cir.
1997) (“To the extent that the government argues that whether the
two unions constituted a single enterprise is a matter of law, it is
mistaken.”). Dr. de la Cruz’s opinion that the defendants and their
gang—the DSBF—were not a criminal enterprise therefore did not
constitute an impermissible opinion on a legal issue. See also United
States v. Weinstein, 762 F.2d 1522, 1535–39 (11th Cir. 1985) (analyzing
the existence of a RICO enterprise as a fact question for the jury).
Indeed, because the existence of an enterprise is an element
of a substantive RICO offense under 18 U.S.C. § 1962(c), see United
States v. Phillips, 664 F.2d 971, 1011 (5th Cir. Unit B 1981), it is the
jury which must decide whether an enterprise has been proven be-
yond a reasonable doubt. See United States v. Turkette, 452 U.S. 576,
583 (1981) (“In order to secure a conviction under RICO, the Gov-
ernment must prove both the existence of an ‘enterprise’ and the
connected ‘pattern of racketeering activity.’ . . . The existence of an
enterprise remains a separate element which must be proved by
the Government.”); 11th Cir. Crim. Pattern Jury Instructions, Of-
fense Instruction 75.1 for 18 U.S.C. § 1962(c) (to convict a defend-
ant of a § 1962(c) offense the jury must find beyond a reasonable
doubt that, among other things, the defendant “was associated
with an enterprise” and that the “enterprise was involved in or af-
fected interstate commerce”); 2B Kevin F. O’Malley et al., Federal
Jury Practice & Instructions § 56:03 (6th ed. & Feb. 2024 update)
(instruction for 18 U.S.C. § 1962(c): “In order to sustain its burden
of proof for the crime of participating in the affairs of an interstate
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84 Opinion of the Court 19-10332

enterprise through a pattern of racketeering activity as charged in
Count __ of the indictment, the Government must prove the fol-
lowing five (5) essential elements beyond a reasonable doubt. One:
An enterprise, as described in the indictment, existed on or about
the time alleged in the indictment . . . .”). Dr. de la Cruz’s testi-
mony was relevant.
In his partial dissent, Judge Brasher suggests that Dr. de la
Cruz’s testimony regarding the typical characteristics of criminal
enterprises impermissibly went to a question of law—the definition
of the statutory term enterprise under RICO. We disagree. Just
because an element of an offense has a legal definition (or pre-
scribed legal parameters) does not mean that it is transformed into
a question of law. For example, the terms actual and constructive
possession have legal definitions, but in a narcotics prosecution un-
der 21 U.S.C. § 841(a)(1) the jury must decide, as a factual matter,
whether the defendant possessed a controlled substance. See, e.g.,
United States v. Woodward, 531 F.3d 1352, 1360–61 (11th Cir. 2008).
Similarly, the term scheme to defraud has a legal definition, but in
a prosecution for mail fraud under 18 U.S.C. § 1341 it is the jury
which must determine, as a factual matter, whether the defendant
engaged in a scheme to defraud. See, e.g., United States v. Giarratano,
622 F.2d 153, 155–56 (5th Cir. 1980). Indeed, as described above,
courts around the country allow testimony regarding gangs in
RICO cases. See, e.g., Portillo, 969 F.3d at 169; Kamahele, 748 F.3d at
999; Ledbetter, 929 F.3d at 349.
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19-10332 Opinion of the Court 85

Dr. de la Cruz was therefore entitled to testify regarding
what he believed to be the typical characteristics of a gang or crim-
inal enterprise. And even if the district court could have permissi-
bly excluded some of Dr. de la Cruz’s opinions, wholesale exclu-
sion of the testimony regarding gang characteristics was an abuse
of discretion, especially given the government’s extensive testi-
mony on this very issue.
3. 18 U.S.C. § 1962(d) AND ENTERPRISE EVIDENCE
We pause for a moment here to note that several circuits
have held that the existence of an enterprise is not an element of a
§ 1962(d) conspiracy. See, e.g., United States v. Rich, 14 F.4th 489, 492–
94 (6th Cir. 2021) (citing similar cases from the Second, Ninth, and
Tenth Circuits). But others have come to a diﬀerent conclusion.
See, e.g., United States v. Olson, 450 F.3d 655, 663–64 (7th Cir. 2006).
Some of our decisions suggest the that the existence of an
enterprise is not an element of a § 1962(d) oﬀense. See, e.g., United
States v. Starret, 55 F.3d 1525, 1543 (11th Cir. 1995) (“To establish a
RICO conspiracy violation under 18 U.S.C. § 1962(d), the govern-
ment must prove that the defendants ‘objectively manifested,
through words or actions, an agreement to participate in the con-
duct of the aﬀairs of the enterprise through the commission of two
or more predicate crimes.’”) (citation omitted). But one of our
early cases points in a diﬀerent direction. In Phillips, 664 F.2d at
1011, the panel explained that a substantive RICO violation under
§ 1962(c) has “the following elements: (1) the existence of an en-
terprise which aﬀects interstate or foreign commerce; (2) that the
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86 Opinion of the Court 19-10332

defendant ‘associated with’ the enterprise; (3) that the defendants
participated in the conduct of the enterprise’s aﬀairs; and (4) that
the participation was through a pattern of racketeering activity,
i.e., by committing at least two of the racketeering activity desig-
nated in 18 U.S.C. § 1961(1).” Then the panel stated that “[p]roof
of a RICO conspiracy charge requires that the government prove
the additional element of an agreement.” Id. at 1012 (emphasis
added). By using the word “additional,” the panel in Phillips sug-
gested that the existence of an enterprise—an element of a sub-
stantive RICO violation—is also an element of a RICO conspir-
acy. 24
Our reading of Phillips is supported by other Eleventh Cir-
cuit cases. In United States v. Gonzalez, 921 F.2d 1530, 1546 (11th Cir.
1991), we said that, “[i]n addition to predicate crimes, a RICO con-
spiracy charge requires proof of an enterprise, of the continuing
racketeering activity, and of the defendant’s knowledge of, agree-
ment to, and participation in the conspiracy.” See also United States
v. Weismann, 899 F.2d 1111, 1115–16 (11th Cir. 1990) (reversing
RICO conspiracy conviction under § 1962(d) because the district
court improperly changed the enterprise charged in the indict-
ment); United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990) (“The
issues are as follows: (1) whether the government presented

24 As a Unit B decision of the Former Fifth Circuit, Phillips constitutes binding
precedent under Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.
1982).
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19-10332 Opinion of the Court 87

suﬃcient evidence (a) to establish the existence of an enterprise for
the purposes of a RICO conspiracy . . . .”).
We need not deﬁnitively decide today whether the existence
of an enterprise is an element of a RICO conspiracy under
§ 1962(d). First, the government does not raise the issue. Second,
the district court instructed the jury that one of the elements for
the Count 1 RICO conspiracy charge was that “the enterprise was
engaged in, or that its activities aﬀected, interstate or foreign com-
merce.” D.E. 725 at 17–18. As this case was tried, therefore,
whether the DSBF constituted an enterprise was a critical issue for
the charged RICO conspiracy. Cf. Cole v. Arkansas, 333 U.S. 196, 202
(1948) (“To conform to due process of law, petitioners were enti-
tled to have the validity of their convictions appraised on consider-
ation of the case as it was tried and as the issues were determined
in the trial court.”).
4. THE DEFENDANTS’ PROPOSED USE OF DR. DE LA CRUZ
Again, even if it may not have been error for the district
court to exclude some of Dr. de la Cruz’s opinions, it was error to
exclude his testimony as to the Bloods gang and the non-existence
of a criminal enterprise. See United States v. Cohen, 510 F.3d 1114,
1126 (9th Cir. 2007) (“[T]he best way for the district court to have
insured the exclusion of the potentially inadmissible aspects of [the
expert’s] testimony was not to bar him from testifying altogether,
but to sustain the government’s objections to particular questions
likely to elicit inadmissible evidence under the rule.”). The defend-
ants made it known at all times that they intended to use Dr. de la
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88 Opinion of the Court 19-10332

Cruz’s testimony to rebut the criminal enterprise element of the
RICO conspiracy charge. Before trial, for example, Mr. Hayes ex-
plained in response to the government’s motion to exclude Dr. de
la Cruz that his testimony would “help resolve the [g]overnment’s
main theory as to how the [c]odefendants allegedly maintained a
RICO ‘enterprise.’” D.E. 679 at 4. Mr. Hayes acknowledged that
disproving the defendants’ association with the national Bloods
gang would not “automatically disprove whether the [c]odefend-
ants operated a RICO ‘enterprise[,]’” but maintained it would “dis-
prove the [g]overnment’s theory as to what kind of RICO ‘enter-
prise’” they formed. See id. at 3 n.1. The defendants’ legal position
was well founded. See United States v. Rios, 830 F.3d 403, 421 (6th
Cir. 2016) (explaining, in a RICO case involving the Latin Kings
gang, that “[g]ang-aﬃliation evidence may be highly probative of
an individual’s membership in a particular gang, so it ‘has been held
admissible, in cases where the interrelationship between people is
a central issue’”) (citation omitted). During trial, the defendants
again argued that “one of the critical issues in this case is whether
or not this is . . . [a] criminal enterprise, which is what Dr. de la
Cruz is going to testify about.” D.E. 1221 at 65–66. Finally—and
most importantly—Dr. de la Cruz’s proﬀered testimony delivered
as promised. See, e.g., id. at 108 (“This particular group does not
meet one of the elements of a criminal enterprise, in my opin-
ion.”).
The government defends the district court’s wholesale ex-
clusion of Dr. de la Cruz on one additional ground—it maintains
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that his testimony contravened Supreme Court precedent on what
a RICO enterprise entails. That contention, we think, is mistaken.
The Supreme Court has held that an enterprise must have
“an ascertainable structure beyond that inherent in the pattern of
racketeering activity in which it engages.” Boyle, 556 U.S. at 940–
41. “From the terms of RICO, it is apparent that an association-in-
fact enterprise must have at least three structural features: a pur-
pose, relationships among those associated with the enterprise, and
longevity suﬃcient to permit these associates to pursue the enter-
prise’s purpose.” Id. at 946.
As summarized earlier, Dr. de la Cruz opined in part that the
defendants were not a gang because (1) they were a “bunch of ya-
hoos running around . . . breaking the law with no sense of direc-
tion, with no leadership direction,” (2) they used drugs, which was
inconsistent with the behavior of those in criminal enterprises, (3)
they did not get together for meetings to discuss the organization’s
business, (4) they were “shooting each other indiscriminately,” and
(5) they did not kill rivals. This aspect of his testimony would have
gone to the existence and purpose of the alleged enterprise and the
relationships among those associated with it, two of the structural
features identiﬁed by the Supreme Court in Boyle. See United States
v. Daly, 842 F.2d 1380, 1388–89 (2d Cir. 1988) (explaining that, had
an objection been made to a qualiﬁed expert’s testimony on “the
existence of a RICO enterprise”—based on an “understanding of
the existence of organized crime and the Gambino family”—it
would not “have been sustain[ed] under Rules 702, 703, and 704”).
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The government may think that Dr. de la Cruz’s testimony was not
credible or persuasive, but ultimate acceptance by the jury is not
the standard for admissibility under Rule 702.
D. PREJUDICE
We now turn to whether the wholesale exclusion of Dr. de
la Cruz’s expert testimony was prejudicial. In cases of non-consti-
tutional error where, as here, a party has preserved an objection,
the government bears the burden of demonstrating that the error
is harmless. See United States v. Davila, 569 U.S. 597, 607 (2013);
United States v. Pon, 963 F.3d 1207, 1227 (11th Cir. 2020). A “non-
constitutional error is harmless if, viewing the proceedings in their
entirety, a court determines that the error did not affect the verdict,
‘or had but very slight effect[.]’ If one can say ‘with fair assurance
. . . that the judgment was not substantially swayed by the error,’
the judgment is due to be affirmed even though there was error.”
United States v. Hornaday, 392 F.3d 1306, 1315–16 (11th Cir. 2004)
(citations omitted).
The government has failed to argue that the exclusion of Dr.
de la Cruz was harmless error. Because its brief does not address
harmlessness, the government has failed to carry its burden. See
Davila, 569 U.S. at 607. But under our precedent that is not neces-
sarily the end of the matter.
We have the discretion to sua sponte determine whether an
error is harmless. See Horsley v. State of Alabama, 45 F.3d 1486, 1492
n.10 (11th Cir. 1995) (citing United States v. Giovannetti, 928 F.2d
225, 227 (7th Cir. 1991)). “But that discretion is not an obligation.”
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Harris v. Lincoln Nat’l Life Ins. Co., 42 F.4th 1292, 1298 (11th Cir.
2022). We have chosen to exercise that discretion where, for ex-
ample, the harmlessness was “patently obvious.” United States v.
Adams, 1 F.3d 1566, 1576 (11th Cir. 1993). And we have recently
held that issues not raised by a party can be considered sua sponte
by the court only in “extraordinary circumstances.” United States v.
Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc).
The Seventh Circuit considers three factors, as set out in Gio-
vannetti, when deciding whether to exercise its sua sponte discre-
tion: (1) “the length and complexity of the record”; (2) “whether
the harmlessness of the error or errors found is certain or debata-
ble”; and (3) “whether a reversal will result in protracted, costly,
and ultimately futile proceedings in the district court.” Giovannetti,
928 F.2d at 227. The Giovannetti factors are relied on by other cir-
cuits. See, e.g., United States v. Pryce, 938 F.2d 1343, 1348 (D.C. Cir.
1991). We too find the Giovannetti factors helpful, but do not con-
fine ourselves to them. See Campbell, 26 F.4th at 873.
Nothing about this case—and this issue in particular—is
amenable to a sua sponte review for harmlessness.
First, the record is long and complex. This is an appeal by
10 defendants from a 38-day trial on a 23-count indictment. The
trial transcript is nearly 8,000 pages long, and the exhibit pages
number in the thousands. To determine the effect of the exclusion
of Dr. de la Cruz on the six defendants convicted of the RICO con-
spiracy charge, we would have to sift through the voluminous rec-
ord to contrast the strength of the government’s case with that of
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92 Opinion of the Court 19-10332

the defendants had Dr. de la Cruz’s testimony been allowed—a
task not generally befitting of an appellate court. See Pryce, 938 F.2d
at 1348 (“[An appellate] court should normally conduct the harm-
less error inquiry on its own initiative only where the relevant por-
tions of the record are reasonably short and straightforward.”). We
have declined to scour the record to plug gaps in the defendants’
briefing, see Part IV.F, and do the same here.
Second, the harmlessness of the error is far from certain. In
fact, we have serious doubts that the wholesale exclusion of Dr. de
la Cruz was harmless. Time and again, courts (including ours) have
held that when a defendant’s expert was wrongfully excluded, and
that expert sought to rebut the government’s own expert on a cen-
tral issue (e.g., an element of the offense), the error was prejudicial.
See, e.g., Lankford, 955 F.2d at 1552–53 (“Although [Mr.] Lankford
did state that he believed the $1500 check did not need to be re-
ported [to the IRS], the district court did not allow him to present
evidence to the jury to explain why that belief would have been
reasonable. The government, however, was allowed to pose a hy-
pothetical question to a tax preparer concerning whether the
proper course of conduct should have been to report the $1500 as
income. Given the possible construction of the facts by the jury
and given the defense’s inability to present expert testimony to re-
but the expert opinion elicited by the government, we simply can-
not conclude that the trial court’s error was harmless.”); United
States v. Diallo, 40 F.3d 32, 35 (2d Cir. 1994) (“It is noteworthy that
the government was permitted to call its own expert (a DEA agent)
to establish an economic motive for [Mr.] Diallo to smuggle
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19-10332 Opinion of the Court 93

heroin. [Mr.] Diallo’s expert (a commodities analyst), in turn,
would have shown an economic motive to smuggle gold. Having
allowed the government to call as an expert a DEA agent, who was
surely no more qualified as an expert in heroin than [Mr. Diallo’s
expert] was in gold, the district court should have accorded the de-
fendant the same right. Turnabout is fair play, even in the federal
courts.”); Cohen, 510 F.3d at 1127 (holding that it was prejudicial
error to exclude the defendant’s expert, who was to explain that
the defendant’s mental disorder may have affected “his ability to
form the requisite mens rea”).
Here the district court prohibited Dr. de la Cruz from testi-
fying that the DSBF was not a criminal gang and that, as a result,
there was no RICO enterprise. His testimony would have helped
the defendants counter the testimony—including the lay opin-
ions—presented by government witnesses like Agent Mayo, Sgt.
Kelly, Agent Perez, Mr. Grimes, and Mr. Coakley. See Word, 129
F.3d at 1212–13.
Third, we understand that reversal on this issue might lead
to costly and lengthy proceedings if the government chooses to re-
try the six defendants on Count 1. But we cannot say with certainty
that the result of a new trial would be a foregone conclusion. A
jury, for example, may find some of Dr. de la Cruz’s opinions suf-
ficiently persuasive to create reasonable doubt.
We do not vacate convictions in cases like this one lightly.
And we appreciate the immense undertaking required of all parties
to bring this case to trial, and acknowledge that it would be equally
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94 Opinion of the Court 19-10332

or even more burdensome to do it again years later. But para-
mount to our sensitivity for the government’s limited resources
and the district court’s docket is our duty to ensure that the defend-
ants receive a fair trial. See Taylor v. Illinois, 484 U.S. 400, 408 (1988)
(“Few rights are more fundamental than that of an accused to pre-
sent witnesses in his own defense. Indeed, this right is an essential
attribute of the adversary system itself.”) (citation omitted).
Accordingly, we vacate the Count 1 convictions of Mr. Gra-
ham, Mr. Glass, Jerimaine Bryant, Mr. Walker, Curtis Bryant, and
Mr. Hayes, as well as their sentences. If the government decides
not to retry them on Count 1, these defendants will need to be re-
sentenced. See United States v. Klopf, 423 F.3d 1228, 1245 (11th Cir.
2005) (discussing the “sentencing package” doctrine and the need
for resentencing when one of the components has been set aside).
VI. THE JURY INSTRUCTIONS
We now turn to the challenges to the jury instructions by
Messrs. Jones, Rodriguez, and Glass. None of them objected to the
jury instructions below and none contest that their claims are sub-
ject to plain error review. 25

25 The defendants objected to the instruction for Count 1 but not on the

ground they now raise on appeal. See United States v. Sentovich, 677 F.2d 834,
837 (11th Cir. 1982) (“A party not raising an argument below waives his right
to raise it on appeal absent plain error.”). Accordingly, their present challenge
to the instruction for Count 1 was not properly preserved. See United States v.
Wheeler, 540 F.3d 683, 689 (2d Cir. 2008) (“Because Wheeler did not explain to
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“Jury instructions will not be reversed for plain error unless
the charge, considered as a whole, is so clearly erroneous as to re-
sult in a likelihood of a grave miscarriage of justice, or the error
seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings.” United States v. Pepe, 747 F.2d 632, 675 (11th Cir.
1984) (citation and internal quotation marks omitted). If a defend-
ant demonstrates plain error, we have the discretion to correct the
error if it seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings. See Rosales-Mireles, 585 U.S. at 135.
A. COUNT 1
Mr. Glass contests the district court’s instruction on Count
1, the RICO conspiracy charge. He points out that the instruction
required only that the jury agree on the type of racketeering activ-
ity that the defendants agreed to commit. As a result, it violated
due process by permitting the jury to convict him without unani-
mously agreeing on which two specific acts of racketeering he com-
mitted. 26
Mr. Glass relies primarily on Richardson v. United States, 526
U.S. 813, 818–20 (1999). In that case the Supreme Court held that,
for a conviction for the offense of engaging in a continuing criminal
enterprise in violation of 21 U.S.C. § 848, “a jury has to agree

the district court the objection he raises on appeal, he has not preserved it.
Thus, we review his claim for plain error.”) (citations omitted).
26 Although we have set aside the Count 1 convictions, we address this issue

in case there is a retrial.
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96 Opinion of the Court 19-10332

unanimously about which specific violations make up the ‘contin-
uing series of violations’” of the charge. Id. at 815. We have not
yet decided in a published opinion whether to extend the holding
in Richardson to the RICO context. See United States v. Hein, 395 F.
App’x 652, 655–56 (11th Cir. 2010) (declining to address the issue).
As far as we can tell, however, every circuit to confront the issue
after Richardson “has concluded that for a RICO conspiracy charge
the jury need only be unanimous as to the types of racketeering
acts that the defendants agreed to commit.” United States v. Cornell,
780 F.3d 616, 625 (4th Cir. 2015). See also Rios, 830 F.3d at 434 (con-
cluding that a unanimity instruction was not required); United
States v. Randall, 661 F.3d 1291, 1297 (10th Cir. 2011) (agreeing “that
it is not necessary to prove the specific predicate acts that supported
a RICO conspiracy charge in order to prove a defendant’s partici-
pation in a RICO conspiracy”); United States v. Applins, 637 F.3d 59,
80–82 (2d Cir. 2011) (same). Cf. United States v. Glecier, 923 F.2d 496,
500 (7th Cir. 1991) (same but pre-Richardson).
Assuming without deciding that the district court erred, we
hold that Mr. Glass cannot show that the alleged error was “plain”
because there is no Eleventh Circuit precedent on point and be-
cause the weight of authority in other circuits is adverse to him.
See Hesser, 800 F.3d at 1325 (“‘Plain’ error means that the legal rule
is clearly established at the time the case is reviewed on direct ap-
peal.”). Accordingly, his challenge to the instruction for Count 1
fails.
B. COUNT 2
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Mr. Jones takes issue with the district court’s failure to in-
struct the jury on Count 2—the narcotics conspiracy charge—that
the government was required to prove his guilt with post-juvenile
conspiracy activity or, alternatively, that he had to ratify his partic-
ipation in the conspiracy after he turned 18.
Mr. Jones’ argument is foreclosed by our precedent. In
United States v. Cruz, 805 F.2d 1464, 1475–76 (11th Cir. 1986), we
held that the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C.
§ 5031 et seq., does not require a limiting instruction concerning
juvenile conduct where a defendant’s participation in the charged
conspiracy continues past his 18th birthday. See also United States v.
Newton, 44 F.3d 913, 919 & n.8 (11th Cir. 1994) (stating that the dis-
trict court’s charge to the jury “that they could find [the defendant]
guilty only for acts that he committed after his eighteenth birth-
day” appeared to be a “benefit . . . to which he was not entitled”).
Accord United States v. Camez, 839 F.3d 871, 876 (9th Cir. 2016) (fa-
vorably citing Cruz for the proposition that the FJDA does not re-
quire a special jury instruction); United States v. Doerr, 886 F.2d 944,
969 (7th Cir. 1989) (same).
There was no error, plain or otherwise. As we explain later,
Mr. Jones ratified his participation in the narcotics conspiracy after
his 18th birthday by selling marijuana for Mr. Glass. See, e.g., D.E.
1208 at 207. No jury instruction on juvenile conduct was required.
C. COUNT 10
Mr. Rodriguez claims that the district court committed plain
error when it instructed the jury on the offense of possession of a
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98 Opinion of the Court 19-10332

firearm in furtherance of a drug-trafficking crime (Count 10) and
aiding and abetting possession of a firearm in furtherance of that
crime. In his view, the juxtaposition of those instructions confused
the jury and caused it to speculate as to what species of knowledge
was required to convict him because of the respective crimes’ dif-
ferent knowledge elements; the substantive possession instruction
required “knowledge of the firearm’s presence,” while the aiding
and abetting instruction required “advance knowledge that an-
other participant would possess a firearm.” See D.E. 725 at 40–41.
There was no plain error.
Count 10 charged Mr. Rodriguez (and Mr. Ingram) with a
substantive violation of 18 U.S.C. § 924(c) on May 6, 2016, and in-
cluded a citation to 18 U.S.C. § 2, the aiding and abetting statute.
See D.E. 193 at 15–16. Mr. Rodriguez concedes that both instruc-
tions—the § 924(c) instruction and the aiding and abetting instruc-
tion—were independently “correct[ ].” See M. Rodriguez Br. at 47.
And he is right. See, e.g., Rosemond, 572 U.S. at 78 (holding that
aiding and abetting liability under § 924(c) requires “advance
knowledge”). We do not see how the district court could have
plainly erred by providing separate and independently correct in-
structions for the two distinct forms of liability charged in Count
10.
We note, as well, that Mr. Rodriguez’s jury confusion argu-
ment is not persuasive. Count 23, like Count 10, charged Mr. Ro-
driguez (and Mr. Ingram) with a separate § 924(c) violation on May
9, 2017, and it too included a citation to § 2. See D.E. 193 at 25.
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Though the jury instructions for Count 23 were the same as for
Count 10, the jury acquitted Mr. Rodriguez and Mr. Ingram on
Count 23.
VII. SUFFICIENCY OF THE EVIDENCE
Multiple defendants challenge the sufficiency of the evi-
dence on some of their convictions. “We review de novo the suffi-
ciency of evidence.” United States v. Dixon, 901 F.3d 1322, 1335
(11th Cir. 2018) (citation omitted). The relevant question is
whether, viewing the evidence in the light most favorable to the
government, “any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Significantly, the evidence “need
not exclude every reasonable hypothesis of innocence for a reason-
able jury to find guilt beyond a reasonable doubt.” United States v.
Kincherlow, 88 F.4th 897, 904 (11th Cir. 2023).
A. COUNT 1
Mr. Graham, Mr. Walker, and Jerimaine Bryant challenge
the sufficiency of the evidence on Count 1, which charged them
with a RICO conspiracy in violation of 18 U.S.C. §1962(d). The
indictment alleged an illegal enterprise (the DSBF) implemented
through criminal activities like “drug trafficking, provision of fire-
arms to prohibited persons, illegal gambling, fraud, money laun-
dering, robbery, assault, and murder.” D.E. 193 at 5. 27

27 We address the Count 1 sufficiency issues because, if the defendants are cor-

rect, double jeopardy will bar their retrial on the RICO conspiracy charge. See
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100 Opinion of the Court 19-10332

1. BACKGROUND
“A RICO conspiracy differs from an ordinary conspiracy in
two respects: it need not embrace an overt act, and it is broader and
may encompass a greater variety of conduct.” Pepe, 747 F.2d at 659
(footnotes omitted). The “touchstone of liability” under § 1962(d)
is an agreement to participate in a RICO conspiracy. See Browne,
505 F.3d at 1264. The government may prove such an agreement
by showing either (1) “an agreement on an overall objective of the
conspiracy,” or (2) “that a defendant agreed to commit personally
two predicate acts, thereby agreeing to participate in a ‘single ob-
jective.’” Id. “If the government can prove an agreement on an
overall objective, it need not prove a defendant personally agreed
to commit two predicate acts.” United States v. Abbell, 271 F.3d
1286, 1299 (11th Cir. 2001).
The government may establish an overall objective “by cir-
cumstantial evidence showing that each defendant must neces-
sarily have known that others were also conspiring to participate
in the same enterprise through a pattern of racketeering activity.”
United States v. Gonzalez, 921 F.2d 1530, 1540 (11th Cir. 1991) (cita-
tion and internal quotation marks omitted). And under either the-
ory described above, “the government does not have to establish
that each conspirator explicitly agreed with every other conspirator
to commit the substantive RICO crime described in the indictment,

United States v. Blizzard, 674 F.2d 1382, 1386 (11th Cir. 1982) (“The double jeop-
ardy clause does preclude a second trial once a reviewing court has determined
that the evidence introduced at trial was insufficient to sustain the verdict.”).
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or knew his fellow conspirators, or was aware of all the details of
the conspiracy.” Pepe, 747 F.2d at 659. “That each conspirator may
have contemplated participating in different and unrelated crimes
is irrelevant.” Id. at 659–60.
2. THE EVIDENCE
There was sufficient evidence from which the jury could
find that Mr. Graham. Mr. Walker, and Jerimaine Bryant agreed to
participate in a criminal enterprise, the DSBF, through a pattern of
racketeering activity. See Starrett, 55 F.3d at 1547.
The indictment alleged that the DSBF’s overall objective
“was to generate money for its members and associates.” See D.E.
193 at 5. The defendants operated out of a defined territory, the
South Gwen Cherry complex, and used violence to control their
turf. Outsiders were not tolerated. Mr. Johnson was just one ex-
ample of an unfortunate outsider who, after a perceived attempt to
encroach on DSBF turf, was murdered (by Mr. Glass). The group
also had a loose hierarchical structure, with Ike Johnson as its
founder in the early 2000s and Mr. Glass succeeding him around
2012. Members of the DSBF sold drugs or acted as lookouts or
gunmen, while others supplied the organization with drugs and
firearms. And some of the same members who worked the streets
together regularly engaged in robberies to further enrich them-
selves; they stole cars and robbed random victims or rival dealers.
For the organization, making money was the primary objective.
Jerimaine Bryant challenges the existence of a criminal en-
terprise. Again, we need not decide whether the existence of an
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102 Opinion of the Court 19-10332

enterprise is an element of a § 1962(d) conspiracy. See Part V.C.
The evidence summarized above allowed the jury to find a RICO
enterprise. An “enterprise” includes an association-in-fact, defined
as having “a purpose, relationships among those associated with
the enterprise, and longevity sufficient to permit these associations
to pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946. Our
sister circuits have held that a criminal gang like the DSBF, whose
purpose is to make money by selling drugs, perpetrating robberies,
and/or committing murders, can and does constitute a RICO en-
terprise. See generally 18 U.S.C. § 1961(1) (racketeering activity in-
cludes murder, robbery, and controlled substance offenses prohib-
ited by state law and punishable by imprisonment for more than
one year). We find their decisions persuasive and follow them. See,
e.g., Harris, 695 F.3d at 1136; United States v. Cornell, 780 F.3d 616,
621–23 (4th Cir. 2015); United States v. Brown, 973 F.3d 667, 682–83
(7th Cir. 2020); United States v. Applins, 637 F.3d 59, 77–78 (2d Cir.
2011); United States v. Jones, 873 F.3d 482, 489–91 (5th Cir. 2017);
United States v. Rodríguez-Torres, 939 F.3d 16, 24–27 (1st Cir. 2019).
Jerimaine Bryant’s only remaining sufficiency argument is
that he had withdrawn from the DSBF following his release from
prison in 2011. His elevated role in the gang before then is uncon-
tested.
Viewing the evidence in the light most favorable to the gov-
ernment, the jury could find that Jerimaine Bryant continued to
operate in concert with the overall objective of the RICO conspir-
acy after his release from prison. For one, he was a prominent
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supplier for Mr. Glass. See United States v. Russo, 796 F.2d 1443,
1460–61 (11th Cir. 1986) (evidence that the defendant was a “main
supplier of drugs” to the organization was “more than sufficient to
support his RICO conspiracy conviction”). He also continued to
endorse the DSBF on social media. In 2013, for instance, he identi-
fied himself as a “Smackville top smacker,” which meant a senior
member of the DSBF. In 2014, he mourned the death of a fallen
DSBF member. And in 2015, he posted a “shout out” to “[his]
Blood, [his] gang . . . ya know what we Bleed #GMT.” Addition-
ally, the jury returned guilty verdicts against him on three post-
2011 narcotics charges—possession of controlled substances with
intent to distribute (Counts 5, 12, and 21)—that could serve as pred-
icate acts. The government’s evidence therefore was sufficient to
support Jerimaine Bryant’s conviction for the RICO conspiracy.
See Browne, 505 F.3d at 1264.
As for Messrs. Graham and Walker, they were on the front
lines generating money for the DSBF. Both were “servers” who
sold crack cocaine and marijuana for Mr. Glass. Ms. Houser, Mr.
Coakley, and Donzell Jones all testified to that effect. According to
Mr. Coakley, Messrs. Graham and Walker also acted as lookouts,
and Mr. Graham participated with him in robberies. Messrs. Gra-
ham and Walker even exchanged text messages about narcotics
transactions.
In response to this evidence, Messrs. Graham and Walker
posit that they were merely independent drug dealers with a fleet-
ing association with the DSBF. See United States v. Achey, 943 F.3d
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104 Opinion of the Court 19-10332

909, 917 (11th Cir. 2019) (“[A] simple buyer-seller controlled sub-
stance transaction does not, by itself, form a conspiracy.”); United
States v. Mercer, 165 F.3d 1331, 1333–35 (11th Cir. 1999) (an agree-
ment to the mere “exchange of drugs for money” is “not probative
of an agreement to join together to accomplish a criminal objective
beyond that already being accomplished by the transaction”). Mr.
Graham, for example, refers to a series of social media posts where
he repeated certain statements (“I don’t work for nobody. I do my
own shit.”) as evidence of his independence from the organization.
But the jury heard contrary testimony, as described above, and was
free to disregard Mr. Graham’s statements of independence. See id.
at 1335 (“[W]e have held that an agreement may be inferred when
the evidence shows a continuing relationship that results in the re-
peated transfer of illegal drugs to the purchaser.”).
Messrs. Graham and Walker also point to a text message be-
tween them from 2016 as evincing their unease with continuing to
sell drugs for Mr. Glass. See D.E. 1217 at 20 (“I’m about to just tell
em bra. I’m even feel like dealing with this crack no more.”). Far
from helping their cause, however, this message is an admission
that they were in fact “servers” for the DSBF and does nothing to
erase their prior conduct. See Achey, 943 F.3d at 917 (“[A] conspir-
acy can be found if the evidence allows an inference that the buyer
and seller knew the drugs were for distribution instead of merely
understanding their transactions to do no more than support the
buyer’s personal drug habit.”) (citation and internal quotation
marks omitted). Nor do they point to any evidence that, like
Donzell Jones, they were allowed to sell drugs with the DSBF in
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the South Gwen Cherry complex based on a longtime friendship
with Mr. Glass, rather than as members of the organization. Ac-
cordingly, the government presented sufficient evidence to estab-
lish that Messrs. Graham and Walker agreed to advance the con-
spiracy’s overall objective of generating money for the DSBF and
its members.
B. COUNT 2
Jerimaine Bryant, along with Messrs. Rodriguez, Ingram,
and Jones, challenge the sufficiency of the evidence to support their
convictions on Count 2, which charged them with conspiracy to
possess 280 grams or more of crack cocaine and marijuana with the
intent to distribute, in violation of 21 U.S.C. § 846. We find the
evidence sufficient for all four defendants.
1. SINGLE CONSPIRACY
To establish a narcotics conspiracy under § 846, the govern-
ment must prove that (1) there was a conspiracy or agreement to
possess a controlled substance with the intent to distribute it,
(2) the defendants knew the essential unlawful objects of the con-
spiracy, and (3) the defendants knowingly and voluntarily joined
the conspiracy. See United States v. Duldulao, 87 F.4th 1239, 1253–
54 (11th Cir. 2023); Dixon, 901 F.3d at 1335. Proof of an overt act is
not required. See Shabani, 513 U.S. at 11.
When the government seeks to prove a single overarching
conspiracy, it may rely on evidence such as “whether a common
goal existed [among the conspirators],” “the nature of the underly-
ing scheme,” and “the overlap of participants.” Dixon, 901 F.3d at
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106 Opinion of the Court 19-10332

1335 (citation omitted). Importantly, “separate transactions are
not necessarily separate conspiracies, so long as the conspirators act
in concert to further a common goal. If a defendant’s actions facil-
itated the endeavors of other co-conspirators, or facilitated the ven-
ture as a whole, a single conspiracy is established.” Id. (citation
omitted). See also United States v. Russo, 717 F.2d 545, 549 (11th Cir.
1983) (stating that circumstantial evidence may suffice to prove
participation in a conspiracy). Whether a single conspiracy existed
is generally a question of fact for the jury. See United States v. Alred,
144 F.3d 1405, 1414 (11th Cir. 1998).
The government presented sufficient evidence for the jury
to find beyond a reasonable doubt that these four defendants were
part of a single narcotics conspiracy with common goals. Those
common goals were simple: buying and selling crack cocaine and
marijuana for profit in the South Gwen Cherry complex. See United
States v. Richardson, 532 F.3d 1279, 1285 (11th Cir. 2008) (explaining
that “[c]ourts typically define the common goal element as broadly
as possible,” including, for example, “a common goal of buying and
selling cocaine for profit” in a set area, and compiling cases to that
effect) (citation omitted). In furtherance of that goal, the defend-
ants operated a “marketplace” of crack cocaine and marijuana,
complete with sellers, lookouts, and enforcers. See United States v.
Brown, 587 F.3d 1082, 1090 (11th Cir. 2009) (describing a “farmer’s
market” and “marketplace” at the heart of the drug conspiracy);
United States v. Westry, 524 F.3d 1198, 1212–13 (11th Cir. 2008) (ex-
plaining that the defendants were “engag[ed] in a consistent series
of smaller transactions that furthered [the conspiracy’s] ultimate
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19-10332 Opinion of the Court 107

object of supplying the consumer demand of the market,” and the
conspiracy consisted of “various acts of distribution at these several
locations performed by numerous interrelated individuals”). And
the scheme was replete with common players, as observed by law
enforcement and video surveillance and supported by the defend-
ants’ social media posts and text messages. See United States v. Cal-
deron, 127 F.3d 1314, 1327 (11th Cir. 1997) (noting the conspiracy’s
“extensive overlap of the participants”).
2. COMMON GOAL
Jerimaine Bryant disputes his pursuit of a common goal fol-
lowing his 2008 arrest and 2011 release from prison, based largely
on the same argument discussed above—that he had moved out of
South Gwen Cherry to a nearby trailer park where he purported to
sell drugs independently. We reject his argument.
By all accounts, Jerimaine Bryant continued to frequent the
DSBF’s area and mingle with his co-defendants. And he supplanted
Ms. Houser as Mr. Glass’ primary drug supplier. See D.E. 1207 at
22–23, 185; D.E. 1213 at 16, 50–51. This critical role in the DSBF’s
supply chain cemented his inclusion in the conspiracy after his 2011
release from prison.
3. MR. GRIMES’ CREDIBILITY
The same four defendants also assail the credibility of a co-
operating witness, Mr. Grimes, characterizing his testimony as in-
credible, untrustworthy, and uncorroborated. As a general matter,
“[w]e will not disturb the jury’s verdict [with respect to credibility]
unless the testimony is incredible as a matter of law.” United States
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108 Opinion of the Court 19-10332

v. Green, 818 F.3d 1258, 1274 (11th Cir. 2016) (citation and internal
quotation marks omitted). That means that even “the uncorrobo-
rated testimony of an accomplice is sufficient to support a convic-
tion in the federal courts if it is not on its face incredible or other-
wise unsubstantial.” United States v. Iacovetti, 466 F.2d 1147, 1153
(5th Cir. 1972). See also Green, 818 F.3d at 1274 (testimony is not
“incredible as a matter of law unless it is unbelievable on its face,
that is, testimony as to facts that the witness could not have possi-
bly observed or events that could not have occurred under the laws
of nature”) (internal quotations and citation omitted). The defend-
ants fail to satisfy this high bar as to Mr. Grimes.
Mr. Rodriguez is Mr. Grimes’ most ardent challenger, and
understandably so. Without some of Mr. Grimes’ testimony, the
evidence plausibly supported a theory of defense that, for the most
part, Mr. Rodriguez was an independent drug dealer who occasion-
ally mingled with and dealt with DSBF members. Mr. Rodriguez
points out that he is older and that he sold his own drugs, out of his
own home, away from the South Gwen Cherry complex. By one
account he occasionally sold drugs at South Gwen Cherry; by an-
other he never did. Compare D.E. 1205 at 25 (Mr. Grimes) with D.E.
1208 at 161 (Mr. Coakley). The government’s voluminous social
media evidence contained some posts from Mr. Rodriguez declar-
ing his allegiance to the DSBF or associating with other alleged
members, but those posts were relatively few in number. See, e.g.,
Gov’t Exh. 315 at 114–15.
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19-10332 Opinion of the Court 109

Mr. Grimes, however, testified that Mr. Rodriguez oversaw
DSBF initiations, used the DSBF handshake, and provided other
members of the gang with guns. Mr. Coakley corroborated this in
part, testifying that he saw Mr. Rodriguez “[s]ell drugs, supply
guns, and supply dope.” D.E. 1207 at 66–68. Although Mr. Grimes’
testimony was not fully corroborated and the government’s direct
examination involved some leading questions, see, e.g., D.E. 1205
at 25, those matters went to credibility and weight, which were for
the jury to assess. And no one argues, for example, that Mr. Grimes
could not have possibly seen what he testified to. See Green, 818
F.3d at 1274. The jury was therefore entitled to credit his testi-
mony.
As for Mr. Ingram, Mr. Grimes identified him as a “bomb
man” who retrieved the money from buyers, as well as a seller for
the DSBF, and that testimony was echoed by Donzell Jones and
Mr. Coakley. See D.E. 1202 at 75; D.E. 1205 at 20, 23, 25; D.E. 1206
at 166; D.E. 1208 at 209–10. The government also introduced text
messages of others inquiring of Mr. Ingram about drugs, as well as
his drug convictions from the relevant timeframe (which included
one where he was the subject of an undercover drug buy). See D.E.
1202 at 111; D.E. 1211 at 121–23; D.E. 1212 at 208–09; D.E. 1215 at
71–72; D.E. 1221 at 23; D.E. 1223 at 138; D.E. 1224 at 63. With or
without Mr. Grimes’ testimony, sufficient evidence supported Mr.
Ingram’s conviction on Count 2.
4. THE FJDA
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110 Opinion of the Court 19-10332

Mr. Jones raises a final, unique challenge to his conviction
on Count 2. He claims that for a large portion of the alleged con-
spiracy he was a juvenile under the FJDA, 18 U.S.C. § 5301 et seq.,
such that his actions during that period of time were delinquencies
rather than felonies. Absent that conduct, he argues, his post-juve-
nile conduct cannot alone sustain his Count 2 conviction.
Mr. Jones’ argument fails. When, as is the case here, the
government has proven that there was one continuous conspiracy
and the defendant’s membership in that conspiracy straddled his
18th birthday, his juvenile acts can be “the sole basis for guilt.”
Newton, 44 F.3d at 919 (citing Cruz, 805 F.2d at 1464). Mr. Jones
participated in the alleged narcotics conspiracy after his 18th birth-
day by continuing to sell marijuana for Mr. Glass. See D.E. 1208 at
207. See also D.E. 1220 at 55 (“Let me get two bags from dodo”);
D.E. 1221 at 18 (“Me either, but I rather FW the zone cause Dodo
and Mullet got the loud dimes doe for $5. Weed gone live.”). So
the jury could properly consider his juvenile conduct. See Cruz, 805
F.2d at 1475–76. Mr. Jones’ conviction for Count 2 stands. 28
We affirm the convictions of Jerimaine Bryant and Messrs.
Rodriguez, Ingram, and Jones on Count 2.

28 Mr. Ingram, Mr. Graham, and Mr. Walker sought to adopt this particular

argument by Mr. Jones. But whether a defendant’s individual post-juvenile
conduct can sustain a conviction for Count 2 is a fact-specific inquiry that re-
quires independent briefing. See, e.g., United States v. Khoury, 901 F.2d 948, 963
n.13 (11th Cir. 1990). We therefore need not address the FDJA argument for
these defendants.
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19-10332 Opinion of the Court 111

C. COUNT 10
Mr. Rodriguez challenges the sufficiency of evidence for his
conviction on Count 10, possession of a firearm in furtherance of a
drug trafficking crime. See 18 U.S.C. § 924(c). He attempts to rely
on Rosemond, 572 U.S. at 77–78 (holding that, to aid and abet the
offense of using a firearm during a drug trafficking offense, the de-
fendant must know beforehand that one of his co-defendants will
carry a gun), to argue that he lacked the requisite advance
knowledge of Mr. Ingram’s firearm possession. But that argument
is a nonstarter. As the government correctly points out, Mr. Rodri-
guez was convicted of a substantive § 924(c) offense, and not of aid-
ing and abetting someone else’s § 924(c) offense.
In addition, Mr. Rodriguez challenges the evidence that he
possessed a firearm at all. See United States v. Woodard, 531 F.3d
1352, 1362 (11th Cir. 2008) (stating that, to prove a § 924(c) offense,
the government must establish the defendant knowingly possessed
a firearm in furtherance of a drug trafficking crime). As to his own
possession, however, there is no sufficiency problem. Mr. Rodri-
guez admitted that the firearm found at the residence belonged to
him. See Gov. Exh. 110 at 41 (“[The gun is] just for protection, bro.
I, if I need it, I, I use it, yeah, I use it.”); D.E. 833-16 at 9, 29 (“[The
gun] was mine.”). Accordingly, Mr. Rodriguez’s challenge to the
§ 924(c) conviction fails.
D. COUNT 11
Mr. Graham and Curtis Bryant challenge their convictions
on Count 11 for attempted possession of a controlled substance on
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112 Opinion of the Court 19-10332

June 1, 2016, with the intent to distribute, in violation of 21 U.S.C.
§ 846. The indictment alleged that, pursuant to 21 U.S.C. §
841(b)(1)(C), “this violation involved a mixture and substance con-
taining a detectable amount of . . . ‘crack cocaine.’” D.E. 193 at 16.
The defendants argue that, because the evidence at trial showed
only that the controlled buy constituting the charged conduct in-
volved marijuana and not crack cocaine, they were entitled to a
judgment of acquittal.
The government argues that the defendants’ argument is
flawed because a conviction for an inchoate offense under § 846
may rest on any controlled substance. We agree. In United States
v. Achey, 943 F.3d 909, 913–14 (11th Cir. 2019), we explained the
interplay between § 841 and § 846. While § 841(a)(1) makes it a
crime to intentionally distribute a controlled substance, § 846
makes it a crime to conspire or attempt to violate § 841(a)(1), and
§ 841(b)(1) merely provides the penalties for such inchoate viola-
tions. See id.
To establish a conspiracy offense under § 846, the govern-
ment need only prove that a defendant agreed to possess and dis-
tribute what he knew was a controlled substance. See id. “The
specific type of drug involved is not an element of [a conspiracy
offense under] § 841(a) but is instead ‘relevant only for sentencing
purposes.’” Id. (citing United States v. Rutherford, 175 F.3d 899, 906
(11th Cir. 1999)).
We conclude that the same holds true for an attempt under
§ 846, which like conspiracy is an inchoate offense. First,
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impossibility is not a defense to an attempt offense under § 846. See
United States v. Everett, 700 F.2d 900, 904 (3d Cir. 1983). Indeed, we
have upheld a § 846 attempt conviction which was based on a trans-
action involving only sham cocaine. See United States v. McDowell,
705 F.2d 426, 427–28 (11th Cir. 1983). Second, for inchoate § 846
offenses like attempt and conspiracy, “the government need only
prove that the defendant had knowledge that he was dealing with
a controlled substance, not that he had knowledge of the specific
controlled substance.” United States v. Woods, 210 F.3d 70, 77 (1st
Cir. 2000) (conspiracy and attempt).
Absent some sentencing issues that the defendants do not
raise here, see, e.g., Achey, 943 F.3d at 914 n.5, the government did
not have to prove mens rea as to a specific controlled substance at
trial for the § 846 attempt charge. Consequently, there was suffi-
cient evidence to convict Mr. Graham and Curtis Bryant on Count
11.
E. COUNT 22
Messrs. Rodriguez and Ingram attack their convictions on
Count 22, which charged them with possession of a controlled sub-
stance with the intent to distribute on May 9, 2017, in violation of
21 U.S.C. § 841(a)(1). The evidence, however, was sufficient.
To establish a violation of § 841(a)(1), the government has
to prove that the defendant “(1) knowingly (2) possessed [a con-
trolled substance] (3) with intent to distribute it.” United States v.
Harris, 20 F.3d 445, 453 (11th Cir. 1994). Such possession may be
actual or constructive, and constructive possession requires a
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114 Opinion of the Court 19-10332

showing that “a defendant maintained dominion or control over
the drugs or over the premises where the drugs are located.” Id.
Mr. Rodriguez argues that, without the evidence illegally
seized from the residence he shared with Mr. Ingram on May 9,
2017, the government had insufficient evidence to establish his con-
structive possession of the drugs found in the home’s safe. But we
have already concluded that this evidence was not subject to sup-
pression. The government therefore properly introduced the evi-
dence it found in his shared home, including a copy of his birth
certificate, a scale, and a safe containing bulk and individually-pack-
aged drugs (crack cocaine and marijuana) and cash. There was also
his admission during his post-arrest interrogation that the drugs
were his. This evidence soundly established his dominion over the
place where the safe with the drugs was found, as well as his intent
to distribute the drugs inside. Accordingly, there was sufficient ev-
idence to support Mr. Rodriguez’s conviction on Count 22.
The sufficiency challenge by Mr. Ingram fails for the same
reasons. He attempted, and failed, to suppress the evidence seized
from the shared residence. And that search also yielded a copy of
Mr. Ingram’s birth certificate and Social Security card. Although
Mr. Ingram denies that the drugs found in the safe were his, officers
found him in possession of narcotics, and there was evidence (in
the form of testimony and text messages) linking him to the sale of
drugs. See, e.g., D.E. 1208 at 209–10 (Mr. Coakley: “I seen [Mr. In-
gram] serve from Ike era to the time he got arrested. . . . [He] been
serving for a long period of time . . . with [Mr. Rodriguez].”); D.E.
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19-10332 Opinion of the Court 115

1205 at 162 (Mr. Grimes: “I don’t remember the time and the date,
but I seen [Mr. Ingram selling drugs].”); D.E. 1218 at 49 (Mr. Rodri-
guez to Mr. Ingram: “What’s up with the loud for [Mr. Hayes].”).
Consequently, a rational juror could have found Mr. Ingram guilty
of possession of a controlled substance with the intent to distribute
based on the drugs found in the shared residence.
VIII. CUMULATIVE ERROR
As a ﬁnal matter relating to the convictions, Jerimaine Bry-
ant, Curtis Bryant, and Messrs. Rodriguez, Graham, Walker, and
Hayes contend that they are entitled to reversal of their convictions
based on the doctrine of cumulative error. They are not.
“The cumulative error doctrine provides that an aggregation
of non-reversible errors (i.e., plain errors failing to necessitate re-
versal and harmless errors) can yield a denial of the constitutional
right to a fair trial, which calls for reversal.” United States v. Baker,
432 F.3d 1189, 1223 (11th Cir. 2005) (citation and internal quotation
marks omitted), abrogated on other grounds by Davis v. Washington,
547 U.S. 813 (2006). “The harmlessness of cumulative error is de-
termined by conducting the same inquiry as for individual error—
courts look to see whether the defendant’s substantial rights were
aﬀected.” Id. (citing United States v. Rivera, 900 F.2d 1462, 1470 (10th
Cir. 1990) (en banc)). “The cumulative prejudicial eﬀect of many
errors may be greater than the sum of the prejudice caused by each
individual error,” and we consider factors such as: (1) “the nature
and number of the errors committed;” (2) “their interrelationship,
if any, and combined eﬀect;” (3) “how the district court dealt with
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116 Opinion of the Court 19-10332

the errors as they arose (including the eﬃcacy—or lack of eﬃ-
cacy—of any remedial eﬀorts);” (4) “the strength of the govern-
ment’s case[;]” and (5) “the length of trial.” Id. (citations omitted).
There are not, however, any guilt-phase errors to aggregate
unrelated to the Count 1 RICO conspiracy charge. The district
court’s wrongful sequestration of Ms. Bryant could have only been
prejudicial for purposes of the RICO conspiracy, as she was going
to dispute Mr. Coakley’s testimony that Mr. Glass murdered Mr.
Johnson. See D.E. 193 at 6, 8 (indictment charging that the racket-
eering activity included murder). And the exclusion of Dr. de la
Cruz also went to the Count 1 convictions. We are already setting
aside the convictions on Count 1 due to the erroneous exclusion of
Dr. de la Cruz. As for the possible errors in allowing improper Rule
702 opinions by Sgt. Kelly and Agent Perez on a couple of terms,
those opinions were far too insigniﬁcant to have any serious eﬀect
on defendants’ convictions.
IX. SENTENCING
Having concluded our review of the errors alleged by the
defendants before and during trial, we reach the sentencing phase
of the case. As a general matter, we review the application or in-
terpretation of the Sentencing Guidelines de novo and findings of
fact for clear error. See United States v. Grant, 397 F.3d 1330, 1332
29
(11th Cir. 2005).

29 Before beginning our analysis, we note that at times the district court did
not explicitly make specific factual findings that underpin its sentencing
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19-10332 Opinion of the Court 117

A. BASE OFFENSE LEVEL FOR THE RICO CONSPIRACY
We start with Curtis Bryant and Jerimaine Bryant, who chal-
lenge the district court’s calculation of their base oﬀense levels for
their Count 1 RICO convictions. The base oﬀense level for a RICO
violation is 19 or “the oﬀense level applicable to the underlying
racketeering activity,” whichever is greater. See U.S.S.G. § 2E1.1(a).
Here, one of the underlying racketeering oﬀenses was premedi-
tated murder, see D.E. 193 at 6, 8, and the government proved the
murders of Mr. Hallman and Mr. Johnson at trial. See D.E. 1205 at
27–30; D.E. 1206 at 174–77; D.E. 1207 at 30–33, 165–68; D.E. 1213
at 18–22, 43–49. Accordingly, for each defendant the district court
calculated a base oﬀense level of 43 based on the underlying predi-
cate oﬀense of murder, pursuant to U.S.S.G. § 2A1.1. 30
The base oﬀense level for Curtis Bryant stemmed from the
murder of Mr. Hallman. He ﬁrst argues that he did not commit
murder because he was acting in defense of his associate, Anthony
Nixon. Under Florida law, a person is justiﬁed in using deadly force
if he reasonably believes that using such force “is necessary to pre-
vent imminent death or great bodily harm to . . . another[.]” Fla.

decisions. This lack of specific findings is not fatal where, as here, “it is clear
from the record what evidence the court credited in making” its sentencing
decisions. See United States v. Bradley, 644 F.3d 1213, 1293 (11th Cir. 2011).
30 We address the challenges to the Count 1 base offense level in case the mur-
ders of Mr. Hallman and Mr. Johnson are relevant to the resentencing of Cur-
tis Bryant and Jerimaine Bryant and the government chooses not to retry
Count 1.
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118 Opinion of the Court 19-10332

Stat. § 776.012(2) (2021). The determination of whether the force
is justiﬁed is an “objective evaluation” of the conduct of the person
“based on the circumstances as they appeared to [him] at the time
of the altercation[.]” Bouie v. State, 292 So. 3d 471, 481 (Fla. 2d DCA
2020).
The district court’s determination that Curtis Bryant mur-
dered Mr. Hallman is a ﬁnding of fact subject to clear error review.
See United States v. Crawford, 906 F.2d 1531, 1535–36 (11th Cir. 1990)
(district court’s ﬁnding that the defendant attempted to commit
murder constituted a factual ﬁnding reviewed for clear error). Cur-
tis Bryant cannot show that the district court’s ﬁnding constituted
clear error. The parties agree that shortly before Curtis Bryant shot
him, Mr. Hallman had shot (and struck) Mr. Nixon, who was 15
years old at the time. But according to Ms. Houser, Curtis Bryant
did not emerge from his house with a gun in his hand until after
Mr. Hallman had shot Mr. Nixon and ﬂed the scene. Consistent
with this testimony, the medical examiner concluded that Mr. Hall-
man had been shot in the back. Jerimaine Bryant lauded Curtis
Bryant for the shooting, and the following day Curtis Bryant him-
self bragged that Mr. Hallman “didn’t even see it coming.” D.E.
1229 at 145. Given this evidence, the district court did not clearly
err in ﬁnding for purposes of sentencing that Curtis Bryant had
committed murder under Florida law.
Curtis Bryant next argues that he lacked premeditation
when he killed Mr. Hallman. Under Florida law, premeditation
may form “a moment before the act” so long as there is “a suﬃcient
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19-10332 Opinion of the Court 119

length of time to permit reﬂection as to the nature of the act[.]”
Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 464 (11th Cir. 2015)
(quoting Kocaker v. State, 119 So. 3d 1214, 1226 (Fla. 2013)).
“Whether [a] defendant committed or attempted a murder with
premeditation is a question of fact.” United States v. Henry, 106 F.4th
763, 769 (8th Cir. 2024) (citation and internal quotation marks com-
mitted). The district court did not clearly err in ﬁnding that Curtis
Bryant committed premediated murder by emerging from the
house with his gun and shooting Mr. Hallman in the back while he
was ﬂeeing.
Jerimaine Bryant contends that the district court plainly
erred in using U.S.S.G. § 2A1.1(a) to calculate his base oﬀense level
because he did not participate in a murder. It is well established,
however, that a RICO conspirator may be held accountable for his
co-conspirator’s actions if they were reasonably foreseeable and in
furtherance of the conspiracy, even if he did not personally partic-
ipate in those actions. See United States v. Bradley, 644 F.3d 1213,
1297 (11th Cir. 2011). See also U.S.S.G. § 1B1.3(a)(1)(B) (stating that
when an oﬀense involves “jointly undertaken criminal activity,” rel-
evant conduct includes “all acts and omissions of others that were
. . . in furtherance that criminal activity and reasonably foreseeable
in connection with that criminal activity”).
There is no claim by Jerimaine Bryant that Mr. Johnson’s
murder was not reasonably foreseeable or not in furtherance of the
conspiracy. Given Mr. Grimes’ testimony that Jerimaine Bryant
urged Mr. Glass to murder Mr. Johnson, the district court did not
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120 Opinion of the Court 19-10332

plainly err in calculating Jerimaine Bryant’s base oﬀense level for
Count 1 under § 2A1.1(a).
B. DRUG QUANTITY
Curtis Bryant and Messrs. Walker and Graham challenge, on
several grounds, the district court’s sentencing determination that
they were responsible for between 2.8 and 8.4 kilograms of crack
cocaine. As explained below, we ﬁnd no clear error in the district
court’s drug quantity attribution. See United States v. Reeves, 742
F.3d 487, 506 (11th Cir. 2014) (stating that drug quantity attribution
is subject to clear error review). 31

The defendants’ base offense level for Count 2 under the
Sentencing Guidelines rested on drug type and quantity. See
U.S.S.G. § 2D1.1(a)(5), (c). Where, as here, the amount of drugs
seized did not reflect the scale of the narcotics offense, the district
court had to estimate the quantity that was attributable. See Dixon,
901 F.3d at 1349; U.S.S.G. § 2D1.1, cmt. n.5.
“In estimating the quantity, the [district] court may rely on
evidence demonstrating the average frequency and amount of a
defendant’s drug sales over a given period of time.” Reeves, 742
F.3d at 506. “This determination may be based on fair, accurate,
and conservative estimates of the drug quantity attributable to a

31 Numerous other defendants attempt to adopt the challenges of Mr. Walker,

Curtis Bryant, and Mr. Graham to the district court’s drug quantity attribu-
tion. But this is a fact-specific, individualized issue that cannot be adopted
without independent briefing. See, e.g., Khoury, 901 F.2d at 963 n.13.
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19-10332 Opinion of the Court 121

defendant, but it cannot be based on calculations of drug quantities
that are merely speculative.” Id. (alteration adopted) (quoting
United States v. Almedina, 686 F.3d 1312, 1316 (11th Cir. 2012)). The
government bears the burden of proving drug quantity by a pre-
ponderance of the evidence. See id.
The district court’s overall drug quantity finding was not
clearly erroneous. At trial, the government presented evidence
that the Count 2 narcotics conspiracy, as alleged in the indictment,
spanned from 2000 until 2017. Based on the testimony of Mr.
Grimes and Mr. Coakley, the former DSBF members, the gang’s
estimated daily drug sales ranged from 14 to 28 grams of crack co-
caine from 2000 until 2010. After 2010, daily drug sales peaked at
42 grams until mid-2013. Eventually, drug sales dwindled to seven
grams per week by 2016.
Taking the lowest estimated figures for daily sales based on
this testimony, the DSBF sold at least five kilograms of crack co-
caine per year from 2000 through mid-2013, and 364 grams per year
in the less successful period that followed. And it sold the drugs
out of a common location, the South Gwen Cherry complex, ren-
dering the group’s total sales foreseeable to Curtis Bryant and
Messrs. Walker and Graham, all of whom participated in and were
members of the drug conspiracy. On this record, the district
court’s overall finding of between 2.8 and 8.4 kilograms of crack
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122 Opinion of the Court 19-10332

cocaine did not constitute clear error. See Almedina, 686 F.3d at
1315. 32
The defendants next challenge the district court’s calcula-
tion by focusing on the timing of their affiliation with the DSBF.
We discuss each one separately.
Reasonable foreseeability is not enough to attribute a quan-
tity of drugs to a defendant who was a member of a narcotics con-
spiracy. In “the case of a jointly undertaken criminal activity,” a
defendant is responsible for “all acts and omissions of others that
were (i) within the scope of the jointly undertaken criminal activ-
ity, (ii) in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity.” U.S.S.G. §
1B1.3(a)(1)(B). See United States v. Reese, 67 F.3d 902, 907 (11th Cir.
1995) (“[D]efendants are only accountable for other conduct that
was reasonably foreseeable and within the scope of the criminal ac-
tivity that the defendant agreed to undertake.”).
Mr. Walker argues that his “involvement began with his ar-
rest on January 30, 2015, and concluded with the return of the in-
dictment on May 5, 2017,” such that he was only accountable for
824 grams of crack cocaine. See M. Walker Reply Br. at 25. The
government, however, established by a preponderance of the

32 At 14 grams per day over 365 days, the estimated per-year sum from 2000

through mid-2013 was 5.1 kilograms, or over 60 kilograms in total for that
period. At seven grams per week over 52 weeks, the estimated per-year total
from mid-2013 to 2017 was 364 grams, or over one kilogram in total. The
district court’s calculation was well below these numbers.
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19-10332 Opinion of the Court 123

evidence that Mr. Walker joined the conspiracy as early as July of
2012, when he began self-identifying with the DSBF on social me-
dia. He downplays this self-identification as “innocuous expres-
sions,” see id. at 24, but outsiders were subject to violence for falsely
claiming membership. And he cannot fault the district court’s con-
sideration of the testimony from Mr. Coakley and Mr. Grimes, as
it “was entitled to rely on the cooperators’ testimony.” Dixon, 901
F.3d at 1349.
Holding Mr. Walker accountable for at least 2.8 kilograms
of crack cocaine was not clearly erroneous. During the first several
years that he was associated with DSBF, a conservative estimate of
the group’s total sales was over five kilograms per year.
Curtis Bryant asserts that he should not be held accountable
for crack cocaine sold during the three years he spent in prison after
joining the DSBF in 2010. The evidence, however, showed that he
joined the narcotics conspiracy as early as 2010 and, other than his
self-serving assertion to the contrary, he provided no evidence to
establish that he withdrew from the conspiracy when he went to
prison.
For purposes of the Sentencing Guidelines, a defendant gen-
erally has the burden of proving his affirmative withdrawal from a
conspiracy. See United States v. Young, 39 F.3d 1561, 1570 (11th Cir.
1994) (discussing a defendant’s contention of withdrawal before the
Sentencing Guidelines went into effect). “Neither arrest nor incar-
ceration automatically triggers withdrawal from a conspiracy,”
Richardson, 532 F.3d at 1285 n.1 (citation omitted), and the district
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124 Opinion of the Court 19-10332

court explained as much: “The fact that [Curtis Bryant was] in jail
doesn’t mean he’s not part of the conspiracy.” D.E. 1252 at 18. See
also United States v. Dabbs, 134 F.3d 1071, 1083 (11th Cir. 1998)
(holding that a defendant was accountable at sentencing for losses
within the scope of the conspiracy because he did not establish his
withdrawal).
In response, Curtis Bryant counters that the district court
“never made individualized findings.” C. Bryant Reply Br. at 18.
But it expressly overruled his objection, which mirrored the pre-
sent argument on appeal, and found that the amount attributable
to him was “conservatively estimated.” D.E. 1252 at 19, 27. We
see no clear error in its finding. See United States v. $242,484.00, 389
F.3d 1149, 1154 (11th Cir. 2004) (en banc) (“[W]e and other federal
appellate courts have inferred from a district court’s explicit factual
findings and conclusion implied factual findings that are consistent
with its judgment although unstated.”).
Mr. Graham contends that his involvement spanned from
2012 until 2017, and therefore he was only theoretically responsible
for 2.4 kilograms of crack cocaine. This timespan, he posits,
equated to 29% of the conspiracy’s duration, such that he should
only be held responsible for 29% of the total amount the court at-
tributed to him. His argument misses the mark.
For starters, the DSBF’s yearly sales from 2012 to 2017 were
variable and not static, so a raw, percentage-based calculation
((time involved in the conspiracy ÷ the total length of the conspir-
acy) x total drug quantity) does not accurately represent the
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19-10332 Opinion of the Court 125

amount sold over a given timeframe. And for at least the first year
and a half of Mr. Graham’s professed involvement, the government
established by a preponderance of the evidence that the sales ex-
ceeded five kilograms per year, easily satisfying the amount the dis-
trict court attributed to him. The district court did not clearly err
in finding Mr. Graham responsible for between 2.8 and 8.4 kilo-
grams of crack cocaine.
C. POSSESSION OF A FIREARM
Messrs. Walker and Graham contend that the district court
erred in applying a two-level enhancement for possession of a ﬁre-
arm in connection with a narcotics oﬀense. See U.S.S.G. §
2D1.1(b)(1). They argue, in part, that the enhancement should not
apply because the evidence was insuﬃcient to show that they per-
sonally possessed a ﬁrearm. 33

33 Messrs. Walker and Graham note that the jury acquitted them of their sub-

stantive charges of possession of a firearm in furtherance of a drug trafficking
crime, but acknowledge that, under our precedent, a district court may con-
sider acquitted conduct in calculating their sentences. See United States v.
Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006). They nevertheless raise the
issue to preserve it for appeal. Because “[o]ne panel of this Circuit cannot
overrule another panel’s decision,” United States v. Rushin, 844 F.3d 933, 942
(11th Cir. 2016) (citation omitted), we reject the defendants’ acquitted-conduct
argument.
In closing, we note that the Sentencing Commission has enacted an amend-
ment to U.S.S.G. § 1B1.3 that limits the use of “acquitted conduct” at sentenc-
ing. See U.S. Sentencing Commission Adopted Amendments to the Sentenc-
ing Guidelines (Apr. 17, 2024). The amendment will go into effect on Novem-
ber 1, 2024, unless Congress disapproves it.
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126 Opinion of the Court 19-10332

1. GENERAL PRINCIPLES
The Sentencing Guidelines provide for a two-level sentence
enhancement “[i]f a dangerous weapon (including a ﬁrearm) was
possessed[.]” U.S.S.G. § 2D1.1(b)(1). The commentary for
§ 2D1.1(b)(1) provides that “[t]he enhancement should be applied
if the weapon was present, unless it is clearly improbable that the
weapon was connected with the oﬀense.” § 2D1.1(b)(1), cmt.
n.11(A). “We review ‘the district court’s ﬁndings of fact under §
2D1.1(b)(1) for clear error, and the application of the Sentencing
Guidelines to those facts de novo.’” United States v. Pham, 463 F.3d
1239, 1245 (11th Cir. 2006) (citing United States v. Gallo, 195 F.3d
1278, 1280 (11th Cir. 1999)).
The government bears the initial burden of showing by a
preponderance of the evidence that a ﬁrearm was present at the
site of the charged conduct or that the defendant possessed a ﬁre-
arm during conduct related to the oﬀense of conviction. See United
States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). Proximity
between guns and drugs alone is suﬃcient for the government to
meet that initial burden. See United States v. Carillo-Ayala, 713 F.3d
82, 91–92 (11th Cir. 2013). If the government meets its initial bur-
den, “the evidentiary burden shifts to the defendant, who must
demonstrate that a connection between the weapon and the of-
fense was ‘clearly improbable.’” Stallings, 463 F.3d at 1220 (quoting
United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001)).
A ﬁrearm enhancement may also apply to a defendant when
the ﬁrearm is possessed by a co-conspirator. See Pham, 463 F.3d at
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19-10332 Opinion of the Court 127

1245. In that situation, the government must show that “(1) the
possessor of the ﬁrearm was a co-conspirator, (2) the possession
was in furtherance of the conspiracy, (3) the defendant was a mem-
ber of the conspiracy at the time of possession, and (4) the co-con-
spirator possession was reasonably foreseeable by the defendant.”
Id.
2. MESSRS. WALKER AND GRAHAM
As to Mr. Walker, the evidence was suﬃcient to support the
application of the ﬁrearm enhancement. Speciﬁcally, Sgt. Kelly tes-
tiﬁed that she and another oﬃcer observed Mr. Walker during a
controlled drug buy in January of 2015. When one oﬃcer noticed
Mr. Walker with a gun, the authorities moved in and a chase en-
sued, leading into an apartment where Sgt. Kelly saw Mr. Walker
toss the gun into the kitchen sink before he was apprehended. A
search of the apartment revealed a second gun, small bags of ma-
rijuana, and money. This apartment belonged to Mr. Walker’s
grandmother, but it was where he was “staying.” D.E. 1203 at 97–
98, 101.
Mr. Walker argues that Sgt. Kelly’s testimony is insuﬃcient
to show either that he possessed the ﬁrearm during the transaction
or that he was the person who sold the drugs. But it is enough that
the ﬁrearms were present at the site of the charged conduct. See
Carillo-Ayala, 713 F.3d at 90. And Mr. Walker cannot show that it
was “clearly improbable” that the ﬁrearms were connected to the
drugs, which were in close proximity to each other. See id. See also
United States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (aﬃrming
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128 Opinion of the Court 19-10332

application of a ﬁrearm enhancement where a handgun was found
34
in the same room with other drug paraphernalia and cash).
Turning to Mr. Graham, the district court explained at sen-
tencing that it was applying the enhancement because ﬁrearms
were used during the DSBF’s drug transactions at the South Gwen
Cherry complex and, therefore, it was reasonably foreseeable to
Mr. Graham that his co-conspirators would possess ﬁrearms during
those transactions. Mr. Graham, however, abandoned on appeal
any challenge to the application of the ﬁrearm enhancement on
that ground. We therefore aﬃrm the application of the enhance-
ment. See Sapuppo, 739 F.3d at 680.
But even putting abandonment aside, the record shows that
Messrs. Graham and Walker communicated about drug traﬃcking
activities and exchanging guns. Mr. Graham also was present at the
controlled buy in January of 2015. The record therefore supports
a ﬁnding that Mr. Walker’s ﬁrearm possession was reasonably fore-
seeable to Mr. Graham and part of the jointly-undertaken criminal
activity. We therefore conclude that the district court did not
clearly err in applying the ﬁrearm enhancement to Mr. Graham.
D. USE OF VIOLENCE

34 Curtis Bryant purports to adopt Mr. Walker’s argument on this issue. But
he cannot do so because the application of the firearm enhancement is a fact-
specific inquiry for a defendant, and therefore requires independent briefing.
See, e.g., Khoury, 901 F.2d at 963 n.13.
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Jerimaine Bryant and Messrs. Walker, Graham, and Jones
challenge the district court’s application of a two-level enhance-
ment based on its ﬁndings that each defendant “used violence,
made a credible threat to use violence, or directed the use of vio-
lence[.]” U.S.S.G. § 2D1.1(b)(2). The district court applied the en-
hancement to each defendant based on separate violent threats or
incidents.
We review the district court’s ﬁndings of fact under the use-
of-violence enhancement for clear error and its application of the
Sentencing Guidelines de novo. See United States v. Yuk, 885 F.3d 57,
82 (2d Cir. 2018); Pham, 463 F.3d at 1245. We discuss each defendant
and his respective incident of violence.35
The district court applied the use-of-violence enhancement
to Jerimaine Bryant because he struck a community member in the
head with a boot for speaking with the police. Bryant does not
contend that the district court clearly erred in basing the enhance-
ment on this incident. Instead, he focuses on his lack of

35 Curtis Bryant attempts to adopt Mr. Walker’s argument on this issue. But
whether a defendant used violence is an individualized factual inquiry that de-
pends on his conduct. Curtis Bryant therefore cannot simply adopt Mr.
Walker’s argument on this point. See, e.g., Khoury, 901 F.2d at 963 n.13. Cf.
United States v. Cooper, 203 F.3d 1279, 1285 n.4 (11th Cir. 2000) (stating that
sufficiency-of-the-evidence arguments are “too individualized to be generally
adopted”). This is especially so where, as here, the district court applied the
enhancements to each defendant based on separate violent incidents. Compare
D.E. 1246 at 19 (applying the enhancement to Mr. Walker based on social me-
dia activity), with D.E. 1252 at 23–26 (applying the enhancement to Curtis Bry-
ant based on his participation in a murder).
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130 Opinion of the Court 19-10332

participation in other violent acts. This argument is insuﬃcient to
disturb the district court’s determination. A single incident of vio-
lence is enough. See United States v. Barronette, 46 F.4th 177, 209 (4th
Cir. 2022) (aﬃrming the application of the use-of-violence en-
hancement based on a threat to hit a person in the head).
With respect to Mr. Walker, the district court applied the
use-of-violence enhancement after considering social media evi-
dence. Following an incident where some rivals “tr[ie]d to jump
[another DSBF member],” Mr. Walker posted a request for a “[gun]
we can use to spook them n****s out with we know [where] they
be at.” Gov’t Exh. 317 at BSN 7865; D.E. 1246 at 19–20. The district
court determined that Mr. Walker’s request for a ﬁrearm to
“spook” others was a credible threat of violence suﬃcient to satisfy
§ 2D1.1(b)(2). This ﬁnding was not clearly erroneous. See United
States v. Sykes, 854 F.3d 457, 460–61 (8th Cir. 2017) (upholding the
application of the use-of-violence enhancement based on a defend-
ant’s statement to a conﬁdential source that he would ﬁnd and kill
the thief who stole drugs from him).
For Mr. Graham, the district court applied the use-of-vio-
lence enhancement based on testimony from Mr. Coakley that he
and Mr. Graham robbed a Metro PCS store together and that Mr.
Graham was the one brandishing a ﬁrearm. See D.E. 1250 at 5–6.
Mr. Graham argues that Mr. Coakley’s testimony regarding the
robbery was unreliable because he initially told the authorities that
they rode bikes to the Metro PCS store, whereas at trial he testiﬁed
that they drove to the store in a car. According to Mr. Graham, this
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19-10332 Opinion of the Court 131

inconsistency shows that the government failed to prove that he
robbed the store by a preponderance of evidence.
We reject Mr. Graham’s argument. The district court could
have disbelieved Mr. Coakley about Mr. Graham’s brandishing of
the gun, but it was not required to. Moreover, Mr. Graham could
have brought a gun to the robbery regardless of how he and Mr.
Coakley traveled to get to the Metro PCS store. Because we defer
to the district court’s credibility determinations, this inconsistency
is not enough to render its ﬁnding clearly erroneous. See United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (“[T]he
fact ﬁnder personally observes the testimony and is thus in a better
position than a reviewing court to assess the credibility of wit-
nesses.”).
The district court applied the use-of-violence enhancement
to Mr. Jones based on his involvement in the narcotics conspiracy;
it found that he was “on notice that this was a violent group” and
worked together with others who robbed a rival drug dealer. See
D.E. 1260 at 15–16, 25–26. The government concedes that Mr.
Jones did not personally use violence or make threats but contends
that the fact that the co-conspirators brought the spoils of the rob-
bery to Mr. Jones supports an inference that he directed or encour-
aged their violence. We disagree with the government.
The Sentencing Guidelines allow for the application of an
enhancement based on the actions of a defendant’s co-conspirators
if those acts are reasonably foreseeable and within the scope of
jointly-undertaken criminal activity, but only “in the absence of
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132 Opinion of the Court 19-10332

more explicit instructions in the context of a speciﬁc guideline[.]”
U.S.S.G. § 1B1.3, cmt. background. The language of the use-of-vi-
olence enhancement provides the required explicit instructions
here by framing the inquiry on whether “the defendant used vio-
lence, made a credible threat to use violence, or directed the use of
violence[.]” U.S.S.G. § 2D1.1(b)(2) (emphasis added). Unlike other
guideline provisions, § 2D1.1(b)(2) does not ask whether “violence
was used” or whether “the oﬀense involved violence.”36
Based on the language of § 2D1.1(b)(2), we must focus on
Mr. Jones’ own conduct. Absent any use or threatened use of vio-
lence by Mr. Jones, or his directing the use of violence, the district
court could not base this enhancement on the actions of co-con-
spirators. See United States v. Hernandez-Barajas, 71 F.4th 1104,
1107–08 (8th Cir. 2023) (holding that directing the use of violence
requires that the violence be a “reasonably foreseeable” conse-
quence of the defendant’s aﬃrmative acts, and compiling cases to
that eﬀect).
The evidence was insuﬃcient to sustain the use-of-violence
enhancement as to Mr. Jones. All we have is the government’s bare
assertion that the delivery of the drugs to Mr. Jones, without more,
evinced his direction of the violence. Although the presentence
investigation report stated that Mr. Jones was known as “the weed
man” and that he was involved in resale of the drugs after the

36 A number of other enhancements in the Sentencing Guidelines focus on the

offense and not the defendant’s own actions. See, e.g., U.S.S.G. §§ 2A3.2(c),
2B1.1(b)(11), 2D1.1(b)(1), 2H2.1(a)(1).
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robbers delivered the marijuana, see D.E. 868 ¶¶ 67, 80 & D.E. 1213
at 36, his role as a seller of stolen narcotics does not alone serve as
an open invitation for others to bring him the proceeds of their vi-
olent conduct. Without some evidence of such an arrangement,
this is an evidentiary bridge too far. That is to say, the use-of-vio-
lence by others was not a reasonably foreseeable consequence of
Mr. Jones’ own acts. See Hernandez-Barajas, 71 F.4th at 1107–08. We
therefore conclude that the district court clearly erred in its appli-
cation of the two-level use-of-violence enhancement to Mr. Jones.
We vacate his sentence and remand for resentencing.
E. OBSTRUCTION OF JUSTICE
Jerimaine Bryant and Mr. Hayes challenge the district court’s
imposition of a two-level enhancement for obstruction of justice.
“Whether the district court properly applied the obstruction of jus-
tice enhancement is a mixed question of law and fact.” United
States v. Johnson, 980 F.3d 1364, 1374 (11th Cir. 2020) (citation omit-
ted).
The Sentencing Guidelines provide for a two-level enhance-
ment for obstruction of justice if “(1) the defendant willfully ob-
structed or impeded, or attempted to obstruct or impede, the ad-
ministration of justice with respect to the investigation, prosecu-
tion, or sentencing of the instant oﬀense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s oﬀense of con-
viction and any relevant conduct; or (B) a closely related oﬀense[.]”
U.S.S.G. § 3C1.1. The enhancement is appropriate when a defend-
ant “threaten[s], intimidat[es], or otherwise unlawfully inﬂuenc[es]
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134 Opinion of the Court 19-10332

a co-defendant, witness, or juror, directly or indirectly, or attempt[s]
to do so[.]” § 3C1.1, cmt. n.4(A).
1. JERIMAINE BRYANT
We begin with Jerimaine Bryant. According to the presen-
tence investigation report, in November of 2010 he struck a wit-
ness, Shakita Frank, “in retaliation for her cooperation with the law
enforcement investigation.” D.E. 915 ¶ 27. 37
Jerimaine Bryant argues that, looking to the four corners of
the report, there was no evidence that his alleged conduct curtailed
or frustrated Ms. Frank’s cooperation with the authorities. He fur-
ther says that “[t]he cooperation had already occurred and there
[was] no evidence that it hindered or was designed to hinder future
cooperation since Ms. Frank did not testify at trial or at sentencing
as to the veracity of this 2010 allegation.” J. Bryant’s Br. at 42.
This argument fails. After all, § 3C1.1(1) includes an “at-
tempt[ ]” to obstruct or impede. So the fact that the attack on Ms.
Frank did not have its desired effect did not preclude application of
the enhancement. See United States v. Hesser, 800 F.3d 1310, 1330–
32 (11th Cir. 2015) (upholding enhancement for attempted witness
intimidation); United States v. Fleming, 667 F.3d 1098, 1110–11 (10th
Cir. 2011) (“[H]is request that Michelle tell Ms. Scott ‘not to be

37 During trial, Ms. Houser testified as follows: “Q: What did you talk to

Quincy about? A: I asked him why Jerimaine beat [Ms. Frank] with a [Tim-
berland] boot. He said she talk too fucking much, and she was trying to talk
to the First 48. . . . Q: What is First 48, when you say that? A: The homicide
detectives.” D.E. 1213 at 51–52.
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19-10332 Opinion of the Court 135

talking to anybody about this shit’ constituted an attempt to
threaten or influence Ms. Scott and satisfied the substantial step re-
quirement.”).
2. MR. HAYES
Next, we consider Mr. Hayes’ obstruction-of-justice en-
hancement. According to the presentence investigation report, in
February of 2017 Mr. Hayes physically assaulted Donzell Jones at
the Federal Detention Center in Miami because of the latter’s co-
operation with the government. See D.E. 868 ¶ 81. Mr. Jones tes-
tified about this incident at trial, explaining that following the inci-
dent he did not cooperate any further. D.E. 1114 at 46.
Mr. Hayes argues that Mr. Jones’ testimony was Rule 404(b)
“other act” evidence that was never noticed by the government,
was not relevant to the issues raised in the indictment, and was
therefore inadmissible. But “it’s well established that [i]n determin-
ing the relevant facts, sentencing [courts] are not restricted to in-
formation that would be admissible at trial.” United States v. Bap-
tiste, 935 F.3d 1304, 1315 (11th Cir. 2019) (citation and internal quo-
tation marks omitted). We have explained in similar circumstances
that otherwise inadmissible evidence “is fair game” as part of a dis-
trict court’s sentencing calculus “provided that the information has
sufficient indicia of reliability to support its probable accuracy.” Id.
(quoting U.S.S.G. § 6A1.3).
Significantly, Mr. Hayes does not challenge the reliability of
Mr. Jones’ testimony. The closest he comes is his assertion that the
“tussle” was a “mere coincidence” when compared to the timing
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136 Opinion of the Court 19-10332

of Mr. Jones’ cooperation. See S. Hayes Br. at 51. But this simply
challenges the inferences that can be drawn from the evidence, and
not the reliability of the testimony itself. Indeed, Mr. Hayes notes
in his reply brief that “the present record . . . allows an inference
based on the pure coincidence that [Mr.] Hayes and [Mr.] Jones
fought at a time subsequent to [Mr.] Jones’[ ] decision to cooper-
ate.” This does not bear on reliability.
The district court did not err in applying the obstruction en-
hancement to Mr. Hayes based on his assault of Donzell Jones.
F. DISPARATE SENTENCES
Mr. Graham argues that the district court acted unreasona-
bly in sentencing him to imprisonment for 60 more months than
Mr. Ingram for similar crimes. According to Mr. Graham, Mr. In-
gram received a lighter sentence despite playing a larger role in the
drug conspiracy, participating in the conspiracy for a longer time,
and having a prior criminal record.
We review the reasonableness of a sentence (both procedur-
ally and substantively) for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 56 (2007). At sentencing, district courts must
consider, among other things, “the need to avoid unwarranted sen-
tence disparities among defendants with similar records who have
been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6) (em-
phasis added). But “[d]isparity between the sentences imposed on
codefendants is generally not an appropriate basis for relief on ap-
peal.” United States v. Regueiro, 240 F.3d 1321, 1325–26 (11th Cir.
2001). And defendants convicted of diﬀerent oﬀenses, or subject to
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19-10332 Opinion of the Court 137

diﬀerent advisory guideline ranges, are not “similarly situated” for
the purpose of considering sentencing disparities. See United States
v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015).
Messrs. Ingram and Graham were not “similarly situated”
defendants for purposes of sentencing. Mr. Ingram was found
guilty of two drug-related charges and acquitted of the RICO con-
spiracy charge, whereas Mr. Graham was found guilty of two drug-
related charges and the RICO conspiracy charge. See D.E. 735; D.E.
732. Mr. Graham also received a use-of-violence enhancement that
Mr. Ingram did not. As a result, Mr. Graham had an advisory guide-
lines range of 235 to 293 months’ imprisonment, compared to a
range of 210 to 262 months’ imprisonment for Mr. Ingram. Both
received below-guidelines sentences—228 months for Mr. Graham
and 168 months for Mr. Ingram.
In short, Mr. Graham was found guilty of a more serious
crime, and received an additional enhancement, and as a result he
received a longer sentence. See Azmat, 805 F.3d at 1048 (“Defend-
ants convicted of more crimes or more serious oﬀenses naturally
receive longer prison sentences[.]”). Given their diﬀerent convic-
tions and circumstances, we cannot say that the district court
abused its discretion in sentencing Mr. Graham to 60 more months
than Mr. Ingram.
G. THE LIFE IMPRISONMENT SENTENCES OF MR. GLASS AND
JERIMAINE BRYANT
Mr. Glass and Jerimaine Bryant argue challenge their life im-
prisonment sentences on various grounds. Because both
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138 Opinion of the Court 19-10332

defendants were convicted of the Count 1 RICO conspiracy
charge, and because we have set aside the Count 1 convictions and
sentences, we do not address the life imprisonment sentences.
X. CONCLUSION
We set aside the convictions and sentences of Jerimaine Bry-
ant, Curtis Bryant, Mr. Graham, Mr. Walker, Mr. Hayes, and Mr.
Glass on the Count 1 RICO conspiracy charge, and remand for a
new trial if the government chooses to retry these six defendants.
If the government does not wish to retry the defendants on Count
1, the district court will need to resentence them.
We also vacate Mr. Jones’ sentence due to the improper ap-
plication of the use-of-violence enhancement and remand for re-
sentencing.
In all other respects, we aﬃrm the defendants’ convictions
and sentences.
AFFIRMED IN PART, REVERSED IN PART, AND RE-
MANDED.
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19-10332 BRASHER, J., Concurring in Part, Dissenting in Part 1

BRASHER, Circuit Judge, concurring in part and dissenting in part:
I concur with almost all the majority opinion, but I dissent
from Part V and its necessary implications for other portions of the
opinion. The majority concludes in Part V that the district court
abused its discretion by excluding defense expert Dr. de la Cruz’s
testimony. I disagree.
The government charged the defendants with a conspiracy
to commit racketeering through “any enterprise” engaged in or af-
fecting interstate commerce. See 18 U.S.C. § 1962(d). Dr. de la Cruz
proposed to testify that he had “studied a criminal enterprise, what
it does, how it works, [and that the defendants’ conduct] does not
equal this”; the defendants argued that “regardless of the labeling
one way or another . . . that is the crux of the testimony which
should go to the jury.” The district court explained that a problem
with this proposed testimony was “his criteria” in making his as-
sessment: “that [enterprises] don’t have rules, that they don’t do
this, that real . . . criminal enterprises don’t shoot themselves.”
Without citing any specific portion of Fed. R. Evid. 702, the district
court surmised: “I certainly don’t think it is the subject of expert
testimony[.]”
I think the district court was right. Dr. de la Cruz didn’t take
the legal definition of “enterprise” as a given and discuss how that
definition applied to the facts of this case; he made up his own legal
definition of enterprise and planned to tell the jury to apply that
definition. The district court was correct in excluding Dr. de la
Cruz’s testimony, because an expert “‘may not testify to the legal
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2 BRASHER, J., Concurring in Part, Dissenting in Part 19-10332

implications of conduct.’” Commodores Entm’t Corp. v. McClary, 879
F.3d 1114, 1128 (11th Cir. 2018) (quoting Montgomery v. Aetna Cas.
& Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)). Instead, the court
must be the jury’s only source of law. Montgomery, 898 F.2d at 1541.
When an expert witness offers legal conclusions, he “invade[s] the
court’s exclusive prerogative” and “risk[s] confusing” the jury.
Commodores, 879 F.3d at 1129. So, a district court must take “ade-
quate steps to protect against the danger that [an] expert’s opinion
would be accepted as a legal conclusion.” Id. (quoting United States
v. Herring, 955 F.2d 703, 709 (11th Cir. 1992)).
Dr. de la Cruz’s proffered testimony was fraught with legal
opinions about what makes an “enterprise.” The “crux” of his pro-
posed testimony was his “criteria” for assessing whether a group is
a criminal enterprise, which differ from the actual legal definition
of the term. Specifically, he laid out “universal” characteristics of a
“criminal enterprise” and then applied those idiosyncratic criteria
to the question of whether the “people in this case constitute a
criminal enterprise[.]” For instance, he testified that criminal enter-
prises “all have a leader,” “all commit crimes for the benefit of the
organization,” “don’t allow [members] to use drugs” because “you
can’t make money for the organization if you’re smoking it up,”
and universally do not permit members to “assault or kill an indi-
vidual from [their own] organization . . . without permis-
sion[.]”When explaining why he thought no such enterprise ex-
isted “in this case,” he testified that the defendants had “no leader-
ship direction,” and that criminal enterprises have “certain rules”
including that “you don’t use the drugs that you sell for the
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19-10332 BRASHER, J., Concurring in Part, Dissenting in Part 3

organization[.]” A juror could reasonably construe Dr. de la Cruz’s
testimony as providing definitional criteria for a RICO enterprise—
indeed, there is no other way to understand it.
The problem is that the definition of a RICO enterprise
within the meaning of 18 U.S.C. § 1962(d) is a question of law. See
generally Ruiz v. United States AG, 73 F.4th 852, 855–56 (11th Cir.
2023) (an argument “about the meaning of a statutory . . . provision
[ ] presents a quintessential question of law.” (citation and internal
quotation marks omitted)); United States v. Chinchilla, 987 F.3d
1303, 1306 (11th Cir. 2021) (“The interpretation of a criminal stat-
ute is a legal question we review de novo.”). And as the majority
indicates, the Supreme Court has spoken on that legal question by
setting out “structural features” of a RICO association-in-fact en-
terprise: “a purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938,
946 (2009). By setting out his own “universal” structural features of
an enterprise—e.g., leadership, crimes committed for the organiza-
tion’s benefit, rules against using drugs meant to be sold—Dr. de la
Cruz’s testimony would have risked confusing the jury over the
meaning of a statutory term and invaded the district court’s exclu-
sive prerogative to state the law. See Commodores, 879 F.3d at 1129.
The majority says that Dr. de la Cruz’s testimony was not
improper legal testimony by pointing to the Third Circuit’s propo-
sition that the “existence vel non of a RICO enterprise is a question
of fact for the jury.” United States v. Console, 13 F.3d 641, 650 (3rd
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4 BRASHER, J., Concurring in Part, Dissenting in Part 19-10332

Cir. 1993). This proposition is true, the majority emphasizes, even
though a RICO enterprise has a legal definition. I don’t disagree.
But Dr. de la Cruz did not testify only as to whether a RICO enter-
prise existed. Nor was he asked whether the defendants exhibited
the structural RICO enterprise features the Supreme Court set out
in Boyle, 556 U.S. at 946. Instead, as explained above, he spent the
bulk of his testimony providing his own legal definition of “enter-
prise” by presenting his own set of structural features that are sup-
posedly “universal” to criminal enterprises. In other words, his tes-
timony was improper legal opinion because its crux was to provide
the jury his own idiosyncratic definition of a statutory term.
In any event, I can’t say the district court abused its discre-
tion in excluding this testimony. “The abuse of discretion standard
allows for a range of choice, and that means that sometimes we
will affirm even though we might have decided the matter differ-
ently in the first instance.” Doe v. Rollins Coll., 77 F.4th 1340, 1347
(11th Cir. 2023), cert. denied, 144 S. Ct. 1056 (2024). Because Dr. de
la Cruz’s testimony offered improper legal opinions on the stand-
ard to evaluate whether a RICO enterprise exists, the district court
reasonably prevented him from testifying. See Commodores, 879
F.3d at 1128–29. So I respectfully concur in part and dissent in part
from the majority opinion.

United States v. Reginald Graham

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