NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 10

- 4025

_______________ UNITED STATES OF AMERICA

v. JEROME BLYDEN ,

Appellant

_______________ On Appeal from the District Court of the Virgin Islands

App ellate Division of St. Croix (D.C. C rimina l Action No. 3

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- c r - 0 0 0 20

- 002 ) District Judge : Hon orable Curtis V. Gomez

_______________ Argued April 13 , 2011

_______________ Before: SCIRICA , RENDELL and AMBRO , Circuit Judges

(Opinion filed June 9, 2011 ) Treston E. Moore, Esquire (Argued) Moore, Dodson & Russell 5035 (14A) Norre Gade P.O. Box 310 Charlotte Amalie, St. Thomas, VI 00802 Counsel for Appellant Ronald W. Sharpe United States Attorney Nolan D. Paige (Argued) A ssistant U.S. Attorney2

Kelly Lake, Esquire Kim R. Lindquist, Esquire Office of United States Attorney 5500 Veterans Building, Suite 260 United States Courthouse Charlotte Amalie, St. Thomas, VI 00802

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_______________ OPINION

_______________ AMBRO, Circuit Judge
Presented with evidence of his involvement with Gelean Mark, a grand jury
indicted Jerome Blyden for, inter alia , participating in the affairs of the “Mark

- Blyden Enterprise” ( a n organization engaged in illegal narcotics distribution, unla wful gambling
relat ed to dog fighting, and violent acts ) through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (Count One); and the assault with a dangerous weapon
of Trevor Nicholas Friday, Jr ., in aid of racketeeri ng, in violati on of 18 U.S.C. § 1959(a)(3) (Count Three). The jury acquitted on Count One but convicted o n Count
Three. The Dist rict Court sentenced Blyden to 78 months i n prison

. He raises several
claims of error. As they are not persuasive, w e affirm. 1
I

. Blyden first challenge s the sufficiency of the evidence sup port ing his conviction

.

“ [W] e must view the evidence in the light most favorable to the government and must

1 The District Court of the Virgin Islands had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612(c). We have jurisdiction under 28 U.S.C. § 1291, 48 U.S.C. § 1613, and 18 U.S.C. § 3742.3

sustain the jury‟s verdict if a reasonable jury believing the government‟s evidence could
find guilt beyond a reasonable doubt.” United States v. Vosburgh , 602 F.3d 512, 537 (3d

Cir. 2010) (internal quotation marks and citation omitted). Blyden argues that the e vidence was insufficient for several reasons , n one of
which is persuasive

. First, s uff icient evidence showed that the enterprise existed prior to
the May 24, 2004, shooting of Friday , thereby supporting the finding that the assault was in aid of racketeering. Mark associate Elton Turnbull testified that he was helping Mark move drugs throu gh the St. Thomas airport to North Carolina by a specific modus operandi as early as 1999, and Mark associate Glenson Isaac testified that he had a business relationship with Mark, involving dog fighting and drugs, as of March 2003.
In addition , Turnbull‟ s testimony that dogs were sent from North Carolina to the Virgin Islands e stablishe d sufficient contacts between the enterprise and interstate

commerce. 2 See United States v. Dickens , 695 F.2d 765, 781 (3 d Cir. 1982) ( “ E ven a minimal nexus [with intersta te commerce] will satisfy the statutory requirement.” ).
Moreover , the evidence w as sufficient to show that Blyden committed the assault “for the purpose of . . . maintaining or increasi ng position in [the] enterprise,” 18 U.S.C. § 1959(a), because Isaac t esti fied that Mark described Blyden as his “bodyguard; ” Friday‟s aunt testified that Blyden told her that Friday owed his “partner” (Mark) money , and that Blyden threatened to do bodily harm to Friday ; and Blyden‟s ex

- girlfriend

2 Isaac testi fied that Blyden worked security at one of the dog fights and collected money from attendees

.4

testified that , on the nigh t of the assault , she overheard Blyden show his allegiance to Mark by offering to cover up the shooting

. Finally , we reject Blyden ‟s contention that the evidence was insufficient for an aiding and abetting theory because 18 U.S.C. § 1959(a)(3) “does not a uthorize conviction for aiding and abetting another.” Appellant‟s Br. at 27. Count Three charged Blyden under 18 U.S.C. §§ 1959 and 2, the latter of which provides that “[w]hoever commits an offense against the United States [,] or aids, abets, [or] couns els

. . . its commission, is punishable as a principal.” 18 U.S.C. § 2(a). T his provision “authorize[s] conviction for aiding and abetting,” Appellant‟s Br. at 27, even if 18 U.S.C. § 1959(a)(3) does not. In light of the foregoing, Blyden‟s various chal lenges to the sufficiency of the
evidence supporting the jury‟s verdict on Count Three fall well short

. 3
II. Blyden next argues that the jury could not have acquitted him on Count One while
convict ing him on Count Three, because once the jury found that h e did not “conduct . . .
the affairs of an enterprise through a pattern of racketeering activity,” it could not have found him guilty of “assault

. . . with a dangerous weapon in aid of racketeering activity.” App. at 500, 503 (Verdict Form). “ We apply d e novo review to th is purely legal question of statutory interpretation .” Lee v. Ashcroft , 368 F.3d 218, 221 (3d Cir. 2004)

.

3 In his reply brief, Blyden challenges the indictment, arguing that it “did not adequat ely inform [him] of the charge . . . , [and] was otherwise textually defective.” Reply Br. at 6. Because Blyden failed “ to set forth th [is] issue []

. . . and to present an argument in . . . [his] opening brief,” he “ has abandoned and waived th [is] issue on appeal. ” Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993). Even without the waiver, Blyden‟s argument is unpersuasive.5

Blyden‟s argument s fail

. Conviction on Count One required that he “conduct[ed] or participate[d]

. . . in the conduct of [an] en terprise‟s affairs through a pattern of racketeering activity .” 18 U.S.C. § 1962(c). Conviction on Count Three , by contrast , required no such pattern. See 18 U.S.C. § 1959(a) ( “ Whoever . . . for the purpose of . . . maintaining or increasing position in an enterprise engaged in racketeering activity . . . assaults with a dangerous weapon . . . any individual . . . shall be punished.”). T he jury
could have f

ound ( and apparently did find ) , that Blyden assaulted Friday “for the purpose of . . . maintaining or increasing position in [the Mark

- Blyden] enterprise, ” 18 U.S.C. § 1959(a) , even without engag ing in a pattern of racketeering activity

. B ecause of the different elements of the crimes charged in Counts One and Three, conviction on Count
One was not a prerequisite for conviction on Count Three. 4
I II

. Blyden next contends that the District Court erred in declining to pose voir dire questions he proposed regarding whether jurors could be impartial even though t he

“ evidence in this case may reference the discharge of firearms [,] . . . illegal drugs [,] . . . [and] dog fighting. ” App. at 136

- 37. The Court questioned the jurors about their ability
to be fair and follow the law , but Blyden argues that “[b]ecause of the prevalence of guns

4 Blyden argues also that the enterprise‟s pattern of racketeering activity did not span a sufficient time period. However, as explained above, no such pattern, of whatever length of time, is required under 18 U.S.C. § 1959(a). Also, t o the extent Blyden argu es that the verdict was inconsistent, we note that t his is not a basis for acquittal because “an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury‟s deliberations that courts generally will not undertake.” United States v. Powell, 469 U.S. 57, 66 (1984)

.6

locally and the hot topic of dog fighting nationally, . . . questions to obtain the thoughts of prospective jurors in advance of trial should have been posed.” Reply Br. at 8

- 9. However, we “review the district court‟s conduct of voir dire for abuse of discretion,” Butler v . City of Camden , 352 F.3d 811, 815 n.4 (3d Cir. 2003), and “[g]enerally, a district judge need not pursue any specific line of questioning.” Waldorf
v. Shuta , 3 F.3d 705, 710 (3d Cir. 1993)

. Indeed, “ district courts have been awarded ample discretion in determining how best to conduct the voir dire.” Id. Here, the Court
asked if the jurors had any relationship with any counsel, defendant, or witness, if they knew about the case, if they or a family member had been involved with the crim inal justice sys tem, and if any of the foregoing would prevent them from deliberating fairly

. The se questions were sufficiently “probative on the issue of impartiality,” id. , and so the Court did not abuse its discretion in declining to pos e Blyden‟s specific questions.
I V. Blyden next argues that the District Court erred in failing to give jury instructions he proposed concerning the credibility of testimony from paid informants, immunized witnesses, and accomplice s
. “The District Court‟s refusal to give a requested ju ry instruction is reviewed for abuse of discretion.” United States v. Weatherly , 525 F.3d 265, 269

- 70 (3d Cir. 2008). “A court errs in refusing a requested instruction only if the omitted instruction is correct, is not substantially covered by other inst ructions, and is so important that its omission prejudiced the defendant.” United States v. Davis , 183 F.3d 231, 250 (3d Cir. 1999)

. The District Court instructed the jury, inter alia , as follows:7

You‟ve heard testimony from some witnesses who either rec eived benefits from the government in connection with this case or were involved in the commission of offenses related to the crimes against the defendants. You may give the testimony of those witnesses such weight as you feel it deserves, keeping in mind that such testimony must be considered with greater caution and care than that of an ordinary witness. App. at 2003, 2007. Th is “substantially covered” Blyden‟s requested instructions, Davis , 183 F.3d at 250, and so the District Court did not abuse its discretion when it declined to give the exact instructions Blyden sought.
V. Finally, Blyden takes issue with his sentence

. We review sentenc es for abuse of
discretion , United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) , and
“a ppellate re view of sentencing decisions is limited to determining whether they are „reasonable.‟” Gall v. United States , 552 U.S. 38, 46 (2007). Part of this review is

“ ensur [ing] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .” Id. at 51. Blyden contends that his sentence was procedurally unreasonable because the District Court erred in determining his base offense level under the Sentencing
Guidelines. Secti on 2E1.3(a) of the Guidelines provides that the base offense level for “Violent Crimes in Aid of Racketeering Activity” is “(1) 12; or (2) the offense level applicable to the underlying crime or racketeering activity.” Application Note 1 provides that “[i ]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used. ” U.S.S.G. § 2E1.3 app. n.1.8

The Probation Office and the District Court calculated a Guidelines range of 63 to
78 months , r esulting from a total offense level of 26 and a criminal history category of I.
Th e total offense level was calculated starting from a base offense level of 14, which was
chosen because Blyden‟s underlying conduct violated V.I. Code Ann. tit. 14, § 297(2) ; 5
the m ost analogous federal offense was assault within a territorial jurisdiction of the United States, 18 U.S.C. § 113(a)(3); 6 and the corresponding Guideline was U.S.S.G. § 2A2.2, because “[a]ggravated assault” is one “involv[ing]

. . . a dangerous wea pon with
intent to cau se bodily injury. ” U.S.S.G. § 2A2.2 app. n.1. Blyden contends that his base offense level should have been 12 because of “the clarity provided by reference to Base Offense Level 12” in U.S.S.G. § 2E1.3 (a)(1)

. Appellant‟s Br. at 32. This argument ignores § 2E1.3(a)‟s specific provision that the greater of 12 or the offense level applicable to the underlying crime be applied. Blyden argues in the alternative that , under § 2E1.3(a)(2), his “„underlying crime‟ is assault with a danger ous weapon, [which is] specifically referenced in 18 U.S.C. § 1959(a)(3),” Appellant‟s Br. at 33, and so § 2E1.3(a)(1)‟s base offense level of 12 still controls. This argument ignores Application Note 1 of § 2E1.3 , which provides that “[i]f the underlying conduct violates state law, the offense level corresponding to the most analogou s federal

5 V.I. Code Ann. tit. 14, § 297(2) provides that “[w]hoever, under circumstances not amounting to an assault in the first or second degree [,] . . . assaults another with a deadly weapon . . . shall be . . . imprisoned not more than 5 years.”

6 18 U.S.C. § 113(a)(3) provides that “ [w]hoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault . . . with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, [shall be punished] by a fine under this title or imprisonment for not more than ten years, or both.”9

offense is to be used, ” and Blyden gives us no reason to question the selection of 18 U.S.C. § 113(a)(3) as the m ost analogous federal statute. Blyden also contends that he should have been grant ed a minimal or minor role
reduction because he was present for the Friday shooting but did not pull the trigger. “[W]here [a] district court‟s denial of a downward adjustment . . . rests on factual determinations, we review for clear error.” United States v. Isaza

- Zapata, 148 F.3d 236, 237 (3d Cir. 1998). The Sentencing Guidelines provide that a n offense level may be reduced by four levels “[i] f the defendant was a minimal participant in any criminal activity ,” U.S.S.G. § 3B1.2(a), and may be reduced by two levels “ [i]f the defendant was a minor partic ipant in any criminal activity.” U.S.S.G. § 3B1.2(b) . “Minimal participants” are “ plainly among the least culpable of those involved in the conduct of a group ,” U.S.S.G. § 3B1.2 cmt. n.4, and a “minor participant” is “a defendant . . . who is less culpable than most other participants but whose role could not be described as minimal. ” Id. cmt. n.5

. Blyden‟s role in the attack on Friday cannot be described as “minimal” or

“ minor.” Friday testified that , prior to the assault, Blyden sought him out because he owed money to Mark, and Friday‟s aunt testified that Blyden told her that Friday owed money to Mark and threatened to harm Friday. In addition, Blyden‟s ex

- girlfriend s tated
that , on the night of the shooting , she saw Blyden and Mark talking. “ And I saw Mr. Mark hand Mr. Blyden a weapon

. . . [a] nd I heard Mr. Blyden state, „Don‟t worry about it. I‟ll deal with it. I‟ll take the rap for it.‟” App. at 1037

- 38. Given that Blyden sought to collect money Friday purportedly owed to Mark, threatened harm to Friday if the10

money were not paid, was present for the shooting , and offered to cover it up, the District Court did not clearly err in finding Blyden ineligible for a r ole reduction.
* * * * * In light of the foregoing, we affirm the judgment of the District Court.