1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0171p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

A

NTONIO R IOS (14-2495); D AVID C ASILLAS (14- 2512), Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ ┘ Nos. 14-2495/2512

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cr-00132—Robert Holmes Bell, District Judge. Argued: January 14, 2016
Decided and Filed: July 21, 2016
Before: SUHRHEINRICH and MOORE, Circ uit Judges; LUDINGTON, District Judge. *

_________________ COUNSEL

ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Po rtage, Michigan, for Appellant in 14- 2495. Mary Chartier, ALANE & CHARTIER, P.L.C ., Lansing, Michigan, for Appellant in 14- 2512. Sally J. Berens, UNITED STATES ATTO RNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant in 14-2495. Mary Chartier, ALANE & CHARTIER, P.L.C., Lansing, Michigan, for Appellant in 14-2512. Sally J. Berens , Russell A. Kavalhuna, UNITED STATES ATTORNEY’S OFFICE, Grand Rapi ds, Michigan, for Appellee.

* The Honorable Thomas L. Ludington, United States Di strict Judge for the Easter n District of Michigan, sitting by designation. 

### >Nos. 14-2495/2512 United States v. Rios, et al. Page 2

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. Antonio Rios and David Casillas were charged along with twenty-nine co-defendants ina sprawling racketeering indictment charging that they were involved in th e criminal activities of the Ho lland, Michigan chapter of the organization known as the Latin Kings. Rios and Casillas were the only ones to go to trial—theothers pleaded guilty and were sentenced, and we recently resolved the appeals of nine codefendants who challenged the sentences they received. See United States v. Penaloza , Nos. 14- 1360, 14-1600, 14-1717, 14-1804, 14-1839, 14- 1986, 14-2094, 14-2129, 14-2249, 2016 WL 2755180, ___ F. App’x ___ (6th Cir. May 12, 2016). The case against Rios and Casillas focused on a racketeering-conspiracy charge (“Count On e”) under the Racketeer In fluenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. , which alleged that the Holland Latin Kings was a racketeering enterpri se that “was and is overseen by, has always had connections to, and received directions from, the Chicago Height s, Illinois (21st and Wenworth) Latin Kings.” R. 480 (Fourth Superseding Indictment at 5) (Page ID #2142). C ount One alleged the
commission of 129 overt acts in furtherance of the twenty-year -long racketeering conspiracy, and also contained eleven special sentencingallegations, charging various defendants with conspiring to distribute five kilograms or more of coca ine between 1993 and 2013, and the
commission of ten assaults with the intent to commit murder. Id. at 15–37 (Page ID #2152–74). Rios and Casillas were each charged in Count One and its special sentencing allegation regarding the distribution of cocaine, and Rios was additiona lly charged with three of the assaults with the
intent to commit murder. See id. at 3, 33–36 (Page ID #2140, 2170–73). Count Fourteen—with which Rios and Casillas were charged—alleged a conspiracy to possess with the intent to distribute five kilograms or more of cocaine between 2006 and 2012. See id. at 54–55 (Page ID #2191–92). Count Fifteen—with which Rios was charged, but Casillas was not—alleged a conspiracy to possess with the intent to distri bute one-hundred kilograms or more of marijuana
between 2009 and 2012. See id. at 56 (Page ID #2193).Nos. 14-2495/2512 United States v. Rios, et al. Page 3

Rios and Casillas proceeded to trial on June 2, 2014. The evidence presented was extensive, and we review many f acets of it in detail in connection with our assessment of the various legal arguments presente d by Rios and Casillas. In su mmary, three initial witnesses painted a picture of the nationa l Latin Kings organi zation and how the Ho lland Latin Kings fit into its structure and practices. Much of the rest of the trial consisted of testimony, largely from cooperating co-defendants, corroborating aspect s of the testimony regarding the Holland Latin Kings, and setting forth details about a number of specific criminal acts that the government
claimed had been committed in furtherance of the racketeering conspiracy. On June 13, 2014, the jury found Rios and Casillas guilty of Count One, the RICO conspiracy, and Count Fourteen, the cocaine conspiracy. See R. 1197 (Verdict Form at 1–3) (Page ID #13777–79). The jury also found Rios and Casillas responsible for the Count One special sentencing allegation related to the distribution of five kilograms or more of cocaine between 1993 and 2013. See id. at 1–2 (Page ID #13777–78). The jury acquitted Rios of Count Fifteen, the marijuana-distribution conspiracy, as well as the special sentencing alle gations regarding assault with the intent to
commit murder. See id. at 1–3 (Page ID #13777–79).

Rios was later sentenced to concurrent terms of 240 months on Count One and 300 months on Count Fourteen, with 61 months of credit “for gang-related discharged terms of imprisonment,” R. 1396 (Rios Judgment at 2) (P age ID #20861), and Casillas was sentenced to
concurrent terms of 200 months on Count On e and 360 months on Count Fourteen, with 148 months of credit “for gang-related discha rged terms of imprisonment,” R. 1397 (Casillas Judgment at 2) (Page ID #20867). On appeal, th ey each raise issue with many aspects of the trial, as well as the sentences they r eceived. For the reasons that follow, we AFFIRM Rios’s conviction and sentence, and AFFIRM Casillas’s convict ion and sentence.

I. ANALYSIS – TRIAL ISSUES
A. Appropriateness of Expert Testimony
The government proposed pretrial that it would utilize two expert witnesses. Keith Bevacqui would serve as an expert “regardi ng the Latin Kings national organization,” R. 912 (Gov’t’s Suppl. Response to Expert Mot. at 3) (Page ID #6840), and Detective KristopherNos. 14-2495/2512 United States v. Rios, et al. Page 4

Haglund—who had also served as a lead inves tigator in this case—would provide expert testimony regarding “the unique attr ibutes of the Holland chapter of the Latin Kings” and “as to who, in his opinion, is a member of the Holland Latin Kings,” R. 895 (Gov’t’s Initial Response to Expert Mot. at 2) (Page ID #6442). The defe ndants sought to exclude both witnesse s, arguing that Bevacqui could not “reliably apply his princi ples and methods to the facts of this case,” R. 954 (Defs.’ Suppl. Expert Mot. at 2) (Pag e ID #8760), while Haglund lacked a reliable methodology, would be testifying to matters that would be covered by fact witne sses, and would confuse the jury by virtue of his dual role as both fact and expert witness, R. 845 (Defs.’ Expert Mot.) (Page ID #5452–66). The district court denied both requests. See R. 1064 (April 18, 2014 Opinion) (Page ID #11477–87). Both witnesses tes tified as experts at trial, with Bevacqui focusing on the structure, norms, and operati ons of the Almighty Latin King Nation, and Haglund linking that testimony to similar practi ces by the Holland Latin Kings. Haglund also testified to the Holland Latin Kings’s drug-trafficking activities, and its use of violence to protect those activities, its members, and its territory.
On appeal, Rios and Casillas raise a number of arguments regarding this testimony. Both argue that Bevacqui’s testimony was irrelevant and unreliable because Bevacqui knew nothing about the Holland Latin Kings. Rios also cont ests Haglund’s testimony, arguing that it served only to impart “his opinion that the Defendants who went to trial were guilty” and that he “mixed fact and expert testimony together .” Rios Appellant Br. at 29–30. Relatedly, Rios and Casillas rely extensively on a portion of th e Second Circuit’s decision in United States v. Mejia , 545 F.3d 179 (2d Cir. 2008), that discusse d the proper scope of gang-expe rt testimony under Rule 702. Before analyzing these interrelated arguments, we set forth the law regarding the use of expert witnesses on gangs and discuss the many pitfalls that attend to the use of such witnesses.
1. Law Governing the Use of Gang-Expert Witnesses.
Like all experts, the role of gang-expert witnesses is governed by Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expertby knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:Nos. 14-2495/2512 United States v. Rios, et al. Page 5

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the eviden ce or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of re liable principles and methods; and
(d) the expert has reliably applied the pr inciples and methods to the facts of the

case. Although Rule 702 commonly applies to scientific expert test imony, it applies equally to witnesses whose expertise stems from other types of specialized knowledge, granting the district court “considerable leeway in deciding in a part icular case how to go about determining whether particular expert testimony is reliable,” provided that the gatekeeping mandate of Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579 (1993), is followed “to ensure the reliability and relevancy of expert testimony,” Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152 (1999). The Rule 702 analysis proceeds in three stages: “First, the witness must be qualified by ‘knowledge, skill, experience, training, or education.’ Second, the testimony must be relevant, meaning that it
‘will assist the trier of fact to understand the eviden ce or to determine a fact in issue.’ Third, the testimony must be reliable.” In re Scrap Metal Antitrust Litig. , 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed. R. Evid. 702), cert. denied , 556 U.S. 1152 (2009). “We review for abuse of
discretion the districtcourt’s determinati on to admit or exclude expert testimony.” Id. at 528.
To determine whether an expert’s testimony w ill be relevant, we look to “whether the untrained layman would be qualif ied to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specia lized understanding of the subject involved in the dispute.” Fed. R. Ev id. 702, Adv. Comm. Notes (quoting Mason Ladd, Expert Testimony , 5 V AND

. L. REV . 414, 418 (1952)). Accordingly, “[a] district court may commit manifest error by admitting expert test imony where the evidence impermissibly mirrors the testimony offered by fact witnesses, or the subject matter of the ex pert’s testimony is not beyond the ken of the average juror.” United States v. Amuso , 21 F.3d 1251, 1263 (2d Cir.), cert. denied , 513 U.S. 932 (1994).
In cases involving law-enforcement experts, we have interpreted this to mean that the district court, in performing its gatekeeping ro le, must assess whether, “without expert testimony,Nos. 14-2495/2512 United States v. Rios, et al. Page 6

the average juror is unlikely to understand” the material about which the expert proposes to testify. See United States v. Thomas , 74 F.3d 676, 682 (6th Cir.), cert. denied , 517 U.S. 1162 (1996), abrogated on other grounds by Morales v. Am. Honda Motor Co. , 151 F.3d 500, 515 (6th Cir. 1998). Law-enforcement expertise is therefore relevant when it imparts “evidence regarding the inner-workings of or ganized crime[, which] has been he ld to be a proper subject of expert opinion because such matters are ‘generally beyond the understanding of the average layman.’” United States v. Tocco , 200 F.3d 401, 419 (6th Cir. 2000) (quoting Thomas , 74 F.3d at 682). For example, an FBI Agent in a case about organized crime may properly give expert testimony “on the structure, the or ganization, [and] the rules” of the organized-crime entity. Id. at 418 (internal quotation marks omitted). Nor are we alone in condoning the use of such experts in prosecutions involving criminal organizations. See, e.g. , United States v. Kamahele , 748 F.3d 984, 998 (10th Cir. 2014) (gang-expert testimony was helpful to the jury where expert would provide “expertise about [the gang’s] structure, insign ia and history,” “[a] nd the district court could have assumed that a typical juror woul d lack knowledge of the gang terminology and the significance of [the] insignia”). Given the variation in practices among different gangs, a gang expert’s testimony on these relevant subjects is reliable only insofar as it is based on significant experience with the gang about wh ich the expert is testifying. See, e.g. , United States v.
Norwood , 16 F. Supp. 3d 848, 861–62 (E.D. Mich. 2014) ( noting that gang expertise “usually arises from the officer’s significant experience investigating a particul ar gang” and concluding that a proffered expert would be unreliable because the expert had not been involved with the specific gang at issue, or even the geographic region).
This straightforward theory of gang-experttestimony does not always play out in practice. “An increasingly thinning line separate s the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” Mejia , 545 F.3d at 190. District courts must ther efore remain vigilant to ensure that all of a lawenforcement expert’s testimony relates to issues that are “beyond the ken of the average juror.”
Amuso , 21 F.3d at 1263. Otherwise,
[i]f the officer expert strays beyond the bounds of appropriately ‘expert’ matters, that officer becomes, rather than a soci ologist describing the inner workings of aNos. 14-2495/2512 United States v. Rios, et al. Page 7

closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt. As the officer’s purported expertise narrows from ‘organized crime’ to ‘this particular gang,’ from the meaning of ‘capo’ to the criminality of the defendant, the officer’s testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide in understanding them. The officer expert transforms into the hub of the case, displacing the jury by conn ecting and combining all other testimony and physical evidence into a coherent, discernible, internally consistent picture of the defendant’s guilt.
Mejia , 545 F.3d at 190–91.

A related issue arises when the law-enforcement expert is also a fact witness in the case. This creates a “‘significant risk that the jury will be confused by the officer’s dual role,’” although we have refused “to adopt a per se prohibition of the practice.” Tocco , 200 F.3d at 418 (quoting Thomas , 74 F.3d at 682–83). One concern is “tha t a case agent who testifies as an expert receives ‘unmerited credibility’ for lay testimony.” United States v. Freeman , 498 F.3d 893, 903 (9th Cir. 2007) (quoting United States v. Dukagjini , 326 F.3d 45, 53 (2d Cir. 2003)). Alternatively, “the witne ss’s dual role might confuse the jury,” or “‘the jury may unduly credit the opinion testimony of an inves tigating officer based on a percep tion that the expert was privy to facts about the defendant not presented at trial.’” United States v. York , 572 F.3d 415, 425 (7th Cir. 2009) (quoting United States v. Upton , 512 F.3d 394, 401 (7th Cir. 2008)). To assuage these concerns, we have suggested that “the distri ct court and the prosecutor take care to assure that the jury is informed of the dual roles of a law enforcement officer as a fact witness and an expert witness.” Tocco , 200 F.3d at 418 (agent’s “dual roles were em phasized to the jury by the
fact that he testified at two different times” and “the district court instruct ed the jury, both before he gave his opinion and again in th e jury charge, that it should consider [the agent’s] dual roles in determining what weight, if any, to give [the] e xpert testimony”).
2. Bevacqui’s Testimony Was Relevant and Reliable.
This framework is easily applied to Bevacqui ’s expert testimony. The substance of the defendants’ attack on Bevacqui is that his knowledge about th e national Latin Kings does not bear on the Holland Latin Kings, maki ng it irrelevant and unreliable in this case. To be sure,Nos. 14-2495/2512 United States v. Rios, et al. Page 8

Bevacqui admitted that “[t]he first time that I heard about the Holland Latin Kings was through [a] telephone call” from the U.S. Attorney’s Office regarding this cas e. R. 936 (Tr. of Bevacqui Hearing at 22:9–21) (Page ID #7735). Thus, he w ould not have been a re liable expert on the
Holland Latin Kings. See Norwood , 16 F. Supp. 3d at 862 (“expert testimony has been rejected when the proposed expert witness lacked relevant experience with a particular group”). But Bevacqui did not purport to give opinion testim ony about the Holland Latin Kings. Rather, he opined about the nationwide Lati n Kings, and the government sought to make the link to the Holland Latin Kings through other testimony. In light of other testimony linking the Holland Latin Kings to the national organization, and show ing that the Holland Latin Kings shared with the national organization many of the characteristics Bevacqui discussed, Bevacqui’s testimony was appropriate “evidence regarding the inner-workings of organized crime,” Tocco , 200 F.3d at 419, including testimony similar to that we approved in Tocco regarding “the structure, the organization, the rules, the interp retation of phrases, and jargon that ’s been used in[the] trial,”
id. at 418. 1

3. Haglund Improperly Mixed Fact and Expert Testimony, and May Have Testified Outside the Scope of Rule 702. The application of the gang-expert legal fr amework is more complex with respect to Detective Haglund. Haglund’s testimony was larg ely either within th e appropriate scope of gang-expert testimony, as it focused on the traditional areas in wh ich a gang expert can testify—history, organization, and unique terminol ogy or symbols—or involved him testifying to specific facts and events he pe rsonally witnessed. But Haglund strayed into testimony that is potentially problematic when he testified about specific criminal actions, including: (1) drug dealing by the Holland Latin Kings and, for exam ple, his estimate that it was “a common thing for members to do,” R. 1233 (Trial Tr. Vol. 2 at 323:8–324:19) (Page ID #14467–68); (2) how the Holland Latin Kings obtained and utilized “nation guns,” id. at 329:4–330:2 (Page ID

1 The defendants’ other arguments on this issue go only to the weight, not the admissibility, of Bevacqui’s testimony. See Rios Appellant Br. at 24 (noting that much of Bevacqui’s knowledge came from work in New Jersey); Casillas Appellant Br. at 20 (discussing trial test imony that purportedly demonstrated that the link between the national Latin Kings and the Holland Latin Kings was weak). We must always take care not to “confuse[] the credibility and accuracy of [an expert’s] opinion with its reliability ”; “a determination that proffered expert testimony is reliable does not indicate, in any way, the correctness or truthfulness of such an opinion.” In re Scrap Metal , 527 F.3d at 529 (emphasis in original).Nos. 14-2495/2512 United States v. Rios, et al. Page 9

#14473–74); (3) his “experience” that the Holland Latin Kings commonly engage in violent disputes with other gangs, id. at 298:3–13 (Page ID #14442); and (4 ) the use of violence against those who steal drugs from the Holland Latin Kings, id. at 324:20–24 (Page ID #14468). Much of that information is well within the averag e juror’s ability to und erstand, making expert testimony unnecessary. See, e.g. , United States v. Garcia , 793 F.3d 1194, 1213 (10th Cir. 2015) (“[T]here is no sociological expertise in testifyi ng to gang members’ specific travels, specific uses of gang funds, or commi ssion of specific crimes.”), cert. denied , 136 S. Ct. 860 (2016). Using an expert to convey that informati on ran the risk that Detective Haglund would “transform[] into the hub of the case, displaci ng the jury by connecting and combining all other testimony and physical evidence into a coherent, dis cernible, internally cons istent picture of the defendant’s guilt.” Mejia , 545 F.3d at 190–91.
These aspects of Haglund’s testimony may have been proper if they were given in Detective Haglund’s capacity as a fact witness, based upon his actual experience with the investigation. If an expert also gives fact-witness testimony, hi s relaying of information that exceeds the scope of Rule 702 is not problematic if done in his capacity as a fact witness

. See id. at 196 (recognizing that an officer giving facts he personally investigated and separate expert opinions would not exceed the scope of Rule 702). In this case, it is difficult to parse what came from Haglund the expert and what came from Haglund the investigator because there was no
clear demarcation between his fact a nd expert testimony during the trial.
This confusion regarding the capacity in which Haglund was testif ying is independently problematic. The district court did not de lineate Detective Haglund’s testimony—and Haglund himself never distinguished between his fact and expert testimony. Haglund testified twice during the trial, but the bulk of his testimony came the first time (the second time, Haglund testified solely about his involve ment with a January 2011 traffic stop of Rios). Haglund’s main testimony touched on all aspects of the Holland Latin Kings’s structure, organization, history, and symbols, but also discussed more specific ev ents, some but not all of which he appears to have witnessed directly. This was problematic because “[s]eamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role
witnesses.” York , 572 F.3d at 426. The district court did not clarify the situation whenNos. 14-2495/2512 United States v. Rios, et al. Page 10

instructing the jury, stating onl y: “You’ve heard the testim ony of Kris Haglund from the Holland Police Department who testified both as a factand as an opinion witn ess. Each of these type of testimonies should be given the proper we ight.” R. 1274 (Trial Tr. Vol. 9 at 2147:12–24) (Page ID #17711). Nor did anyone e xplain that the jury could cons ider Haglund’s status as a key fact witness for the government in evaluating the credibility of hi s expert testimony. Accordingly, even if Haglund’s testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or e xplanation to the jury
was in error.
4. The Admission of Haglund’ s Testimony Was Harmless.
Any error—either the admission of some expe rt testimony that ex ceeded the scope of Rule 702 or the confusing mixing of Haglund’s expert and fact tes timony—was harmless. Although Haglund formed a key part of the intr oductory portion of the trial, much of his testimony was separately confirmed by witnesses who testified to the same or very similar facts. This was true of the testimony re garding specific criminal actions, 2 as well as much of Haglund’s overall discussion of the history, structur e, and operations of the Holland Latin Kings. 3 Accordingly, we cannot say on these specific facts that “it is more probable than not that the

2 Witnesses testified to the overall use of violence and drug distribution by the Holland Latin Kings, see, e.g. , R. 1233 (Trial Tr. Vol. 2 at 447:6–448:17, 457:13–458:7) (Page ID #14591–92, 14601–02), as well as the following particulars: (1) the use of nation guns by the Holland Latin Kings, id. at 456:20–457:12, 458:8–459:13 (Page ID #14600–03); (2) various specific acts of violence, including those related to drug dealing, R. 1236 (Trial Tr. Vol. 5 at 1129:7–1132:1, 1325:17–1329:1, 1349:16–1364:14) (Page ID #15278–81, 15474–78, 15498–15513); R. 1271 (Trial Tr. Vol. 6 at 1418:19–1420:16) (Page ID #16976–78); R. 1272 (Trial Tr. Vol. 7 at 1573:21–1578:5, 1603:12–1606:18, 1612:20–1613:25, 1756:25–1759:12) (Page ID #17133–38, 17163–66, 17172–73, 17316–19); and (3) the process by which the Holland Latin Kings distributed drugs, R. 1233 (Trial Tr. Vol. 2 at 462:14–22) (Page ID #14606); R. 1235 (Trial Tr. Vol. 4 at 892:21–904:25) (Page ID #15039–51); R. 1271 (Trial Tr. Vol. 6 at 1420:22–1457:10, 1507:10–1509:18) (Page ID #16978–17015, 17065–67); R. 1272 (Trial Tr. Vol. 7 at 1721:15– 1726:19 (Page ID #17281–86).
3 This included corroboration regarding: (1) the structure of the Holland Latin Kings, R. 1233 (Trial Tr. Vol. 2 at 467:22–468:16 (Page ID #14611–12); (2) the specific roles that Rios and Casillas played within the Holland Latin Kings, id. at 474:2–5 (Page ID #14618); R. 1234 (Trial Tr. Vol. 3 at 770:21–771:1) (Page ID #14915– 16); R. 1235 (Trial Tr. Vol. 4 at 788:9–20) (Page ID #14935); (3) the symbols, colors, and sayings utilized by the Holland Latin Kings, R. 1233 (Trial Tr. Vol. 2 at 455:23–456:12) (Page ID #14599–600); R. 1234 (Trial Tr. Vol. 3 at 570:20–571:4) (Page ID #14715–16); R. 1236 (Trial Tr. Vol. 5 at 1224:23–1225:3) (Page ID #15373–74); and (4) the ties between the Holland Latin Kings and the national organization, R. 1234 (Trial Tr. Vol. 3 at 512:2– 526:12) (Page ID #14657–71); R. 1235 (Trial Tr. Vol. 4 at 776:22–777:6) (Page ID #14923–24).Nos. 14-2495/2512 United States v. Rios, et al. Page 11

error materially affected the verdict.” United States v. Pritchett , 749 F.3d 417, 433 (6th Cir.) (internal quotation marks omitted), cert. denied , 135 S. Ct. 196 (2014).

B. Confrontation Clause
Rios and Casillas also argue that Bevacqui and Haglund based portio ns of their expert testimony on hearsay in violati on of the Confrontation Clause of the Sixth Amendment, which provides that “[i]n all criminal prosecutions, the accused shall enjoy th e right . . . to be confronted with the witnesses against him.” U.S. C ONST . amend. VI. The Supreme Court has interpreted the Clause to bar “admission of tes timonial statements of a witness who did not appear at trial unless he was unavailable to te stify, and the defendant had had a prior opportunity
for cross-examination.” Crawford v. Washington , 541 U.S. 36, 53–54 (2004). The Clause is in some tension with Federal Rule of Evidence 703, which permits an expert witness to base an opinion on inadmissible evidence “[i]f experts in th e particular field woul d reasonably rely on
those kinds of facts or data in forming an opinion on the subject.”

This conflict is not in surmountable. “[T]he Rule and the Clause can be r econciled if the expert exercises ‘independent j udgment’ in assessing and using the hearsay (and other sources) to reach an expert opinion.” Garcia , 793 F.3d at 1212 (quoting Kamahele , 748 F.3d at 1000). In general, then, “[a]n e xpert witness’s reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation.” United States v. Johnson , 587 F.3d 625, 635 (4th Cir. 2009). With law-enforcement experts, this line can be difficult to draw because they base their opinions on their experience, which often includes the interrogation of suspects and discussions with cooperating witnesses. When anexpert’s understanding of the inner workings of a criminal organization stems in significant part fr om such activities, courts have agreed that it is the process of amalgamating the potentially tes timonial statements to inform an expert opinion that separates an admissible opini on from an inadmissible transmissi on of testimonial statements. “If an expert simply parrots an other individual’s out-of- court statement, rath er than conveying an independent judgment that only incidentally discloses the stat ement to assist the jury in evaluating the expert’s opinion, then the expert is, in effect, disclosing that out-of-courtNos. 14-2495/2512 United States v. Rios, et al. Page 12

statement for its substantive truth.” United States v. Pablo , 696 F.3d 1280, 1288 (10th Cir. 2012); see also Kamahele , 748 F.3d at 1000 (phrasing the inquiryas whether the expert “simply parroted a testimonial fact learned from a particular interview”); United States v. Palacios , 677 F.3d 234, 243 (4th Cir.) (gang expe rt’s testimony did not violate Crawford , even though the expert’s views were based in part on discussion s with other officers and interviews with gang members and victims, because the expert’s testim ony “did not specifically reference any of these interviews”), cert. denied , 133 S. Ct. 124 (2012). That is notto say that a law-enforcement expert may simply avoid quoting a testimonial statement or identifying its source. In Mejia , for example, the Second Circuit drew the line at ga ng-expert testimony that discussed specific facts about the gang at issue when the expert had learne d the information from interviews. 545 F.3d at 198; see also Garcia , 793 F.3d at 1213 (“An important cons ideration in distinguishing proper testimony from parroting is the generality or speci ficity of the expert testimony.”). Thus, the
Confrontation Clause is concerne d with the use of experts to transmit particular testimonial statements, or their specific substance, to the jury. 4

Although Rios and Casillas assert that Bevacqui based his opinions in part on testimonial hearsay statements, they do not cite examples of the transmission of particular testimonial statements, noting only that Be vacqui must have based his expert opinion on testimonial

statements. See Rios Appellant Br. at 30–31; Casillas Reply Br. at 4. As discussed, however, merely basing an expert opinion on testimonial statements is not problematic. The defendants are more specific with regard to Detective Haglund, Rios Appe llant Br. at 30–31; Casillas Appellant Br. at 27, and the trial record ma kes clear that Haglund’ s expert opinion was influenced by hearsay in three ways: First, in discussing his history of investigating gangs in Holland, Detective Haglund testified that he “spoke to a lot of informants in an attempt to kind of understand what was going on in our community at the time,” and admitted to having “listen[ed] to jail conversations,” “read jail letters,” and “[ i]nterview[ed] people.” R. 1233 (Trial Tr. Vol. 2 at 290:4–15) (Page ID #14434). S econd, in discussing the “beating-out process”—when Latin

4 United States v. Reyes , 18 F.3d 65 (2d Cir. 1994), and Washington v. McDaniel , 230 P.3d 245 (Wash. Ct. App. 2010), rev. denied , 241 P.3d 413 (Wash. 2010), are not to the contrary. Reyes involved a law-enforcement officer who was testifying as a fact witness and relaye d a specific hearsay statement. 18 F.3d at 67, 69. McDaniel involved a situation akin to that described in Mejia , in which specific facts were tran smitted that were based entirely on a hearsay statement. 230 P.3d at 255–57.Nos. 14-2495/2512 United States v. Rios, et al. Page 13

King members physically beat a member who ha s chosen to leave the gang—Haglund indicated that he had “interviewed and seen people w ho went through that beating-out process.” Id. at 315:16–18 (Page ID #14459). Third, while describing the lengths to which Latin Kings go to protect their meetings from surveillance, Det ective Haglund talked about having “witness[ed] via video and audio recording a meeting in which strip-searches were done [of attendees].” Id. at 321:2–11 (Page ID #14465).
Detective Haglund’s mention of investiga ting gangs by intervie wing various people, listening to jail conversations, and reading letter s from jail likely involves potentially testimonial statements only insofar as th e interviews are concerned. See Ohio v. Clark , 135 S. Ct. 2173, 2182 (2015) (“Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial.”). For similar reasons, Detective Haglund’s view ing of surveillance of a Holland Latin Kings meeting likely does not pertain to a testimonial statement. Furthermore, Det ective Haglund’s general reliance
on interviews or other forms of testimonial statem ents to form his opinions does not itself violate the Confrontation Clause, which asks only whether he transmitted those statements or their specific substance to the jury.
The sole testimony cited by the defendants that may have done so was Detective Haglund’s relaying of the “beating-out process” ba sed upon interviewing Latin Kings about it.
He was asked whether he had interviewed some one who went through the process and then explained: “He was taken to a different locati on from where they were at originally and was beaten by several Latin Kings throughout the face, the body, and suffered injuries.” R. 1233 (Trial Tr. Vol. 2 at 315:22–24) (Page ID #14459). Th is implied directly that a specific individual told Detective Haglund about a specific event, and that Detective Haglund’s account of what occurred was based upon this indi vidual’s statement. This test imony violated the Confrontation Clause, but the violation was harmless because Mari o Herrera testified about the severity of the

same process. See id. at 453:23–455:2 (Page ID #14597–99). A lthough Haglund was discussing a particular incident, while Herrera’s testimony wa s more general, Haglund shared few details of the specific incident that differed fr om Herrera’s more general discussion.Nos. 14-2495/2512 United States v. Rios, et al. Page 14

C. Vargas’s Testimony Was Relevant
Rios argues that the testimony of Alexander Vargas—a former senior leader of the national Latin Kings—was irrelevant because it related only to Vargas’s activities with the Latin Kings in Chicago. Rios does not poi nt to a motion or objection made before the district court to exclude the entirety of Varg as’s testimony, so we may revi ew only for plain error. See United
States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en banc), cert. denied , 555 U.S. 816 (2008). Rios relies on Rule 403, which provides that “[t] he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Vargas’s testimony discussed the history, or ganization, symbols, and activities of the nationwide Latin Kings organization. Vargas painted a picture of the operations of the national Latin Kings, its links to local chapters, and th e various symbols, meth ods, and organizational details of the operation, which other witnesses then linked to the Holland Latin Kings. Vargas also testified to some direct linkages between the national Latin Kings and Latin Kings in Michigan. See R. 1232 (Trial Tr. Vol. 1 at 195: 18–197:10) (Page ID #14337–39) (describing how Vargas was once responsible fo r overseeing a region of Latin Kings that included Michigan
and that cocaine was then be ing sent to Michigan from Chicago, and also discussing a subsequent reorganization of th e Michigan-area Latin Kings); R. 1233 (Trial Tr. Vol. 2 at 226:25–232:1) (Page ID #14370–76) (discu ssing a time when another se nior leader of the Latin Kings went to Michigan to “appoint[] the leadership for Michigan,” as well as an incident when Michigan Latin Kings assisted inorganizing a Latin Kings chapter in Iowa). This testimony was probative in a manner similar to th at of Bevacqui: It helped prove the Indictment’s charge that “[t]he Holland Chapter of the Latin Kings . . . was and is overseen by, has always had connections to, and received direct ions from, the Chicago Heights, Illinois . . . Latin Kings.” R. 480 (Fourth Superseding Indictment at 5) (Page ID #2142). Vargas’s interactions with Michigan Latin Kings provided the added benefit of supplyi ng a basis for the jury to apply directly his knowledge of the national organi zation to the Latin Kings in Michigan. Nor was Vargas’s testimony unduly prejudicial. Although he descri bed the Latin Kings’s dr ug-related and violentNos. 14-2495/2512 United States v. Rios, et al. Page 15

activities, those activities were largely similar to the types of acts that we re discussed in detail involving the Holland Latin Kings.
D. Gang-Tattoo Evidence
At trial, the government relied heavily on ga ng-tattoo evidence to link members of the Holland Latin Kings to each other. Evidence was introduced regarding the kinds of tattoos that Latin Kings throughout the country generally ge t, R. 1232 (Trial Tr. Vol. 1 at 160:3–14, 198:15– 199:6) (Page ID #14302, 14340–41), as well as the particular tattoos that various members of the Holland Latin Kings had, R. 1233 (Trial Tr. Vol. 2 at 331:8–18, 350:1–352:13, 354:1–358:3, 359:16–360:25, 455:23–456:12) (Page ID #14475, 14494–96, 14498–14504, 14599–600); R. 1236 (Trial Tr. Vol. 5 at 1224:23–1225:3) (Page ID #15373–74). Finally, evidence was admitted
of the tattoos that Rios and Casillas have. See R. 1233 (Trial Tr. Vol. 2 at 366:20–371:3, 377:10–381:1) (Page ID #14510–15, 14521–26). Most prom inently, evidence showed that Rios had an intricate tattoo on his left bicep, which displayed a scale similar to the scales of justice.
See id. at 382:2–11 (Page ID #14526). On the lighter side of the scale was depicted “a cross and a book and . . . a rosary,” while the heavier side had a gun, “a bag with a dollar sign on it,” and packages that Detective Haglund te stified appeared to be similar in appearance to bricks of marijuana or cocaine. Id. at 382:12–383:9 (Page ID #14526–27).
Rios and Casillas moved pretrial to exclude th e tattoo evidence. See R. 840 (Rios Mot. to Exclude Tattoos) (Page ID # 5432–35); R. 841 (Cas illas Mot. to Exclude Tattoos) (Page ID #5436–37). The district court deniedthe motions, finding that the ta ttoos could be probative of affiliation with the Holland Latin Kings. See R. 881 (Jan. 16, 2014 Opinion at 2–3) (Page ID #6088–89). On appeal, Rios and Casillas contend th at this evidence is i rrelevant and unfairly prejudicial under Federal Rule of Evidence 403, which provide s that “[t]he court may exclude relevant evidence if its probative value is substa ntially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evid ence.” We review for abuse of discretion. See United States v. Boyd , 640 F.3d 657, 667 (6th Cir.), cert. denied , 132 S. Ct. 271 (2011).Nos. 14-2495/2512 United States v. Rios, et al. Page 16

Gang-affiliation evidence may be highly probati ve of an individual’s membership in a particular gang, so it “has been held admissibl e, in cases where the in terrelationship between people is a central issue.” United States v. Gibbs , 182 F.3d 408, 430 (6th Cir.) (quoting United
States v. Thomas , 86 F.3d 647, 652 (7th Cir. 1996)), cert. denied , 528 U.S. 1051 (1999). Where other evidence suggests that me mbers of a particular gang tend to have unique tattoos, gangtattoo evidence helps to identify an individual as a member. See United States v. Ford , 761 F.3d 641, 649 (6th Cir.) (gang-tattoo ev idence “is relevant because it demonstrates the relationship amongst the co-conspirators”), cert. denied , 135 S. Ct. 771 (2014); United States v. Alviar , 573 F.3d 526, 538 (7th Cir. 2009) (“the evidence of Latin King handshakes, symbols, colors, and tattoos tended to establish gang membership or affiliation, and it was proper for the government to prove gang membership as part of the conspiracy”), cert. denied , 559 U.S. 916 (2010).
When the existence of a conspiracy or rack eteering enterprise is not charged, however, the probative value of gang-membership evidence is often quite low. See, e.g. , United States v.
Irvin , 87 F.3d 860, 864 (7th Cir.) (evidence that two defendants in a drug-distribution case were members of the same gang was irrelevant wh en the defendants were not charged with a conspiracy because it was “not especially probativ e of whether they jointly ventured to distribute drugs, unless the motorcycle club is s hown to be involved with drugs.”), cert. denied , 519 U.S. 903 (1996). And there is a “substantial risk of unfair prejudice attached to gang affiliation evidence,” for “[g]angs genera lly arouse negative connotations and often invoke images of criminal activity and deviant behavior.” Id. at 864–65. Thus, we held th at the probative value of a gang-related tattoo depicting firearms was substantially outweighed by its prejudicial effect in a prosecution for unlawful possession of a firear m because, “[s]imply put, the fact that [the defendant] had a tattoo of a gun-wielding man or the words ‘thug life’ on his arm did not make it any more likely that he possessed the particular gun charged in the indictment on the day in question.” United States v. Newsom , 452 F.3d 593, 603 (6th Cir. 2006); see also United States v.
Thomas , 321 F.3d 627, 631 (7th Cir. 2003) (where the government had introduced evidence of a
defendant’s tattoo of “two revolve rs,” the Seventh Circuit “fail[ed ] to see how the . . . tattoo was admitted for any purpose other than to establish [the defendant’]s propensity to possess guns”).Nos. 14-2495/2512 United States v. Rios, et al. Page 17

The vast majority of the tattoo evidence that was introduced in this case was gardenvariety gang-membership evidence used to prove the affiliation of individuals with a charged racketeering conspiracy. Evidence demonstrated the types of symbols and sayings that were important to the Latin Kings and nearly all of th e tattoos that were discussed at trial were of those symbols or sayings. This evidence was hi ghly relevant because the case involved a RICO conspiracy charge, so the government was required to prove both the existence of a racketeering enterprise and each defendant’s asso ciation with that enterprise. See 18 U.S.C. § 1962(c)–(d). 5

A much closer issue is raised by Rios’s “scal e tattoo,” which appears to depict Christian religious symbols on a scale be ing outweighed by money, a handgun, and a “brick” of narcotics, R. 1233 (Trial Tr. Vol. 2 at 382:2–383:9) (Pag e ID #14526–27), and was never linked to Latin Kings membership. The government emphasized the tattoo during its closing argument:
Mr. Rios will tell you why he is guilty of th is crime. Look at his arm. These are scales, folks, that Mr. Rios has emblaz[o] ned on the inside of his arm. You see religious connotation on the left, and they’r e a little light and th e scale is tired. It’s worn out. It’s got a skull on the top. And then what is heavy? What is winning the battle? Guns, drugs, money. That’s how you know Antonio Rios is telling you he’s guilty.
R. 1274 (Trial Tr. Vol. 9 at 2030:17–25) (Page ID #17594). On appeal, the government argues that Rios’s tattoo showed “that Rios had competi ng interests in his life, and the criminal aspects were most important.” Appellee Br. at 47.
The government therefore treats the tattoo as expressive conduct—an admission by Rios that guns, drugs, and money are more important to hi m than religion. In that sense, the tattoo is more strongly linked to the charged activity—a racketeering conspiracy that itself engaged in gun crime and drug dealing. This can be a permissible use of tattoo evidence, as a recent
decision from the Second Circuit instructs. In United States v. Pierce , 785 F.3d 832 (2d Cir.),
cert. denied , 136 S. Ct. 172 (2015), the government introdu ced evidence that a defendant had a number of gang tattoos, includ ing one depicting the phrase “Y .G.K.,” which evidence showed stood for “Young Gunnaz Killer”—the “Young Gunnaz” being a rival gang, id. at 840. The

5 The fact that the defendants did not contest their membership in the Holland Latin Kings is irrelevant because “the prosecution is entitled to prove its case fre e from any defendant’s optio n to stipulate the evidence away.” Old Chief v. United States , 519 U.S. 172, 189 (1997).Nos. 14-2495/2512 United States v. Rios, et al. Page 18

government introduced this tattoo through photogra phs of the defendant “pointing a gun at his Y.G.K. tattoo,” which the government argued “indicat[ed] . . . his de sire to harm members of the Young Gunnaz.” Id. The Second Circuit found the tattoo ad missible “to help establish [the defendant’s] motive for violence against the Young Gunnaz.” Id. at 841. Thus, gang-tattoo evidence can serve a purpose other than proving th e affiliation between i ndividuals, when it functions as a potential admission by the individual.
We view Rios’s tattoo along similar lines, al though we find the inference weaker. The tattoo depicts a scale being weighed down by a fi rearm, drugs, and mone y. Thus, the message could be that guns, drugs, and mo ney were occupying a central role in Rios’s life. Such an “admission” is relatively broad when compared to an admission of a specific fact underlying the charged crime, so this is not nearly as probati ve as a photograph of a defendant pointing a gun at a tattoo that labels him a “Young Gunnaz Killer” in a prosecution that involved, among other things, violence against the Young Gunnaz. The pot ential for unfair prejudi ce in the form of a propensity inference also remains quite high as the tattoo is an el aborate depiction of firearms and drugs. We therefore hold that the scal e tattoo was improperly admitted under Rule 403. 6

As the government contends, however, the erro r was harmless because we cannot say that “it is more probable than not that the e rror materially affected the verdict.” Pritchett , 749 F.3d at 433. Rios’s tattoo was a relatively small piece of the case. To be sure, the government mentioned it during its closing argument, so this is not a case where a tattoo was referenced so fleetingly that harmlessness is clear. See Newsom , 452 F.3d at 602 (erroneously admitted evidence regarding a tattoo of a firearm was disc ussed only after a witness stated that she had never seen the defendant with a firearm, and then resulted in only “single response that she was not aware of any tattoos . . . de picting firearms,” which was “so attenuated an exchange in the context of the overall trial”). But neither is this a case where the government otherwise had

6 Casillas’s tattoo depicting the Spanish phrase that tr anslates to “I prefer to die standing than live kneeling,” R. 1233 (Trial Tr. Vol. 2 at 370:22–371:3) (Page ID #14514–15), was also not linked specifically to membership in the Latin Kings. The government used the tattoo in its closing statement to constitute an admission by Casillas: “I think you guys can conclude David Casilla s hates when people tell on him.” R. 1274 (Trial Tr. Vol. 9 at 2031:4–6) (Page ID #17595). As with Rios’s scale tattoo, this inference is relatively weak, although the prejudicial effect of admission of the tattoo is less clear. In any event, if admission of the tattoo was erroneous, it was harmless because it was at most tangentially relate d to the crimes with which Casillas was charged.Nos. 14-2495/2512 United States v. Rios, et al. Page 19

weak evidence on a specific factual point on which the tattoo could have pushed the jury over the
line. See, e.g. , Irvin , 87 F.3d at 866 (erroneous admission of gang tattoo in non-conspiracy drug case was not harmless where the government had minimal other evidence from which a jury could infer that a defendant had possession of drugs and the tattoo served to link the defendant to a co-defendant, whose association with the drug s was clearer). Extensive evidence linked Rios directly to the Holland Latin Kings and their drug trafficking and racketeering oper ations and to specific criminal events, so it is difficult to say that admission of Rios’s tattoo “contribute[d] to the verdict obtained” by inflaming the jury to find a link between Rios and guns and drugs.
Newsom , 452 F.3d at 602 (quoting United States v. Baldwin , 418 F.3d 575, 582 (6th Cir. 2005)). 7

E. Evidence of Actions of Other Holland Latin Kings
Casillas objects to the introduc tion of evidence regarding ra cketeering acts committed by members of the Holland Latin Kings other thanhimself and Rios, on the grounds that this evidence was unfairly prejudicial. He filed a mo tion in limine on the matter before the district court, R. 830 (Casillas Mot. to Exclude Unrelated Acts at 2–4) (Page ID #5379–81), which denied the motion, R. 898 (Jan. 27, 2014 Opinion) (Page ID #6469–70), so we review the district court’s Rule 403 analysis for abuse of discretion, see Boyd , 640 F.3d at 667.
On appeal, Casillas cites onl y two incidents that he clai ms were improperly admitted.
The first citation is to the fo llowing portion of the government ’s opening statement: “In 2011 there was another attempt[ed] murder, this time of Devon Ruff. It does not involve Defendant Rios or Defendant Casillas, but this is another example of what happens when somebody steals drugs from the Latin Kings.” R. 1232 (Trial Tr. Vol. 1 at 129:23–130:1) (Page ID #14271–72). The other incident cited by Ca sillas was a drive-by shooting conducted by Holland Latin Kings

7 Casillas also appeals the denial of his request to ban the use of the word “gang” during the trial, arguing that the term was used to his detriment. He does not cite specific uses of the word during trial that he now claims were prejudicial. In any event, we find no abuse of discretion in the district court’s decision. The general framework for the admission of gang-affiliation evidence applies to the analysis of the use of the term “gang” at trial. See United States v. Brown , 288 F. App’x 518, 523–24 (10th Cir.) (t erm should not have been used because “this is not a conspiracy case” and “there were no factual issues to be determined by the jury regarding defendant’s connections to alleged gang members”), cert. denied , 555 U.S. 959 (2008). Under that rubric, use of the term “gang” to describe the Latin Kings and the Holland Latin Kings was appropriate as the existence of the enterprise and conspiracy was very much at issue. At a minimum, it was not an abuse of discretion to allow the term to be used.Nos. 14-2495/2512 United States v. Rios, et al. Page 20

during a time when the two Holland chapters of the Latin Kings were fighting each other. See R. 1233 (Trial Tr. Vol. 2 at 493:1–496:7) (Page ID #14637–40).
The government rightly maintain s that a RICO conspiracy may be proven by utilizing the acts of others within the conspi racy. “Unlike a substantive RI CO charge, a RICO conspiracy charge does not require proof that the defendant committed any predicate acts” and “does not even require proof that the defendant ‘agreed to commit two predicate acts himself, or even that any overt acts have been committed.’” United States v. Fowler , 535 F.3d 408, 421 (6th Cir.) (quoting United States v. Saadey , 393 F.3d 669, 676 (6th Cir. 2005)), cert. denied , 555 U.S. 1060 (2008). In fact, the RICO conspiracy charge “m erely requires proof that the defendant ‘intended to further an endeavor which, if completed, would satisfy all of the elements of a substantive [RICO] criminal offense [and] it suffices that he adopt the goal of furthering or facilitating the
criminal endeavor.’” Id. (quoting Saadey , 393 F.3d at 676). The substantive RICO offense requires proof of “(1) the conduct (2) of an en terprise (3) through a pattern of racketeering activity,” Salinas v. United States , 522 U.S. 52, 62 (1997), and a “pattern of racketeering activity” will be found only upon proof of “at least two acts of r acketeering activity,” 18 U.S.C. § 1961(5).

Proof of the two incidents about which Casill as complains could therefore have sufficed to prove the necessary pattern of racketeering ac tivity. The Devon Ruff assault was done by multiple Holland Latin Kings, after an attack order had been issued on Ruff by leadership of the Holland Latin Kings because Ruff had stolen ma rijuana from a Holland Latin Kings member.
See R. 1271 (Trial Tr. Vol. 6 at1418:19–1420:16) (Page ID #16976–78) ; R. 1272 (Trial Tr. Vol. 7 at 1573:21–1578:5, 1612:20–1613:25) (Page ID #17133–38, 17172–73). The drive-by shooting, similarly, was retaliation during a time when the West Side and East Side chapters of the Holland Latin Kings “were beefing back and forth.” See R. 1233 (Trial Tr. Vol. 2 at 493:1– 496:7) (Page ID #14637–40). The incidents were therefore probative of the existence and contours of the Holland Latin Kings enterprise and of specific racketeering acts committed in support of that enterprise. Nor did the evidence have a significant unfair prejudicial effect. Evidence is not unfairly prejudicial because its “legitimate probative force” hurts a defendant’s case; rather, the question is wh ether the evidence “ten ds to suggest decision on an improperNos. 14-2495/2512 United States v. Rios, et al. Page 21

basis.” Gibbs , 182 F.3d at 429. To the extent that th e evidence could inflame the jury against Latin Kings as a whole and thereb y lead it to punish the defendants merely by virtue of their admitted membership in the Holland Latin Kings, that would be unfairly prejudicial, but many events involving equivalent violen ce were discussed during the tria l, and Rios and Casillas were alleged to have been involved in those events in their capacity as members of the Holland Latin Kings. Thus, the addition of the two incidents cited by Casillas created minimal prejudice, and the district court did not abuse its discretion in admitting them.
F. Evidence of Unindicted Acts by Casillas
Casillas next challenges the admission of evid ence of what he claims were improper “bad
acts evidence” under Federal Rule of Evidence 404(b) that also resu lted in either a constructive amendment of or prejudicial variance from the indictment. He menti ons three genres of evidence: (1) the story of a 1996 shooting; (2) the subsequent search of “a van that he was driving[,] and a statement that he made”; and (3 ) “his individual conduct while living in Texas.” Casillas Appellant Br. at 37. 8 In advance of trial, Casillas filed a motion to exclude evidence of the same episodes. See R. 1126 (Casillas Mot. to Exclude Unindicted Propensity Evidence) (Page ID #12760–64). In respon se, the government contended that all of the challenged evidence was intrinsic to the racketeering conspiracy. See R. 1127 (Gov’t Opp’n) (Page ID #12765–70). The district court de nied Casillas’s motion on the basis of the government’s argument why the evidence was part of the conspi racy, but noted that the government “ha[s] the burden of pro[ving] that it’s part of the conspiracy.” R. 1537 (Tr. of May 16, 2014 Motion Hearing at 7:22–8:1) (Page ID #21312–13). The fo llowing evidence was introduced at trial:

First , the government introduced testimony from Desidario Amaro, a fellow Holland Latin King, who described an incident in which individuals at a house party attacked a neighbor who complained about the noise caused by the party, and who later turned out to be a member of a gang from Grand Rapids. See R. 1234 (Trial Tr. Vol. 3 at 729:22–730:5) (Page ID #14874– 75). In retaliation, “[t]here was word that th ese guys from Grand Rapids were coming down to Holland to start a war with us,” which led the Holland Latin Kings to organize at a house the

8 Casillas challenges the admission a fourth type of evidence—that relating to a particular bar fight—but the government did not introduce evidence of the bar fight to which Casillas refers. See Appellee Br. at 77.Nos. 14-2495/2512 United States v. Rios, et al. Page 22

following night. See id. at 730:20–731:12 (Page ID #14875–76). The rival gang members showed up to that house “to start a fight with us, like they’re comi ng to start a war with us, so people started shooting at them,” id. at 731:21–23 (Page ID #14876), and Casillas fired a gun out of the house in the direction of the attackers, see id. at 679:4–680:20, 732:3–8 (Page ID #14824– 25, 14877).

Second , the government introduced evidence regardi ng its investigation of that shooting.
A detective encountered Casillas in a vehicle while on patrol the day after the shooting and pulled him over. See id. at 695:18–696:25, 697:9–21 (Page ID #14840–42). During a patdown, Casillas stated “[t]hose are my bullets” and the de tective felt what seemed to be ammunition in a pocket of a jacket that Casillas was holding. See id. at 699:1–700:10 (Page ID #14844–45).
Casillas then told the de tective that he had been at the house at the time of the shooting, and “that at one point there were some black guys who had come up to the house and he was walking
toward the front of the house when he s uddenly heard what was like a pop-pop-pop sound.” Id. at 701:10–702:1 (Page ID #14846–47). Casill as denied having fired a shot. See id. at 702:2–8 (Page ID #14847). Later, the van Casillas had b een driving was searched pursuant to a warrant, officers found “a black bag whic h contained four handguns,” id. at 703:19–704:6 (Page ID #14848–49), and Casillas took responsibility for “[e]verything in the van,” id. at 717:14–24 (Page ID #14862).

Third , a significant amount of evidence was intr oduced regarding Casillas’s activities in Texas. It is not clear from Casillas’s brief what evidence he is objecting to (he refers to it as
evidence of “his individual c onduct while living in Texas,” Casi llas Appellant Br. at 37). A
number of witnesses testified to a drug trafficking ope ration—headed by Casillas—that was
based in Texas and served both to sell drugs to individual users in Texas and also to provide a way of buying drugs wholesale at much cheaper Te xas prices and then shipping them to Holland
for distribution. See R. 1233 (Trial Tr. Vol. 2 at 497: 5–500:2) (Page ID #14641–44); R. 1235 (Trial Tr. Vol. 4 at 892:21–904:25) (Page ID #15039–51); R. 1271 (Trial Tr. Vol. 6 at 1421:11– 1449:21) (Page ID #16979–17007).Nos. 14-2495/2512 United States v. Rios, et al. Page 23

1. Rule 404(b)

Casillas claims that admission of this ev idence was improper under Federal Rule of Evidence 404(b)(1), which provides that “[e]vi dence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” “The Rule 404(b) inquiry cons ists of three parts”:
First, the trial court must make a pr eliminary determination as to whether sufficient evidence exists that the prior act occurred. Second, the district court must make a determination as to whether the ‘other act’ is admissible for a proper purpose under Rule 404(b). Third, the dist rict court must determine whether the ‘other acts’ evidence is more prejud icial than probative under Rule 403.

United States v. Mack , 258 F.3d 548, 553 (6th Cir. 2001). Th is framework “is not implicated when evidence of prior acts is ‘part of a continui ng pattern of illegal activity’ or is ‘inextricably
intertwined’ with the indicted crime.” United States v. McGee , 510 F. App’x 377, 381 (6th Cir. 2013) (quoting United States v. Barnes , 49 F.3d 1144, 1149 (6th Cir. 1995)). The district court’s
determination that the evidence was admissibl e is reviewed for a buse of discretion. See Mack , 258 F.3d at 553.
The acts were each part of the crimes with which Casillas was charged. The analysis is clearest with the “Texas evidence,” as Casillas was charged with conspiring to possess with the intent to distribute cocaine and marijuana during the time period in which the drug-related acts occurred. That evidence was directly probative of his guilt on the subject. The drug activity in Texas along with the 1996 shootin g and its aftermath are simila rly intrinsic to the charged racketeering conspiracy. Testimony suggested that the 1996 shooting incident began as part of a “war” between the Holland Latin Kings and a rival gang from Grand Rapids. See R. 1234 (Trial Tr. Vol. 3 at 729:22–731:23) (Page ID #14874–76). Ca sillas’s Texas trafficking activities were
also linked to the Holland Lati n Kings, as numerous members participated and were given discounted prices and drugs were shipped by Casi llas and others to be sold in Michigan. See R. 1235 (Trial Tr. Vol. 4 at 892: 21–904:25) (Page ID #15039–51); R. 1271 (Trial Tr. Vol. 6 at 1421:11–1449:21) (Page ID #16979–17007). These acts , then, were properly admitted as evidence of actions taken in furtherance of the RICO conspiracy. See United States v. Thai , 29 F.3d 785, 812–13 (2d Cir.) (evidence of unindic ted robberies committed by alleged membersNos. 14-2495/2512 United States v. Rios, et al. Page 24

of a RICO conspiracy that was charged with, among other things, a stri ng of similar robberies was intrinsic to the RICO conspi racy charge as “acts in furthe rance of the RICO conspiracy”),
cert. denied , 513 U.S. 977 (1994).

2. Constructive Amendment and Variance

Casillas also claims that the same evid ence worked a construc tive amendment to the indictment or, at a mini mum, constituted a prejudicial variance from the indictment . The district court denied Casillas’s pretrial motion claiming that a variance or constructive amendment would occur upon admission of the challenged evidence, holding that the government nonetheless would have the burden of proving that the acts about which Casillas complained were in fact part of the conspiracy. See R. 1537 (Tr. of May 16, 20 14 Hearing at 7:22–8:1) (Page ID #21312–13). We “evaluate[] claims of cons tructive amendments to or variances from
an indictment de novo .” United States v. Kuehne , 547 F.3d 667, 682 (6 th Cir. 2008), cert. denied , 558 U.S. 928 (2009).

Constructive amendments and variances are related issues that stem from the Fifth Amendment’s requirement that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. C ONST . amend. V.
“A constructive amendment ‘results when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which modify essential elements of the offense charged such that there is a subs tantial likelihood that the defendant may have been convicted of
an offense other than the one charged in the indictment.’” Kuehne , 547 F.3d at 683 (quoting United States v. Martinez , 430 F.3d 317, 338 (6th Cir. 2005)). “A variance ‘occurs when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment.’” Id. (quoting United States v. Prince , 214 F.3d 740, 756–57 (6th Cir. 2000)).
Casillas’s arguments fail because the evidence he challenges is intrinsic to the RICO and drug conspiracy charges. That some of the specif ic actions were not listed in the indictment as
additional overt acts in furtheranc e of the conspiracy or as othe r evidence of the existence of a conspiracy or RICO enterprise does not mean that their admission constituted an amendment or aNos. 14-2495/2512 United States v. Rios, et al. Page 25

variance. There is no requirement thata RICO conspiracy indictment allege any overt act, Salinas , 552 U.S. at 63, and even if proof of an overt act were required for conviction, it is a
“well-established rule . . . that the overt act el ement of a conspiracy charge may be satisfied by an overt act that is not specified in the indictment, at least so long as there is no prejudice to the defendant,” United States v. Salmonese , 352 F.3d 608, 619 (2d Cir. 2003). In any event, the evidence was quite similar to the specific overt acts of racketeering that were alleged in the
indictment. It therefore neith er created “a substantial likeli hood that the defendant may have
been convicted of an offense other than the one charged in the indictment,” as would be required for a finding that the indictment was constructively amended, Kuehne , 547 F.3d at 683 (quoting
Martinez , 430 F.3d at 338), nor supplied proof of actions that were “materially different from those alleged in the indictment,” as would be required for a finding that there was a variance, id. (quoting Prince , 214 F.3d at 756–57).
G. Rios’s Motion to Suppress

Next, Rios contests the districtcourt’s denial of his pretri al motion to suppress evidence
of the cocaine that was seized from his car on January 26, 2011. We summarize the relevant
facts:
In January 2011, Ralph Leal informed Detect ive Haglund “that Mr. Rios was trafficking narcotics within Holland city and that he would often make trips to Chicago or Detroit to obtain large amounts of cocaine and bring it back to Ho lland city and cut the cocaine up into larger amounts.” R. 918 (Tr. of Jan. 27, 2014 Moti on Hearing at 7:18–8:7) (Page ID #6973–74). Ralph Leal later told Detective Haglund “that [R ios’s then-girlfriend] Kandie Rodriguez just received a phone call from Antonio Rios and [R alph Leal] overheard a conversation that took place between Mr. Rios and Ms. Rodriguez.” Id. at 10:12–19 (Page ID #6976). The substance
of the conversation was “that Mr. Rios would be picking her up at 11:00 on the 25th of January” from the house Rodriguez and Leal shared, and th at they would be going to “get cocaine.” Id. at 11:19–12:12 (Page ID #6977–78).
Officers set up surveillance on the house and “ observed Mr. Rios pick Ms. Rodriguez up
from the residence.” Id. at 13:4–12 (Page ID #6979). As Ri os drove away, other officersNos. 14-2495/2512 United States v. Rios, et al. Page 26

observed him “travel[ing] eastbound on 16th Street towards U.S. 31.” Id. at 14:12–15 (Page ID #6980). Rios stopped at a gas station, at which poi nt officers became concerned that Rios had
noticed them. See id. at 14:16–15:4 (Page ID #6980–81). Offi cers therefore stopped tailing Rios, last seeing him traveling inthe direction of the highway that one would take to get from Holland to either Detroit or Chicago. See id. at 15:12–24 (Page ID #6981). Having lost track of Rios, investigators sought and obtained a warrant for “[a]ll subscriber information and real time precision location information for” Rios’s cell phone “for the next 2 days.” R. 852-1 (Search Warrant Aff. ¶ 2) (Page ID #5657).
Upon receiving their “first ping back” regard ing the cell phone’s location, investigators
learned that Rios was in Detroit. See R. 918 (Tr. of Jan. 27, 2014 Motion Hearing at 18:4–14) (Page ID #6984). They continue d to monitor Rios’s phone as itbegan to move back toward Holland the following morning. See id. at 21:24–23:3 (Page ID #6987–89). Investigators set up to intercept him and prepar ed a “K-9 unit” nearby. Id. at 23:4–11 (Page ID #6989). Rios was stopped after being observed speeding. See R. 852-1 (Police Incident Report) (Page ID # 5663). As soon as Rios was stopped, Haglund called the K-9 unit, R. 918 (Tr. of Jan. 27, 2014 Motion Hearing at 24:1–16) (Page ID #6990), which arrived between five and ten minutes later, id. at 42:10–23, 54:5–7 (Page ID #7008, 7020). The dog then quick ly alerted on the tailgate of the car,
id. at 54:16–21 (Page ID #7020), and officers found cocai ne in a hidden compartment in the car’s center console, see id. at 54:24–25, 57:13–25 (Page ID #7020, 7023).
Rios moved pretrial to suppress the cocaine. See R. 852 (Mot. to Suppress) (Page ID #5645–55). The district court held a heari ng on the motion on January 27, 2014, at which Detective Haglund and the K-9 officer testified. See R. 918 (Tr. of Jan. 27, 2014 Hearing) (Page ID #6967–7034). The district court later de nied Rios’s motion to suppress. See R. 909 (Jan. 31, 2014 Opinion) (Page ID # 6825–35).

1. Search Warrant to Track Rios’s Cell Phone
Although Rios jumps right to the analysis of wh ether the search warrant regarding his cell phone was supported by probable cause, he misses a key analytical step. We have already held
that individuals do not have a r easonable expectation of privacy in the real-time location dataNos. 14-2495/2512 United States v. Rios, et al. Page 27

that their cellular telephones transmit, making it unnecessary to obtain a warrant to obtain such
information. United States v. Skinner , 690 F.3d 772, 774, 777–80 (6th Cir. 2012), cert. denied , 133 S. Ct. 2851 (2013). Rios does not attempt to distinguish this case from Skinner , so his argument fails before it starts.
2. Traffic Stop of Rios’s Vehicle
Rios further argues that the cocaine seizedfrom his car should be suppressed because officers had reason to stop his vehicle only for speeding, making the extension of the traffic stop to include a dog sniff unr easonable. A stop of a vehicle “constitutes a seizure within the meaning of the Fourth Amendment,” and we “r eview[] the reasonablene ss of police conduct in effectuating a traffic stop under the principles set forth in Terry v. Ohio , 392 U.S. 1 (1968).” United States v. Stepp , 680 F.3d 651, 661 (6th Cir. 2012) (int ernal quotation marks omitted). “We first ask whether there was a proper basis for the stop.” Id. (quoting United States v. Davis , 430 F.3d 345, 354 (6th Cir. 2005)). “In order to e ffect a traffic stop, an officer must possess either probable cause of a civil infraction or reasonable suspicion of criminal activity.” United States v. Lyons , 687 F.3d 754, 763 (6th Cir. 2012). “If the stop was proper, we ask ‘whether the degree of intrusion was reasonably related in scope to the situat ion at hand, which is judged by examining the reasonableness of the officials’ conduct given their suspic ions and the surrounding
circumstances.’” Stepp , 680 F.3d at 661 (quoting Davis , 430 F.3d at 354). Thus, the Supreme Court recently held, “[a]uthority for” a stop occasi oned solely by a traffic -related violation “ends
when tasks tied to the traffic infraction are—or reasonably should ha ve been—completed.” Rodriguez v. United States , 135 S. Ct. 1609, 1614 (2015). This limitation does not apply when a dog sniff is prompted by reasonable suspicion of a separate crime. See United States v. Bah , 794 F.3d 617, 629 (6th Ci r.) (distinguishing Rodriguez in a case where “officers had reasonable suspicion to continue [a traffic stop]” base d upon information suggesting that other unlawful activity was afoot), cert. denied , 136 S. Ct. 561 (2015). Accordingl y, if law enforcement in this case had reasonable suspicion separate from the traffic violation, the extension of the stop to conduct a dog sniff may well be justified.
The investigators here had su ch reasonable suspicion. Ralp h Leal had provided specific information that Rios would be making a cocai ne run, and a number of informants hadNos. 14-2495/2512 United States v. Rios, et al. Page 28

corroborated background informati on regarding Rios’s involvemen t in drug trafficking. Those facts, along with the corroborati on of Ralph Leal’s specific ti p—but for relatively minor details like whether he was going to Chicago or Detroit wh en he was said to have cocaine sources in both cities—provided “a particulari zed and objective basis for suspecting” that Rios’s car was returning from Detroit with cocaine. Lyons , 687 F.3d at 763 (internal quotation marks omitted). Because the officers had reasonable suspicion of drug activity, the ten-minute delay between the beginning of the stop and the conclusion of the dog’s sniff was reasonable in scope. Accordingly, Rios’s motion to suppress was properly denied.
H. Hearsay Objections

Rios and Casillas each moved pretrial to preclude the admi ssion of “hearsay statements of alleged co-conspirators.” R. 833 (Mot. to Pr eclude at 1) (Page ID #5391). In response, the government requested that the motion be held in ab eyance because it “intends to make little or no use of the hearsay exception for co-conspirator statements.” R. 888 (Gov’t Opp’n at 1) (Page ID #6271). The district court held the motion in abeyance. See R. 911 (Jan. 31, 2014 Order) (Page ID #6837). On appeal, Casillas points to thr ee times when he claims that hearsay was improperly admitted. 9

1. Testimony of Agent Yandl
Special Agent Geoff Yandl testified about us ing a confidential info rmant to conduct a controlled buy of cocai ne from Casillas. See R. 1273 (Trial Tr. Vol. 8 at 1902:10–1909:13) (Page ID #17564–71). Yandl first te stified that he had “received information from a confidential informant that he could purchase powder cocaine . . . . from David Casillas” (“the First Statement”). Id. at 1903:9–17 (Page ID #17465). Agent Yandl then identified the informant as Rocky Solano and stated that after receiving th e tip, he and Detective Haglund “met with Mr. Solano and had him place a phone call to Mr. Casillas.” Id. at 1903:19–25 (Page ID #17465). Yandl was present during Solano’s telephone conve rsation with Casillas, but could hear only

9 Rios also objects to the admission of hearsay, but his brief contains only general statements about the trial. See Rios Appellant Br. at 52–54. Because Rios has not identified the testimony to which he objects, we analyze only the testimony cited by Casillas.Nos. 14-2495/2512 United States v. Rios, et al. Page 29

Solano’s side of the conversation. See id. at 1904:1–7 (Page ID #17466). The government then inquired as follows (“the Second Statement”):
Q: Did you instruct Mr. Solano to ask to purchase a certain amount of cocaine?
A: Yes. Q: All right. And did he in fact ask for that amount in his phone conversation? A: Yes, he did.

Id. at 1906:17–22 (Page ID #17468).
Federal Rule of Evidence 801(c)(1) defines in admissible hearsay as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” We have held that testimony describing a “tip” receive d by law enforcement is not offered for its truth when it serves to explain an officer’s subsequent actions. See United States v. Levy , 904 F.2d 1026, 1030 (6th Cir. 1990) (tip prompted officers to “l ook[] for a new, four-door yellow Cadillac on Ogden
Street” and was therefore “not o ffered to prove the truth of the informant’s remarks”; “[i]nstead, the officers’ testimony regarding the tip was offere d to show what they were looking for, and why”), cert. denied , 498 U.S. 1091 (1991). Under this auth ority, the First Statement, regarding Solano’s tip that he could purchase cocaine from Casillas, explains why Yandl orchestrated the operation in the first place. The Second Statement, Solano’s request that Casillas provide the
amount of cocaine Yandl instructed him to ask for, provides background for Yandl’s subsequent testimony about the particular amount of money he provided to Solano. See R. 1273 (Trial Tr. Vol. 7 at 1907:3–7) (Page ID #17469).
2. Testimony by Detective Haglund
Detective Haglund also testified to his use of confidential informant Rocky Solano, and specifically to an inci dent in which Solano contacted him about imminent violence between the Holland Latin Kings and a rival gang. See R. 1233 (Trial Tr. Vol. 2 at 389:15–391:16) (Page ID #14533–35). The questioning established that Ha glund was on “speaker phone” with Solano, so that he could hear what was going on around Solano. See id. at 390:21–391:9 (Page ID #14534– 35). Haglund testified as follows:Nos. 14-2495/2512 United States v. Rios, et al. Page 30

I heard discussion take place reference pick ing up a firearm. I heard several of the Latin Kings get shot at. I heard th em running, and then I heard them get picked up and go to two different residences , and then I heard them driving in the vehicle with several other Latin Ki ngs looking for rival gang members.

Id. at 391:11–16 (Page ID #14535).
Casillas’s argument on appeal is that “[t]he government di d not properly show that the co-conspirator’s hearsay met the requirements fo r admissibility.” Casillas Appellant Br. at 30– 31. As the government contends, the evidence was not admitted as a co-conspirator statement. Instead, like the other evidence i nvolving Solano, the brief statemen t that Solano ca lled “to alert” Haglund to the imminent violence, without the introduction of any specific content of that statement, served merely to explain how Hagl und happened to be on the line with Solano when shots rang out. 10

I. Jury Instructions
Rios and Casillas each challenge the distri ct court’s jury instruction regarding the
reasonable-doubt standard and its denial of their request for a unanimity instruction regarding the racketeering acts that were needed to show a pattern of racketeering activity under 18 U.S.C. § 1962(c). “We review the jury charge as a whol e to determine whether the charge fairly and adequately submits the issues and law to the jury.” United States v. Heath , 525 F.3d 451, 455– 56 (6th Cir. 2008). “‘A trial cour t has broad discretion in crafting jury instructions and does not abuse its discretion unless the jury charge fails accurately to reflect the law,’” so we “review challenges to a district court’s jury instruction for abuse of discretion.” United States v. Geisen , 612 F.3d 471, 485 (6th Cir. 2010) (quoting United States v. Ross , 502 F.3d 521, 527 (6th Cir. 2007)), cert. denied , 563 U.S. 917 (2011).

10 Casillas did not clearly challenge the admission of testimony from Mario Herrera regarding an incident in which a Holland Latin King shot at the home of a rival ga ng member. Casillas Appellant Br. at 30. Herrera learned about a shooting from conversations with other members of the Holland Latin Kings, and was asked at trial to give his “understanding of what happened.” R. 1234 (Trial Tr. Vol. 3 at 540:1–541:16) (Page ID #14685–86). To the extent that Casillas challenges that testimony on appeal, we find that the statements were admissible as statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E), which allows the admission of an otherwise-hearsay statement if: (1) “a conspiracy existed”; (2) “defendant wa s a member of the conspiracy”; and (3) “the declarant’s statement was made during the course an d in furtherance of the conspiracy.” United States v. Maliszewski , 161 F.3d 992, 1007 (6th Cir. 1998), cert. denied , 525 U.S. 1184 (1999). Herrera—a leader within the Holland Latin Kings— was part of the alleged RICO conspiracy and the information he learned about the shooting came from other Holland Latin Kings and related to the Holland Latin Kings’s conflict with a rival gang.Nos. 14-2495/2512 United States v. Rios, et al. Page 31

1. Reasonable-Doubt Instruction
Before the jury was instructed, Rios and Casill as objected to the district court’s proposed reasonable-doubt instruction, and asked that the Sixth Circuit Pa ttern Instruction be given.
See R. 1274 (Trial Tr. Vol. 9 at 1992: 18–21, 1994:23–24) (Page ID #17556, 17558). That
Instruction—which we have repeatedly approved, United States v. Hynes , 467 F.3d 951, 957 (6th Cir. 2006); United States v. Stewart , 306 F.3d 295, 306–07 (6th Cir. 2002), cert. denied , 537 U.S. 1138 (2003); United States v. Goodlett , 3 F.3d 976, 979–80 (6th Cir. 1993)—provides:
The government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, th e lack of evidence, or the nature of the evidence. Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.
Sixth Circuit Pattern Jury Instru ction ¶ 1.03. In response to Casill as’s request th at the Pattern Instruction be given, the district court stated:
Well, the 1.03 is the standard reasonable doubt one, and there are some terms in it that I have quarreled with. First of all, the Court is not bound to give them word for word. I have colleagues throughout the circuit and throughout the United States that I’ve talked to and they just wholesale change them. This has one about the presumption of inno cence and it talks about – where is it? Oh, proof beyond a reasonable doubt mean s proof that is so convincing you would not hesitate to rely on it or act on it in making, and the standard is the most important decision in your life. I guess I think that that’s a rubric that makes no sense. What is the most important d ecision? Who I marry ? What kind of a profession I go into? I mean, it doesn’t have any sense to it. So what I think is a much more sensible definition is making an important decision in your own life. Everybody knows what that means.
R. 1274 (Trial Tr. Vol. 9 at 1993:16–1994:7) (Page ID #17557–58).Nos. 14-2495/2512 United States v. Rios, et al. Page 32

The district court instructed the jury with a reasonable-doub t instruction that tracked the Pattern Instruction almost entirely, with the sole difference being that the district court told the jury that “[p]roof beyond a reasonable doubt mean s proof which is so convincing that you would not hesitate to rely and act on it in making an important decision in your own life,” id. at 2118:2–16 (Page ID #17682) (emphasis added), rather than the patte rn instruction’s “ the most important decisions in your own lives,” Sixth Circuit Patte rn Jury Instruction ¶ 1.03 (emphasis added). Rios and Casillas argue d that this reduced the government’s burden of proof because proof that might not produce hesitation while making “an important” life decision might be shaky enough that one would hesitate if the decision were among “the most important” life
decisions.

It is well-established that “[j]ury instructions concerning the presumption of innocence and proof beyond reasonable doubt are fundamental rights possessed by every citizen charged
with a crime.” United States v. Hill , 738 F.2d 152, 153 (6th Cir. 1984). This is so be cause “it is an elementary principle of due process that ev ery element of the crime must be proven by the prosecution beyond a reasonable doubt.” Caldwell v. Bell , 288 F.3d 838, 841 (6th Cir. 2002). Precisely how to instruct the jury regarding the reasonable-doubt standard is a matter of much dispute, however. Although it is mandatory that th e jury be told that the prosecution’s burden is to prove guilt beyond a reasonable doubt, Jackson v. Virginia , 443 U.S. 307, 320 n.14 (1979), “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course,” and also “does not require that any particular form of words be used in advising the jury of the government’s burden of proof,” Victor v. Nebraska , 511 U.S. 1, 5 (1994). The constitutional question is not whether the burden would be lowered at all

. A reasonable-doubt instruction will be problematic only if “there is a reasonable likelihood that the jury understood the in structions to allow conviction base d on proof insufficient to meet the Winship standard.” Id. at 6.

We cannot hold that there wa s such a likelihood here be cause the Supreme Court has approved of the use of language similar to that selected by the district court. See Wilson v.
United States , 232 U.S. 563, 570 (1914) (instruction stated “if you are in the frame of mind where, if it was a matter of importance to you in your own affa irs, away from here, you wouldNos. 14-2495/2512 United States v. Rios, et al. Page 33

pause and hesitate before acting, then you have a reasonable doubt”); 11 Hopt v. Utah , 120 U.S. 430, 439, 441 (1887) (approving language referring to “the more weighty and important matters relating to your own affairs” an d calling such language “as just a guide to practical men as can well be given”). Indeed, in critiquing an in struction that was give n by the trial court in Holland
v. United States , 348 U.S. 121, 140 (1954), the Supreme Court specifically cited a D.C. Circuit decision that phrased the standard in terms of “matters of importance.” See Bishop v. United
States , 107 F.2d 297, 303 (D.C. Cir. 1939) (“[Reasonable doubt] is not a vague, speculative, imaginary something, but just such a doubt as w ould cause reasonable me n to hesitate to act upon it in matters of importance to themselves.”). 12 Although this guidance l eads us to hold that
the district court’s instruction cannot be said to have created “a reasonable likelihood that the jury understood the instructions to allow conviction based on pr oof insufficient to meet the Winship standard,” Victor , 511 U.S. at 6, we stress that de partures from pattern instructions regarding the reasonable-doubt standard tend only to muddy the waters furthe r. “At worst such variations may be prejudicial to a defendant; at be st they add needlessly to the work of appellate courts while being of no real benefit to the jury.” United States v. Ivic , 700 F.2d 51, 69 (2d Cir. 1983), abrogated on other grounds by Nat’l Org. for Women v. Scheidler , 510 U.S. 249 (1994).

11 Casillas argues that Wilson is not persuasive because it addressed a standard instructing the jury to find reasonable doubt if the eviden ce was such that jurors would hesitate to act in a matter of importance, while the district court in this case instructed the jury to convict if the evidence was such that jurors would not hesitate to rely on it when acting in a matter of importance. The standards, however, are mirror images: Acquit if you would hesitate; convict if you would not. The effect of using the phrase “an important” versus “one of the most important” therefore affects the government’s burden in the same manner.
12 Other Circuits have approved similar instructions. See United States v. Shin , 560 F. App’x 137, 140 (3d Cir.) (approving a Third Circuit model instruction, which defi ned reasonable doubt as “a d oubt of the sort that would cause [an ordinary reasonable person] to hesitate to act in matters of importance in his or her own life”), cert. denied , 135 S. Ct. 244 (2014); Baker v. Corcoran , 220 F.3d 276, 292–93 (4th Cir. 2000) (approving an instruction that defined reasonable doubt as “requir[ing] such poof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reserv ation in an important matter in your own business or personal affairs,” and later used the phrase “t he more important matters of . . . life”), cert. denied , 531 U.S. 1193 (2001); Vargas v. Keane , 86 F.3d 1273, 1275, 1279–80 (2d Cir.) (approving an instruction that stated “using the same power of reasoning and power of thinking that would apply and do [sic] apply to weigh the importance of matters related to the [sic] important business affairs, if yo u then believe that each elemen t of the crime submitted to you[] has been established beyond a reasonable doubt, you would be justified in finding the defendant guilty of that crime”), cert. denied , 519 U.S. 895 (1996).Nos. 14-2495/2512 United States v. Rios, et al. Page 34

2. Unanimity Instruction
At the close of trial, the defendants requested that the court give “a unanimity instruction on either the specific acts or cat egories for the RICO charge.” R. 1274 (Trial Tr. Vol. 9 at 1992:25–1993:2) (Page ID #17556–57). The districtcourt denied this request, and the defendants argue that a unanimity instruction was required because the jury was required to be unanimous as to the specific overt acts, or at least as to the speci fic categories of overt acts, they found to establish the RICO conspiracy. But “a jury need not agree on which overt act, among several, was the means by which a crime was committed.” United States v. Sanderson , 966 F.2d 184, 187 (6th Cir. 1992). And the RICO conspiracystatute contains “no requirement of some overt act or specific act” at all. Salinas , 552 U.S. at 63. For that reas on, we have suggested that
“to convict a defendant of RICO conspiracy, the jury need not be unanimous as to the specific predicate acts that the defendant agreed someone would commit.” United States v. Wilson , 579 F. App’x 338, 347 (6th Cir.), cert. denied , 135 S. Ct. 421 (2014); see also, e.g. , United States
v. Cornell , 780 F.3d 616, 625 (4th Cir.), cert. denied , 136 S. Ct. 127 (2015); United States v.
Randall , 661 F.3d 1291, 1299 (10th Cir. 2011); United States v. Applins , 637 F.3d 59, 81–82 (2d Cir.), cert. denied , 132 S. Ct. 434 (2011). Accordingly, unanimity was not required as to the particular racketeering acts.
The defendants have a better argument regard ing the need for unanimity regarding the specific categories of acts the RICO conspiracy involved. Many decisions have held that the jury
must be unanimous “‘as to the types of predicate racketeering acts’ that someone would
commit.” Wilson , 579 F. App’x at 347 (quoting Randall , 661 F.3d at 1299). The Seventh Circuit disagrees, opining that the separate need to determine the scope of the conspiracy and for the racketeering acts to have been within that scope “determine s type”—i.e. that a unanimous finding that a defendant joined a particular conspiracy that subsumed an agreement to commit particular types of racketeering acts is enough because, in joini ng, one agrees to the types of racketeering acts that may be committed in furtherance of the conspiracy. United States v.
Schiro , 679 F.3d 521, 534 (7th Cir.), cert. denied , 133 S. Ct. 363 (2012). We need not resolve this disagreement, however, because the jury inthis case unanimously found the racketeering conspiracy responsible for at least five kil ograms of cocaine, R. 1197 (Verdict Form at 1–3)Nos. 14-2495/2512 United States v. Rios, et al. Page 35

(Page ID #1377–79), and thus necessarily was unanimous as to a type of rack eteering act that the conspirators had agreed would be committed in furtherance of the conspiracy, making any
instructional error harmless.

II. ANALYSIS – SENTENCING ISSUES

A. Standard of Review
“‘[A]ppellate review of sent encing decisions is limited to determining whether they are reasonable,’ and this reasonableness is reviewed ‘under an abuse-of-discretion standard.’” Penaloza , 2016 WL 2755180, at *1 (quoting Gall v. United States , 552 U.S. 38, 46, 51 (2007)).
“Sentences in criminal cases are reviewed for both procedural and subs tantive reasonableness,”
id. (quoting United States v. Morgan , 687 F.3d 688, 693 (6th Cir. 2012)), but Rios and Casillas raise only procedural challenges. Review for procedural reas onableness “requires that we ‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelin es range, treating the Guidelines as mandatory, failing to consider the [18 U.S. C.] § 3553(a) factors, selecti ng a sentence based on clearly erroneous facts, or failing to adequa tely explain the chosen sentence.’” Id. (quoting Gall , 552 U.S. at 51). “Undertaking this review, ‘[t]he district court’ s legal interpretation[s] of the Guidelines are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous.’” Id. (quoting United States v. Brooks , 628 F.3d 791, 796 (6th Cir. 2011)).

B. Antonio Rios
Rios’s sentencing range was dr iven by his conviction on CountFourteen, for conspiring to possess with the intent to distribut e five kilograms or more of cocaine. 13 His Presentence

13 Because Rios and Casillas were each convicted of mu ltiple counts, the calculati on of their sentences was based on the Multiple Count provisions of the Sentencing Guidelines. See U.S. S ENTENCING G UIDELINES M ANUAL ch. 3, pt. D (U.S. S ENTENCING C OMM ’ N 2014). “Those provisions provide th at the district court must first group counts into ‘Groups of Closely Related Counts’ pursuant to U.S.S.G. § 3D1.2, then ‘[d]etermine the offense level applicable to each Group by applying the rules specified in § 3D1.3,’ and finally ‘[d]etermine the combined level applicable to all Groups’ under § 3D1.4.” Penaloza , 2016 WL 2755180, at *2 n.1 (quoting U.S.S.G. § 3D1.1(a) (2013)); accord U.S.S.G. § 3D1.1(a) (2014). Rios’s calculation was driven by his cocaine-conspiracy conviction because it had the highest Offense Level, and § 3D1.4 directs that “[t]he comb ined offense level is determined by taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the [multiple-count adjustment applicable to the other Gr oups].” The sentencing calculations for Casillas proceeded similarly.Nos. 14-2495/2512 United States v. Rios, et al. Page 36

Report held him responsible for at least 15 but less th an 50 kilograms of cocaine, producing a
Base Offense Level of 32. See R. 1375 (PSR ¶ 1083) (Page ID #20711). Rios was scored a twolevel enhancement for possession of firearms pursuant to U.S.S.G. § 2D1.1(b)(1). See id. ¶ 1084 (Page ID #20711). He was scored another two-level enhancement for engaging in a pattern of criminal conduct as a livelihood under U.S.S.G. § 4B1.3. See id. ¶ 1085 (Page ID #20712). Finally, he was scored for another two-level enhancement for us ing or threatening violence, under U.S.S.G. § 2D1.1(b)(2). See id. ¶ 1086 (Page ID #20712). This left him with an Adjusted Offense Level of 38, which was increased by on e level due to a multiple-count adjustment under U.S.S.G. § 3D1.1, driven by the alleged assaul t with intent to murder Darryl Patton. See id. ¶¶ 1088–90 (Page ID #20712). Rios was then scored a three-level leadership enhancement under U.S.S.G. § 3B1.1(b) and a two-level enhancemen t under U.S.S.G. § 3C1.1 for obstructing justice by attempting to bribe Bobby Leal. See id. ¶¶ 1093–94 (Page ID #20712). The PSR placed Rios in a Criminal History Category of IV, which pro duced a guidelines range of life in prison when
combined with his Total Offense Level of 44. See id. ¶¶ 1097, 1124, 1156 (Page ID #20713, 20721, 20725).
At sentencing, the district c ourt overruled most of Rios’s objections, but agreed with his objection to the criminal- livelihood enhancement. See R. 1475 (Tr. of Nov. 14, 2014 Sentencing at 9:12–23, 10:22–11:9) (Page ID #21052–54). This placed Rios at a Total Offense Level of 42.
See id. at 29:21–23 (Page ID #21072). Rios then argued for a downward variance, and the district court granted a six-leve l downward variance to an Offense Level of 36 (guidelines range of 292–365 months), and sentenced Rios to 300 m onths with “credit for the 61 months that you have served already in this matter.” Id. at 47:3–10 (Page ID #21090). On appeal, Rios challenges the district court’s: (1) drug-quantity calculation; (2) application of a firearms enhancement; (3) application of an obstructio n-of-justice enhancement; and (4) multiple-count grouping.
1. Drug Quantity
At sentencing, Rios objected to the quantity of drugs for which he was being held responsible, noting that the jury convicted him of involvement with only five kilograms. See id. at 6:2–13 (Page ID #21049). The district court ove rruled this objection, pointing to estimatesNos. 14-2495/2512 United States v. Rios, et al. Page 37

based upon the testimony of Mario Herrera, Desidario Amaro, and Frank Cisneros. See id. at 8:11–9:10 (Page ID #21051–52). “We review for clear error the district c ourt’s factual findings on drug quantity attributable to a defendant for sentencing purposes.” United States v. Darwich , 337 F.3d 645, 663 (6th Cir. 2003). “When . . . th e precise quantity of drugs involved is uncertain, the district court mu st ‘err on the side of caution’ and may only hold a defendant accountable for a specific quantity for which he is more likely than not actually responsible.”
United States v. Johnson , 732 F.3d 577, 581 (6th Cir. 2013) (quoting United States v. Walton , 908 F.2d 1289, 1301 (6th Cir. 1990)).

The fact that Rios’s conviction was for an o ffense involving five k ilograms or more of cocaine is not dispositive of th is issue because there is no highe r threshold to charge under the Controlled Substances Act, 21 U.S.C. § 841(b), even though the Sentencing Guidelines recognize multiple categories above five kilogram s of cocaine, U.S.S.G. § 2D1.1(c) (2014). The jury’s precise findings may be a starting point, but “[a] defendantis responsible for all drug quantities that are includ ed within the scope of his ‘relevant conduct.’” United States v. Gill , 348 F.3d 147, 149 (6th Cir. 2003).
The district court’s finding th at Rios was responsible for at least 15 kilo grams was not clearly erroneous. Tria l testimony from Desidario Amaro placed the Holland Latin Kings’s annual cocaine trafficking involvi ng Rios’s Detroit source at a pproximately 18 kilograms over the course of several years. See R. 1271 (Trial Tr. Vol. 6 at 1508:21–1509:18) (Page ID #17066–67). Mario Herrera separately testified to Rios’s involvement with some of the trips Herrera made bringing cocaine from Texas to Michigan, totaling roughly another kilogram. See
id. at 1442:13–1445:10 (Page ID #17000–03). Finally, a pr offer from Frank Cisneros included in Rios’s Presentence Report made Rios responsible for cocaine coming from Chicago between
2008 and 2011. See R. 1375 (PSR ¶ 798) (Page ID #20670). Rios claims that some of the testimony regarding drug quantity came from th e same witnesses who provided testimony regarding the marijuana conspiracyof which Rios was acquitted, so “it was more important than ever for the district court to be very careful in attributing specific quantity amounts to trial witnesses.” Rios Appellant Br. at 56. Rios was c onvicted of the cocaine conspiracy based on some of that same testimony, however, and the mere fact that the jury might not have believedNos. 14-2495/2512 United States v. Rios, et al. Page 38

beyond a reasonable doubt everything that the government’s witnesses said is insufficient on its
own to overturn the district court’s cred ibility determinations at sentencing. See United States v.
Jeross , 521 F.3d 562, 570 (6th Cir. 2008) (“We ‘aff ord the district court's credibility determinations regarding witness te stimony great deference.’” (quoting United States v. Esteppe , 483 F.3d 447, 452 (6th Cir. 2007))), cert. denied , 555 U.S. 1176 (2009).

2. Use of a Firearm
Rios did not object at sentencing to the ap plication of a two-le vel enhancement under U.S.S.G. § 2D1.1(b)(1) (2014), but now argues that application of the enhancement was
erroneous because the district court sustained an objection to the very same enhancement in Casillas’s case. Ordinarily, “[ a] district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review.”
Darwich , 337 F.3d at 664 (quoting United States v. Bartholomew , 310 F.3d 912, 924 (6th Cir. 2002)). Where, as here, the defenda nt did not object to the enhancement before the district court, plain-error review applies, so Rios must “show (1 ) error (2) that ‘was obvious or clear,’ (3) that
‘affected defendant’s substantial rights’ and (4) that ‘affected th e fairness, integrity, or public reputation of the judicial proceedings.’” Vonner , 516 F.3d at 386 (quoting Gardiner, 463 F.3d at 459).
We discussed the legal framework applicable to the firearm enhancement in our Opinion regarding Rios’s co-defendants:
The firearm enhancement arises pursuant to U.S.S.G. § 2D1.1(b)(1), which provides that “[i]f a danger ous weapon (including a firearm) was possessed, increase by 2 levels.” The guideli ne contains no explanation of when the firearm must have been “possessed” or by whom. Application Note 11 to § 2D1.1 states 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,” and that Note has been interpreted to create a burden-shifting framework. “The government bears the burden of showing by a preponderance of the evidence that the defendant either ‘actually or constructively possessed the weapon.’” United States v. Darwich , 337 F.3d 645, 665 (6th Cir. 2003) (quoting United States v. Hough , 276 F.3d 884, 894 (6th Cir. 2002) ). Upon such proof, “a presumption arises that ‘the weapon was connected to the offense,’” and “[t]he burden then shifts to the de fendant to ‘show that it wa s clearly improbable that the weapon was connected with the crime.’” Id. (quoting Hough , 276 F.3d at 894).Nos. 14-2495/2512 United States v. Rios, et al. Page 39

The first step has prompted some confusion over when or where the defendant must have “posse ssed the weapon.” This conf usion is the product of a 1991 amendment to the Sentencing Guidelines, which removed a prior requirement that the weapon was “po ssessed during the commission of the offense.” United States v. Faison , 339 F.3d 518, 520 (6th Cir. 2003). After that amendment, we have interpreted § 2D1.1( b) to require that a firearm “was possessed” during anything that constitutes “relevant conduct” under U.S.S.G. § 1B1.3. Id. ; see also United States v. Clisby , 636 F. App’x 243, 246–47 (6th Cir. 2016). Under the 2013 version of th e Sentencing Guidelines . . . relevant conduct includes “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” as well as “all reasonably foreseeable acts and omissi ons of others in furtherance of the jointly undertaken criminal activity,” either of which must have “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Id. § 1B1.3(a) (2013). 14 Once it is established that a firearm was possessed during relevant conduct, the presumption discussed in Darwich arises, subject to the defendant’s ability to show that a c onnection to a drug offense was clearly improbable. See Clisby , 636 F. App’x at 247.

Penaloza , 2016 WL 2755180, at *6–7.
The government cites numerous instances when Rios possessed a weapon during the course of the 2006–2012 cocaine conspiracy. See R. 1375 (PSR ¶¶ 306–07, 310, 449–50, 478, 843, 1054–56, 1064–66, 1068–70, 1072–73) (Page ID # 20590–91, 20608–09, 20614, 20677, 20708–10). Because these events occurred during the course of the charged conspiracy, and were shown to have been related to the operation of the Holland Latin Kings, “a presumption arises that ‘the weapon[s] w[er e] connected to the offense.” Darwich , 337 F.3d at 665; see also Penaloza , 2016 WL 2755180, at *7 (evi dence of firearms possess ion during the period of a marijuana conspiracy, combined with evidence linking the possession to protection of the overall Holland Latin Kings enterprise—which had drug tra fficking as a main object—was sufficient to give rise to the Darwich presumption). Rios has not attempted to rebut that presumption, and the district court’s finding that there was a lack of evidence connecting Casillas’s possession of
firearms to Casillas’s offense does not do the trick. We ther efore affirm the application of the
firearms enhancement.

14 The 2014 version applicable to Rios’s sentencing is identical. See U.S.S.G. § 1B1.3(a) (2014).Nos. 14-2495/2512 United States v. Rios, et al. Page 40

3. Obstruction of Justice
At sentencing, Rios objected to the application of an obstruction-of -justice enhancement, which the PSR applied because Rios “offered to pay for [Robert] Leal’s medical expenses in
return for Mr. Leal’s refusal to testify in the state court matter” arising out of the attack on Leal by Rios and other Holland Latin Kings at th e Chanclazo Club in 2010. R. 1375 (PSR ¶ 1094) (Page ID #20712). Rios argued at sentencing that Leal “is so gr ossly incredible from start to finish, and of course Mr. Rios was acquitted of the assault. ” R. 1475 (Tr. of Nov. 14, 2014 Sentencing at 11:14–23) (Page ID #21054). The di strict court overruled the objection, finding
Leal credible. See id. at 20:16–19 (Page ID #21063). “We reviewthe district c ourt’s findings of fact for clear error, but determine de novo ‘whether specific facts actually constitute an obstruction of justice.’” United States v. Kamper , 748 F.3d 728, 744 (6th Cir.) (quoting United States v. Bazazpour , 690 F.3d 796, 805 (6th Cir. 2012)), cert. denied , 135 S. Ct. 882 (2014).
The obstruction-of-justice enhancement applies “[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sent encing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offe nse of conviction and any relevant conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1 (2014). We have found the enhancement appropriate upon evidence that a de fendant sought to suppress witness testimony.
See United States v. Moss , 9 F.3d 543, 554 (6th Cir. 1993) (indi vidual testified “to the alleged solicitation of him by [the defe ndant] to bribe a witness”).
Rios’s argument is that because he was acqui tted of assaulting Leal with the intent to murder him, Leal’s testimony was rejected by the jury and the district court needed to “make a specific finding regarding Leal’s general credibility that would support the enhancement.” Rios Appellant Br. at 57. But Rios’s acquittal wa s (1) under the reasonable-doubt standard (2) for assaulting Leal with the intent to kill him. That has little bearing on whether (1) under the preponderance-of-the-evidence stan dard (2) Rios sought to bribe Leal into not reporting the assault to the police. The distri ct court did not clearl y err in relying on Le al’s testimony that he was severely beaten by Rios and other Holland La tin Kings in 2010, R. 1236 (Trial Tr. Vol. 5 at 1350:14–1359:15) (Page ID #15499–15508), and that he was contac ted by Holland Latin KingsNos. 14-2495/2512 United States v. Rios, et al. Page 41

after the attack, first by Mario Herrera, who offere d Leal money not to go to the authorities, and then by Rios, who asked “if I needed anything, some money or whatever, he’d give me some money” and offered approximately $10,000, id. at 1362:7–1364:14 (Page ID #15511–13). This finding was also supported in part by Herrera’s testimony at trial that Rios planned to “let [Leal] know to pay the hospital bills, help him out would be fine” in orde r to get Leal not to testify. See R. 1271 (Trial Tr. Vol. 6 at 1417:21–1418:1) (Page ID #16975–76).
4. Offense Grouping
Finally, Rios objected to the Presentence Repo rt’s treatment of the Darryl Patton assault as relevant conduct, although his attorney ch aracterized it as one of many “non-scoring” objections. See R. 1475 (Tr. of Nov. 14, 2014 Sentencing at 22:21–23:12) (Page ID # 21065– 66). The government agreed at sentencing that the objection did not affect the guidelines calculation, id. at 25:23–25 (Page ID #21068), and the district court found by a preponderance of the evidence that the Patton assault was an assault with intent to murder, id. at 26:21–24 (Page ID #21069). Rios now argues that, because he was acq uitted of assaulting Patton with the intent to commit murder and the government did not offe r additional proof at sentencing, the district court’s finding that the assault o ccurred was erroneous. Rios rec ognizes that the Patton assault actually added one level to his Total Offense Le vel, under the procedures for grouping multiple counts of U.S.S.G. §§ 3D1.1–4 (2014). This is so because the Patton assault was scored as an
assault with intent to commit murder under U.S.S.G. § 2A2.1(a )(2) (2014), causing the Adjusted Offense Level applicable to Count One—th e racketeering cons piracy—to be 31. See R. 1375 (PSR ¶¶ 1072–74) (Page ID # 20710). This meant that, although Rios’s se ntencing calculation was driven by Count Fourteen, one level was a dded to that calculation as a multiple-count adjustment. See id. ¶¶ 1088–90 (Page ID #20712).
However appealing Rios’s argument may seem, a RICO defendant who is acquitted of a specific racketeering act under a special senten cing allegation may nonetheless be sentenced based upon that very same act if the defendant is convicted of the overall RICO conspiracy. That
is because the incident of wh ich the defendant was acquitted may remain relevant conduct under U.S.S.G. § 1B1.3 (2014). “[I]n determining rele vant conduct, a court may consider a broad range of information, including uncharged crimes , crimes where charges have been dismissed,Nos. 14-2495/2512 United States v. Rios, et al. Page 42

and crimes for which the defendant has been acquitted.” United States v. Redmond , 667 F.3d 863, 875 (7th Cir. 2012). Thus, Rios’s objection cannotrest solely on the fa ct of his acquittal.
The acquittal is not irrelevant, how ever, and it ties in to Rios’s claim that the district court committed clear error in finding that Rios had assaulted Darryl Patton with the intent to commit murder. The district court’s findings on this point were terse. Al though it engaged in an extensive discussion with Rios’s attorney regardi ng this and other assaults that were treated as relevant conduct, noted that the preponderance- of-the-evidence standard provided a very different circumstance for evaluating the eviden ce than the reasonable-doubt standard the jury applied, and reminded Rios’s attorney that ther e “was sworn testimony” on the subject during the trial, its conclusion that the Patton assault was an assault with the intent to murder was vague: “I agree there is testimony on the record as to these, not only at tria l, but there has been significant documentation that would suggest that these have been at least by a pr eponderance of evidence shown.” R. 1475 (Tr. of Nov. 14, 2014 Sent encing at 26:21–24) (Page ID #21069). Nonetheless, “[e]ven if the district judge does not make detailed findings as to these supporting facts [regarding § 2A2.1], the Court of Appeals need not remand the case; we may look to the
record to determine whether the distri ct judge’s decision was clear error.” United States v. Vaught , 133 F. App’x 229, 233 (6th Cir. 2005).
We set forth the legal framework for the assa ult-with-intent-to-murder Guideline in our Opinion regarding the appeals of Rios’s co-defendants:

Section 2A2.1 of the Sent encing Guidelines provides for a Base Offense Level of: “(1) 33, if the object of the o ffense would have constituted first degree murder; or (2) 27, otherwise.” U.S.S.G. § 2A2.1(a) (2013). 15 Application Note 1 to § 2A2.1 define s “first degree murder” by reference to 18 U.S.C. § 1111(a), which provides: Murder is the unlawful killing of a human being with malice aforethought. Every murder perpet rated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggr avated sexual abuse or sexual abuse, child abuse, burglary, or robb ery; or perpetrate d as part of a

15 The 2014 version applicable to Rios’s sentencing is identical. See U.S.S.G. § 2A2.1(a) (2014).Nos. 14-2495/2512 United States v. Rios, et al. Page 43

pattern or practice of assault or to rture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.

Penaloza , 2016 WL 2755180, at *20. Both types of murder therefore require a finding that the
individual acted “with malice aforethought,” see United States v. Conatser , 514 F.3d 508, 523– 24 (6th Cir. 2008); United States v. Milton , 27 F.3d 203, 206 (6th Cir. 1994), which we will find “when the defendant grossly deviat es from the standard of care to such an extent that a jury
could conclude that he must have been aware of a serious risk of death or serious bodily injury.”
United States v. Snowden , 602 F. App’x 294, 296–97 (6th Cir. 2015) (quoting Conatser , 514 F.3d at 523); see also United States v. Morgan , 687 F.3d 688, 697 (6th Cir. 2012) (describing the requirement as proof of “specifi c intent to kill”). The first-degree murder guideline—U.S.S.G. § 2A2.1(a)(1)—also requires “proof of premeditation and deliberation,” Penaloza , 2016 WL 2755180, at *20 (quoting United States v. Wilson , 992 F.2d 156, 158 (8th Cir. 1993)), but premeditation is not required fo r the application of U.S.S.G. § 2A2.1(a)(2),

see United States v. Murillo , 526 F. App’x 192, 195 (3d Cir. 2013) (“An offender commits or attempts second-degree murder if he acts with malice aforethought—the sp ecific intent to kill— but not premeditation.”). “We ‘review the district court’s factual findings supporting the attempted-murder Guideline under the cl ear-error standard of review.’” Penaloza , 2016 WL 2755180, at *20 (quoting Morgan , 687 F.3d at 696).
The incident was discussed extensively at trial. On November 21, 2009, Darryl Patton was at the S Nightclub. See R. 1235 (Trial Tr. Vol. 4 at 1024:5–17) (Page ID #15171). He had been drinking, but not so much that he could not remember what happened. See id. at 1024:22– 1025:3 (Page ID #15171–72). Patton was involved in a fight with various members of the Holland Latin Kings in the club’s parking lot. See id. at 1025:11–1026:1 (Page ID #15172–73). During the fight, he was stabbe d in the chest, but could not identify his attacker. See id. at 1026:5–1027:19 (Page ID #15173–75). At the hospital, Patton was found to have a partially collapsed lung and a broken rib, which his trea ting physician testified could have been life-Nos. 14-2495/2512 United States v. Rios, et al. Page 44

threatening had the lung collapsed further. See R. 1236 (Trial Tr. Vol. 5 at 1069:21–1071:10) (Page ID #15218–20).

One of the club’s bouncers testifie d that he had seen Rios fi ghting Patton and that Patton was stabbed immediately thereafter. See R. 1235 (Trial Tr. Vo l. 4 at 1036:19–1038:13, 1039:22–1040:19) (Page ID #15183–87). Soon after th e stabbing, other bounc ers wrestled and detained a Latino man—ultimately identified by responding police as Rios—after he swung a
knife at another bouncer. See id. at 1040:14–19, 1045:24–1048:4, 105 0:8–1051:16 (Page ID #15187, 15192–95, 15197–98). Police who responded to the scene noticed that Rios had blood on his t-shirt and shoe; they interviewed Rios after reading him his Miranda rights, and Rios admitted to having been part of a fight. See id. at 1053:21–1057:11 (Page ID # 15200–05). The bouncer who had helped detain Rios informed a re sponding officer that Rios also had been “the one who had the knife.” R. 1236 (Trial Tr . Vol. 5 at 1084:16–1085:22) (Page ID 15233–34). Finally, Mario Herrera testified th at Rios later told him about th e stabbing—including Rios’s role in it—and explained that “the incident had escalated,” begi nning with someone having been disrespected. See R. 1271 (Trial Tr. Vol. 6 at 1412:18–1413:24) (Page ID #16970–71).
The testimony reveals a brutal assault with a knife and sup ports a finding that Rios was the one who stabbed Patton. Specific intent to kill may be inferred from Rios’s decision to stab
Patton in the chest in the midst of a fight. See, e.g. , United States v. James , 575 F. App’x 588, 596–97 (6th Cir. 2014) (specific intent to kill infe rred from evidence that the defendant fired a gun while aiming at a particular individual); Murillo , 526 F. App’x at 195–96 (specific intent to
kill could be inferred from the defendant’s decision to fire a rifle “directly at a group of people” immediately after suffering “a vicious assault” by th at group). At a mini mum, it was not clearly
erroneous to find that Rios acted with such intent.

C. David Casillas
In his Presentence Report, Casillas’s sent encing range was drivenby his conviction on Count Fourteen, for conspiring to possess with the intent to distribute five kilograms or more of cocaine. The Presentence Report held him responsible for at least 15 but less than 50 kilograms of cocaine, producing a base offense level of 34 pursuant to U.S.S.G. § 2D1.1(c). See R. 1369Nos. 14-2495/2512 United States v. Rios, et al. Page 45

(PSR ¶ 1013) (Page ID #20488). Ca sillas was scored a two-level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1), id. ¶ 1014 (Page ID #20488) , and another twolevel enhancement for using violen ce, under U.S.S.G. § 2D1.1(b)(2), see id. ¶ 1015 (Page ID #20488). Finally, Casillas was scored another two- level enhancement for engaging in a pattern
of criminal conduct as a livelihood. See id. ¶ 1016 (Page ID #20488). This left him with an adjusted offense level of 40, which was incr eased by two levels due to a multiple-count adjustment under U.S.S.G. § 3D1.1. See id. ¶¶ 1019–22 (Page ID #20489). Casillas was then
scored a four-level l eadership enhancement under U.S.S.G. § 3B1.1(a). See id. ¶ 1023 (Page ID #20489). The PSR assessed Casillas a Criminal Hist ory Category of III, a Total Offense Level of 46, and a guidelines range of life in prison. See id. ¶¶ 1027, 1048, 1095 (Page ID #20489, 20495, 20506).
At sentencing, the district court applied th e two-level reduction of Amendment 782 to the Sentencing Guidelines, granted Casillas’s objection to the two- level firearm enhancement, and granted in part Casillas’s objecti on to the four-level leadership enhancement, holding that a twolevel enhancement more appropriately fit Casillas’s role. See R. 1476 (Tr. of Nov. 14, 2014 Sentencing at 15:13–16:2, 29:4–30:10, 35:13–18) (Page ID #21109–10, 21123–24, 21129).
These decisions had the effect of lowering the Adjusted Offense Le vel for Count F ourteen to 36, which was lower than the 37 applicable to Count One—the RICO conspira cy. For that reason, Count One ultimately drove the calculation of Cas illas’s sentence. The ra cketeering conspiracy
was scored at a Base Offense Level of 33 due to relevant conduct regard ing the assault on Luis Olivares, which was scored as anassault with intent to murder under U.S.S.G. § 2A2.1(a)(1).
See R. 1369 (PSR ¶ 1003) (Page ID #20487). Pursuant to U.S.S.G. § 2A2.1(b)(1)(A), a fourlevel enhancement was applied due to the perman ent or life-threatening bodily injuries suffered by Olivares. Id. ¶ 1004 (Page ID #20487). That was then adjusted upward by two levels due to a multiple-count adjustment under U.S.S.G. § 3D1.1, id. ¶ 1019 (Page ID #20489), and two
additional levels were added for a role enhancement under U.S.S.G. § 3B1.1. This placed
Casillas at a Total Offense Level of 41 with a range of 360 months to life. See R. 1476 (Tr. of Nov. 14, 2014 Sentencing at 47:22–25) (Page ID #21141) . The district court sentenced him to 360 months, with “148 months” to “be subtracted” due to credit for prior state sentences “for Holland Latin King-related acts.” Id. at 65:18–5 (Page ID #21159). On appeal, Casillas objectsNos. 14-2495/2512 United States v. Rios, et al. Page 46

to the district court’s: (1) scoring of an assaul t with the intent to commit murder; (2) application
of the criminal-livelihood enhancement; and (3) drug-quantity calcu lation. Because we affirm the district court on the first issue, we need not reach the latter two, which relate to the sentencing calculation for Count Fourteen and woul d therefore affect Casillas’s sentence only if
we were to reverse on the assault with the intent to commit murder. 16

Casillas objected to the scoring of the assaul t on Luis Olivares as an assault with the
intent to commit murder. See id. at 16:16–18:10 (Page ID #21110–12). The district court denied Casillas’s objection to scoring the Olivares assau lt as an assault with intent to murder with the following findings:
I think by a preponderance of the evidence one has to conclude that the nature of that beating under those circumstances c ould have and would have resulted in death had it continued because of the reckless disregard for the life of the individual on the ground. Now, that’s almost as much as saying an intent to kill, certainly reckless disregard for the life of another pers on. I think it should stand. I think it should stand. Intent to murder is a flexible term, and I think there’s sufficient testimony to let that stand. Now, it always has to be – very rarely does a murderer announ ce their intention to kill and how they’re going to do it. That ’s just not the way things are done. So therefore, I think it should stand. I think it should st and. It’s a close question. Obviously, everything’s objected to in this case, so that will be able to be scrutinized as well. But I think the one individual who did give pretty clear testimony on it is entitled to certain defe rence as to what he heard when others didn’t make any comment about it.

Id. at 24:8–25:2 (Page ID #21118–19). Casillas claims that these findings erroneously treated the enhancement as requiring onlythat he acted recklessly.

As discussed in Part II.B.4, supra , scoring of an assault with intent to commit murder is appropriate “if the object of the offense would have constituted first degree murder.” U.S.S.G. § 2A2.1(a)(1) (2014). The guideline is applicab le only upon “a finding of the specific intent to kill,” Morgan , 687 F.3d at 697, and generally requires “pro of of premeditation and deliberation,”

16 Although Count Fourteen remained relevant to the calculation of a multiple-count adjustment that was applied, the same two-level multiple-count adjustment would still apply even if Casillas’s two objections were granted.Nos. 14-2495/2512 United States v. Rios, et al. Page 47

Wilson , 992 F.2d at 158; see also Christian , 404 F. App’x at 993. “We review the district court’s factual findings supporting the attempted-murder Guideline under the clear-error standard of
review.” Morgan , 687 F.3d at 696.

The district court did not clea rly err when it found that Casilla s had the intent to murder
Olivares. Unlike the Patton assault discussed in connection withRios’s sentence, there was significant evidence of prior pl anning by Casillas. Testimony suggested that Rios was upset because Olivares had previously stolen cocaine from him. See R. 1235 (Trial Tr. Vol. 4 at 849:7–850:1) (Page ID #14996–97). Sometime later, Olivares was in a truck parked near Casillas’s home, when Casillas “walk[ed] off toward the truck.” Id. at 908:25–909:13 (Page ID #15055–56). By the time that Dusty Ray Howell—one of Casillas’s drug-trafficking partners— could walk to the truck, “Louie [Olivares] was already unconscious” and “[h]is body was pretty much limp,” but Casillas cont inued to “hit him a couple tim es through the window.” Id. at 910:17–23 (Page ID #15057). Howell then “hit” Olivar es a few times, and Ca sillas continued to
kick Olivares. Id. at 911:1–6 (Page ID #15058). Howell h eard Olivares “gargling on his own blood” and then Casillas said “[y]eah, motherfucker. Die, motherfucker.” Id. at 911:8–9 (Page ID #15058). Although the beating st opped as others gathered around, id. at 911:11–16 (Page ID #15058), Olivares suffered life-threaten ing injuries that resulted in his being airlifted to a levelone trauma center. See id. at 877:2–880:11 (Page ID #15024–27).
Although another witness did not hear the statement “[d]ie, mo therfucker,” the district court’s credibility determination regarding Howell was not clearly erroneous. Nor was it
erroneous to combine that statement with the te stimony as to how severelyOlivares was beaten
and the fact that he was beaten and kicked even after being “unconscious” and going “limp” to
conclude Casillas intended to kill Olivares. Ca sillas’s argument that the district court’s findings confused a recklessness standard with the necessaryintent to kill, misses the fact that although
the district court seemed to discuss recklessness wh en describing the brutality of the assault, it
later returned to a discussi on of Howell’s testimony regardi ng Casillas’s statement “[d]ie,
motherfucker.” Id. at 24:8–25:2 (Page ID #21118–19). We th erefore conclude that it was not clear error to apply the § 2A2.1 enhancement.Nos. 14-2495/2512 United States v. Rios, et al. Page 48

III. CONCLUSION
For the foregoing reasons, we AFFIRM Rios’s conviction and sentence, and AFFIRM
Casillas’s conviction and sentence.