**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 09**  **- 4215** 

UNITED STATES OF AMERICA , Plaintiff

– Appellee ,
v. WILLIE MITCHELL, a/k/a Bo , Defendant

– Appellant
.

**No. 09 -**  **4357**

UNITED STATES OF AMERICA , Plain tiff

– Appellee ,
v. SHELTON HARRIS, a/k/a Little Rock , Defendant

– Appellant
.

**N o.**  **09 -**  **4359**

UNITED STATES OF AMERICA , Plaintiff

– Appellee ,
v.2 SHELLY WAYNE MARTIN, a/k/a Wayne , Defendant

– Appellant
.

**No. 09**  **- 4361** 

UNITED STA TES OF AMERICA , Plaintiff

– Appellee ,
v. SHAWN GARDNER, a/k/a Goo , Defendant

– Appellant
.

Appeal s from the United States District Court for the District of Maryland , at Baltimore
. Andre M. Davis , District Judge. ( 1:04

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Argued : May 13, 2011 Decided: June 15, 2011

Before TRAXLER, Chief Judge, and SHEDD and DUNCAN , Circuit Judges.

Affirmed by un published opinion
. Judge Shedd wrote the opinion , in wh ich Chief Judge Traxler and Judge Duncan joined.

**ARGUED:** Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland; Paul Martin Flannery, ROSENBERG, MARTIN & GREENBERG, LLP, Baltimore, Maryland; Thomas Leonard Crowe, LAW OFFICES OF THOMAS L. CROWE, Bal timore, Maryland; Adam Harris Kurland, HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Appellants. Robert Reeves Harding, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. **ON BRIEF:** Sicilia Englert, LAWLOR & ENGLERT, LLC, Gr eenbelt, Maryland, for Appellant Willie Mitchell; Barry Coburn, COBURN & COFFMAN, PLLC,3 Washington, D.C., for Appellant Shawn Gardner. Rod J. Rosenstein, United States Attorney, Michael C. Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED STA TES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.4 SHEDD, Circuit Judge : A jury convicted Willie Mitchell, Shelton Harris, Shelly Wayne Martin, and Shawn Gardner of racketeering c onspiracy in violation of 18 U.S.C. § 1962(d) and, individually, of various murders as well as drug and firearm offenses. The four defendants worked together and depended on one another to sell drugs , to operate a rap music business, and to rob and murder several o f their criminal associates. In this consolidated appeal , the defendants raise a total of sixteen issues. After a thorough review of all sixteen issues, we find none to have merit, and we address only three evidentiary issues : the exclusion of Herb “Coa ch” Lynch’s testimony, the exclusion of Gardner’s prior state court murder conviction, and the introduction of the defendants’ courtroom behavior and pro se pleadings.

I.

“ We review evidentiary rulings for abuse of discretion, and such rulings are subjec t to harmless error review .” U.S. v. Brooks , 111 F.3d 365, 371 ( 4th Cir. 1997)
. “ I n order to find a district court's error harmless, we need only be able to say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not sub stantially swayed by the error. ” Id . (internal5 citation marks omitted). With this framework in place, we turn to each issue.

II. First, Mitchell argues that the district court abused its discretion in exclu ding the testimony of “ Coach ” Lynch. As a defense to the racketeering conspiracy charge, the defendants argued that the evidence demonstrates they were only involved in multiple, lesser conspiracies, not a single racketeering conspiracy. In support of th is defense, Mitchell wanted Lynch to testify as to his whereabouts during various time periods within the racketeering conspiracy, specifically the time Mitchell spent either incarcerated o r working at the Hickey School , a juvenile detention center . Mitch ell alleges that Lynch would have testified that during those time periods “Mitchell had a rigorous daily schedule of school and practices that left little time for anything else
. . . and that it would have been difficult for hi m to participate in a consp iracy while he was incarcerated or working at Hickey [School].” ( Appellant’s Br. at 99. ) Prior to Lynch’s testimony, one of the jurors informed the court that he knew Lynch as his son’s athletic mentor and6 trainer
. 1

We believe that any error in excluding Lynch’s testimony was harmless. Lynch was not going to testify as to ev idence regarding any of the charged conduct. Moreover , Mitchell’s counsel called substitute witnesses that provided similar testimony
. Therefore, in light of the Government’s overwhelming evidence of guilt presented throughout the trial, there was suffic ient evidence to sustain the jury’s verdict even without this challenged evidence. The j uror saw Lynch every two days at his son’s practices and planned to continue seeing Lynch on this schedule throughout the trial. Based upon this information , the government moved to excuse the juror , but the attorneys for all four defendants opposed the motion. The court offered severa l options to Mitchell’s counsel , including entering a stipulation
as to Lynch’s testimony. After Mitchell’s counsel refused these options, the district court decided to preclude Lynch’s testimony because the evidence was amenable to a stipulation, all def ense counsel opposed dismissing the juror , and there was a “truly intimate relationship between t his juror and this fact witness. ” ( J.A. 822. )

1 During voir dire, Mitchell’s counsel did not provide Lynch’s first name, referring to him as “Coach” Lynch
. The juror knew Lynch as “Herb Lynch, Certified Personal Trainer.”7 I II. Next, Gardner argues that the district court abused its discretion in excluding evidence of his prior state court murder conviction. Gardner had previously been conv icted in Maryland state court and sentenced to a life term for the murder of Tanya
Jones

- Spence , one of the murders also charged in this case
. Likewise, t he Government’s cooperating witness , William Montgomery , had also testified in th e state trial. Ther efore, in this trial, the district court instructed Gardner’s counsel that when cross - examining Montgomery he could bring out the fact that Montgomery had testified in a prior proceeding before a jury . However, the court f orba d e counsel from introduc ing

e vidence of Gardner ’ s conviction in that proceeding
. Only relevant evidence is admissible. Fed. R. Evid. 401, 403. Even assuming evidence of Gardner’s prior conviction was relevant , such evidence may be excluded when its probative value is substantiall y outweighed by the potential for “unfair prejudice, confusion of the issues, or misleading the jury.” Fed. R. Evid. 403. In this case, the district court excluded this evidence because of its concern about confusion of the8 issues, waste of time, and the potential for prejudice to both Gardner and the other defendants. 2 We find that the district court did not abuse its discretion in holding that the probative value of evidence of Gardner’s prior state conviction was substantially outweighed by its pote ntial for jury confusion and prejudice and, thus, should be excluded. P resenting this jury with a previous jury’s guilty verdict for the exact crime charged in this case would have certainly been both prejudicial and confusing.

I V . Finally, a ll four def endants argue that the district court abused its discretion by allowing the Government to introduce evidence of their pre

- trial courtroom behavior and pro se pleadings. Specifically, during pretrial hearings, the four defendants repeatedly engaged in disr upt ive behavior through coordinated and identical demonstrations. The defendants gave

2 Specifically, the court stated it was primarily concerned about the prejudicial effect such evidence would have. “[O]nce we go there [put ting the conviction and sentence before the jury], it is beyond me how in any coherent way you can maintain innocence through a non

- concession of guilt when you’ve told the jury or had the Court tell the jury or conceded in front of the jury that there has been a trial, Montgomery testified, a jury listened to that evidence as well as other evidence, and found beyond a reasonable doubt that Mr. Gardner had committed this murder or, and/o r aided and abetted in the commission of this murder and/or conspired to commit this murder.” ( J.A. 1211. )9 identical speeches rejecting the jurisdiction of the district

c ourt over them as live “flesh and blood” men and denouncing the
G overnment, the district c ourt, and their attorneys. They also submitted identical pro se pleadings. In its fourth superseding indictment, t he G overnment alleged that the racketeering conspiracy continued through the trial and that a purpose of the conspiracy was “[p]reventing and obstructing the arrest and prosecution of member s and associates through . . . disruption of court proceedings.” ( J.A. 457

- 458
. ) In order to prove this charge , the Government introduced the above evidence of the defendants ’ coordinated behavior
. On appeal , the defe ndants argue that the introduction of this evidence violates their Sixth Amendment r ight to mount their own defense
. We again conclude that, even assuming the district court abused its discretion in admitting this evidence , any error was harmless. T he jury convicted all four defendants not only of the racketeering conspiracy but also of multiple, substantive , predicate counts. The evidence presented throughout the nine week trial detailing the four defendants’ concerted activities in furtherance of the racketeering enterprise was abundant and sufficient to sustain the jury’s verdict even without this challenged evidence.10 V. For the foregoing reasons we affirm the convictions of Willie Mitchell, Shelton Harris, Shelly Wayne Martin, and Shawn Gardner
. A FFIRMED