United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 3, 2020 Decided July 24, 2020

No. 10-3037

UNITED STATES OF AMERICA,

APPELLEE

v.

LARRY WILKERSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cr-00157-15)

Sebastian K.D. Graber, appointed by the court, argued the 

cause for appellant. With him on the briefs was Timothy Cone, 

appointed by the court.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Jessie K. Liu, 

U.S. Attorney, at the time the brief was submitted, and 

Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. 

Attorneys.

Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit 

Judge, and RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: In November 2000, a grand 

jury indicted appellant Larry Wilkerson and fifteen 

codefendants on 158 counts related to a violent narcoticsdistribution conspiracy that operated in D.C. throughout the 

1990s. Appellant was charged with conspiracy to distribute 

and possess with intent to distribute cocaine, cocaine base, 

heroin, and marijuana, conspiracy to participate in a racketeerinfluenced corrupt organization, four counts of aiding and 

abetting first-degree murder, four corresponding counts of 

aiding and abetting a continuing criminal enterprise (CCE) 

murder, and one count of aiding and abetting first-degree 

felony murder.

Many of appellant’s codefendants pled guilty and some 

also agreed to cooperate with the government. The rest went 

to trial in groups. “Group One” consisted of six defendants, 

including the conspiracy’s leaders, Kevin Gray and Rodney 

Moore. That trial concerning the Gray-Moore conspiracy 

ended in guilty verdicts and substantial sentences, which this 

court affirmed in part and vacated in part in United States v. 

Moore, 651 F.3d 30 (D.C. Cir. 2011), aff’d in part sub nom. 

Smith v. United States, 568 U.S. 106 (2013). “Group Two” 

consisted of six more defendants and similarly resulted in 

guilty verdicts and lengthy sentences, which this court affirmed 

in part and reversed in part in United States v. McGill, 815 F.3d 

846, 877 (D.C. Cir. 2016), cert. denied, 138 S. Ct. 58 (2017). 

Appellant was tried separately from his codefendants. On 

September 22, 2004, a jury found appellant guilty on all counts 

except one count of aiding and abetting first-degree murder and 

a corresponding count of aiding and abetting CCE murder. On 

April 20, 2010, the district court sentenced appellant to life

imprisonment. 
3

Appellant now appeals. He raises a number of challenges, 

including to the district court’s dismissal of a juror during 

deliberations and to the district court’s rejection of his motion

to dismiss the RICO conspiracy count as time-barred. We 

reject his challenges and affirm his convictions and sentence.

I.

We first consider the district court’s dismissal of a juror 

who, after deliberations began, expressed her disagreement 

with the applicable law and her inability to apply it. Appellant 

contends that the district court’s dismissal of the juror violated 

his Sixth-Amendment right to conviction by a unanimous jury. 

We conclude that the district court did not err.

A.

On September 8, 2004, after two months of trial, the jury 

began deliberations. United States v. Wilkerson, 656 F. Supp. 

2d 1, 2 (D.D.C. 2009) (“Wilkerson I”). Three-and-a-half days 

into deliberations, the district judge received the following 

handwritten note from a juror:

“I, juror number 0552, request that I be replaced with an 

alternate in the deliberation of Larry Wilkerson. I strongly 

disagree with the laws and instructions that govern this 

deliberation, and I cannot follow them. Because I feel so

strongly about this, it may affect my decisions in this 

matter. In other words, a possible bias decision. In 

addition, I am experiencing emotional and mental distress. 

For this alone, I felt it was enough for me to ask for a 

replacement. I would not be asking for this request, if I 

didn’t feel that this was a serious issue. Please take this 

request under strong consideration. I apologize, for the 
4

delay in this request, but if it is at all possible please 

remove me from this deliberation. Sincerely, Juror 0552.”

Id. 

The district court decided to ask Juror 0552 about her note. 

The following colloquy ensued:

COURT: All right. Thank you. In your note I just want 

to review it with you and ask you a couple of questions 

about it. And I cannot go into your deliberations or what’s 

going on in the jury room. You understand that? I don’t 

want to hear anything about the deliberations or intrude in 

any way, but because of your note I need to ask you a 

couple of questions. . . . You said that you request to be 

replaced because you strongly disagree with the laws and 

instructions that govern this deliberation and you cannot 

follow them. In other words, I just need to ask you when 

you make that statement you mean the instructions and the 

law that I’ve given to you in this case we’re talking about? 

JUROR 0552: Yes.

COURT: And although you took an oath to follow the 

instructions and the law you feel you cannot do so; is that 

fair?

JUROR 0552: Yes.

COURT: And you were very fair about it. You wrote I 

feel so strongly about this it may affect my decisions in 

this matter. In other words, I may have possible bias 

decision. And because you’re disagreeing with the law, is 

that what you’re saying?

JUROR 0552: Yes.

COURT: You also said you’re feeling emotional and 

mental distress. You felt that alone was enough to ask for 

replacement. Is that just because of deliberations you 

mean? I don’t want to get --
5

JUROR 0552: The whole thing.

COURT: The whole case?

JUROR 0552: The whole case.

COURT: Let me ask you about the law. You’ve read the 

instructions. You’ve heard my law [sic] we’re talking 

about. And it’s your opinion you cannot follow the law 

and apply it in this case? Is that what you’re saying?

JUROR 0552: I cannot follow it because I do not agree 

with it.

COURT: You do not agree with the law?

JUROR 0552: No.

COURT: I don’t want to get in your deliberations now.

JUROR 0552: Okay.

COURT: You just don’t agree with the law?

JUROR 0552: Uh-uh.

COURT: And you came to this belief after seriously 

considering you say here that you didn’t, you know, you 

wouldn’t ask for this but you didn’t feel you felt it was 

such a serious issue?

JUROR 0552: It is serious. We’re dealing with 

somebody’s life.

COURT: And under the law that I’ve given you you 

disagree with that? Is that what you’re saying?

JUROR 0552: Yes.

Id. at 3. 

After some further discussion with counsel, the district 

court decided to dismiss Juror 0552. Id. Based on Juror 0552’s 

note, the above colloquy with her, the brevity of the jury’s 

deliberations relative to the length and complexity of the trial, 

and the lack of any substantive jury questions, the district court 

found as a matter of fact that Juror 0552 sought to be dismissed 

because she disagreed with the applicable law rather than 
6

because of any concerns about the evidence. Trial Tr. 36–38, 

Sept. 15, 2004, 8 J.A. 2551–53.

Instead of proceeding with eleven jurors, the district court 

replaced Juror 0552 with an alternate. Wilkerson I, 656 F. 

Supp. 2d at 4 n.3. On September 22, 2004, the reconstituted 

jury returned guilty verdicts on all counts except one firstdegree-murder count and an associated CCE murder count. 

Appellant moved for a new trial, arguing that the district court 

had violated his Sixth-Amendment rights by dismissing Juror 

0552. The district court denied the motion. Id. at 10–11.

B.

Appellant renews his contention that the dismissal of Juror 

0552 violated his Sixth-Amendment rights. Appellant 

challenges both the district court’s finding that Juror 0552’s 

concerns were with the law, not the evidence, and the district 

court’s conclusion that disagreement with the law is a valid 

ground for dismissal. We disagree with both challenges. We 

hold that intent to disregard the law constitutes a valid ground 

for dismissing a juror and that the district court permissibly 

dismissed Juror 0552 on that basis.

1.

Federal Rule of Criminal Procedure 23(b) authorizes 

dismissal of a juror during deliberations for “good cause.” Fed. 

R. Crim. P. 23(b)(3). “A variety of issues” can constitute 

“good cause” to excuse a juror, “including illness, family 

emergency, or, . . . jury misconduct.” United States v. McGill, 

815 F.3d 846, 866 (D.C. Cir. 2016) (internal quotation marks 

omitted). “[A]ction by jurors that is contrary to their 

responsibilities” can constitute good cause. Id. (internal 

quotation marks omitted). 
7

Because a district court, “based on its unique perspective 

at the scene, is in a far superior position than [a court of 

appeals] to appropriately consider allegations of juror 

misconduct,” we review a district court’s dismissal of a juror 

“only for an abuse of discretion.” Id. at 867 (quoting United 

States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006). The Sixth 

Amendment, however, constrains that discretion. Id. This case 

presents a question we have previously left open: whether the 

Sixth Amendment precludes dismissing a juror “for refusing to 

apply the relevant substantive law.” United States v. Brown, 

823 F.2d 591, 597 (D.C. Cir. 1987). We now answer that 

question in the negative: the Sixth Amendment does not afford 

a defendant the right to a juror who is determined to disregard 

the law.

We have already decided as much with regard to trial 

proceedings that come before jury deliberations. In particular, 

we have held that the Sixth Amendment provides no right to a

jury instruction on nullification. United States v. Dougherty, 

473 F.2d 1113, 1130–37 (D.C. Cir. 1972). As we later 

explained, a “jury has no more ‘right’ to find a ‘guilty’ 

defendant ‘not guilty’ than it has to find a ‘not guilty’ defendant 

‘guilty.’” United States v. Washington, 705 F.2d 489, 494 

(D.C. Cir. 1983). Rather, “it is the duty of juries in criminal 

cases to take the law from the court, and apply that law to the 

facts as they find them to be from the evidence.” Sparf v. 

United States, 156 U.S. 51, 102 (1895). Were it otherwise, 

juries would “become a law unto themselves,” such that “our 

government [would] cease to be a government of laws, and 

[would] become a government of men.” Id. at 101, 103. For 

the same reasons, a juror intent on disregarding the law may be 

dismissed for cause during voir dire. See, e.g., Adams v. Texas, 

448 U.S. 38, 45 (1980).
8

The Sixth Amendment provides no more right to a juror 

determined to disregard the law during deliberations than it 

does beforehand. The Second Circuit thus has “categorically 

reject[ed] the idea that, in a society committed to the rule of 

law, . . . courts may permit [jury nullification of the law] to 

occur when it is within their authority to prevent.” United 

States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997). The court

reasoned that, “[i]nasmuch as no juror has a right to engage in 

nullification” of the applicable law, district courts “have the 

duty to forestall or prevent such conduct” if it can be done 

without “interfer[ing] with guaranteed rights or the need to 

protect the secrecy of jury deliberations.” Id. at 616. The 

Third, Ninth, and Eleventh Circuits agree, and we are aware of 

no court of appeals to conclude otherwise. See United States 

v. Fattah, 914 F.3d 112, 149 (3d Cir. 2019); United States v. 

Christensen, 828 F.3d 763, 806 (9th Cir. 2015); United States 

v. Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017). We join our 

sister circuits’ unanimous view.

It is true, as we have recognized, that juries might

sometimes “abuse their power and return verdicts contrary to 

the law and instructions of the court.” Washington, 705 F.2d 

at 494. But “[s]uch verdicts are lawless, a denial of due process 

and constitute an exercise of erroneously seized power.” Id. 

The Sixth Amendment provides a defendant no right to such an 

outcome. On the contrary, when a juror’s intent to disregard 

the law comes to the attention of the court, “it would be a 

dereliction of duty for a judge to remain indifferent.” Thomas, 

116 F.3d at 616. Consequently, we hold that dismissal of a 

juror during deliberations for intent to disregard the law does 

not violate a defendant’s Sixth-Amendment rights.
9

2.

While intent to disregard the applicable law constitutes a 

valid basis for dismissal, “a court may not dismiss a juror 

during deliberations if the request for discharge stems from 

doubts the juror harbors about the sufficiency of the 

government’s evidence.” Brown, 823 F.2d at 596. If it were 

otherwise, “the government [could] obtain a conviction even 

though a member of the jury . . . thought that the government 

had failed to prove its case,” rendering a defendant’s SixthAmendment right to a unanimous verdict “illusory.” Id.; 

accord Thomas, 116 F.3d at 621. A court thus might face the 

“often difficult distinction between the juror who favors 

acquittal because he is purposefully disregarding the court’s 

instructions on the law, and the juror who is simply 

unpersuaded by the Government’s evidence.” Thomas, 116 

F.3d at 621. “[A]n effort to act in good faith may easily be 

mistaken” for “purposeful disregard of the law.” Id. at 618.

Moreover, an effort by the court to clarify whether a juror 

intends to disregard the law or simply finds the evidence 

unpersuasive runs the risk of “intrud[ing] on the secrecy of the 

jury’s deliberations.” Brown, 823 F.2d at 596. Navigating the 

tension between the “duty to dismiss jurors for misconduct”

and the “equally, if not more, important [duty to] safeguard[] 

the secrecy of jury deliberations” is a “delicate and complex 

task.” Thomas, 116 F.3d at 618. “[A] court may not delve 

deeply into a juror’s motivations because [doing so may] 

intrude on the secrecy of the jury’s deliberations.” Brown, 823 

F.2d at 596.

Cognizant of those competing considerations, this court in 

Brown decided to “err[] on the side of Sixth-Amendment 

caution.” McGill, 815 F.3d at 867. We held that, “if the record 

evidence discloses any possibility that the request to discharge 
10

stems from the juror’s view of the sufficiency of the 

government’s evidence, the court must deny the request.” 

Brown, 823 F.2d at 596. Applying that standard to the facts in 

Brown, we rejected the juror’s dismissal because the record 

“indicate[d] a substantial possibility that [the juror] requested 

to be discharged because he believed that the evidence offered 

at trial was inadequate to support a conviction.” Id. Several 

other circuits have since adopted our approach in Brown. See, 

e.g., United States v. Kemp, 500 F.3d 257, 304 (3d Cir. 2007); 

United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001); 

United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 

1999); Thomas, 116 F.3d at 622.

The district court here applied the Brown standard, finding 

no substantial possibility that Juror 0552’s request to be 

dismissed stemmed in any way from her views about “the 

sufficiency of the government’s evidence.” Brown, 823 F.2d 

at 596. Rather, the juror asked “to be replaced because she 

strongly disagrees with the law[s] that govern this deliberation 

and cannot follow them.” Trial Tr. 37, Sept. 15, 2004, 8 J.A.

2552. When defense counsel suggested that the juror might 

have had evidence-based reservations about “the law applied 

to the facts,” as opposed to concerns about the law alone, the 

court rejected that possibility: “Her note was very clear. She 

wants to be relieved of the duty because she disagree[s] with 

the law.” Id. at 32, 8 J.A. 2547. And she so explained, the 

court found, “without any reference whatsoever to any 

evidentiary concerns or the strength of the government’s 

evidence or the dissatisfaction with the government’s 

presentation of the case.” Id. at 38, 8 J.A. 2553. Instead, “her 

only expression [was] that she cannot follow the law and she 

disagrees with it and she reaffirmed that orally.” Id. The court 

was “satisfied beyond a reasonable doubt as a judge of her 

credibility from her statements in the letter and her statements 

on the record that she will not follow the law[s], that she 
11

strongly disagrees with them and she’ll not follow them 

contrary to her oath of office.” Id. The court thus found no 

substantial possibility of an evidence-based concern. Id.

We see no basis to set aside the district court’s finding to 

that effect. As the court explained, when Juror 0552 sent her 

note, the jury had yet to submit any substantive questions and 

had been deliberating for only three days, after a months-long 

trial involving an extensive amount of evidence covering 

numerous counts and a correspondingly complex set of 

instructions and verdict form. That context, the court 

understandably believed, was not suggestive of a hold-out juror 

based on the evidence. And more importantly, the juror’s

statements did not indicate any evidentiary concerns. As the 

court explained, her note stated unambiguously that she 

disagreed with the law without referencing any evidentiary 

concerns. In response to the court’s questioning, she confirmed 

that she disagreed with the law seven times, never once 

referencing the evidence, much less suggesting any evidencebased concerns.

To be sure, in her note, Juror 0552 conveyed that “[i]n 

addition” to her disagreement with the law, she was 

“experiencing emotional and mental distress.” Wilkerson I, 

656 F. Supp. 2d at 2. When the district court asked whether 

her distress was “because of deliberations,” she replied that it 

was “the whole thing,” i.e., “the whole case.” Id. at 3. 

Appellant asserts that the whole case includes the evidence. 

But Juror 0552’s statement that her emotional distress related 

to “the whole thing” does not evince an evidentiary concern as 

such—i.e., it did not amount to “record evidence disclos[ing] a 

possibility that [she] believe[d] that the government ha[d] 

failed to present sufficient evidence to support a conviction.” 

Brown, 823 F.2d at 597. The district court understood her 

distress to stem from “concern[s] there was a lot at stake and 
12

she said a life at stake,” not from any concerns associated with 

the evidence. Trial Tr. 38, Sept. 15, 2004, 8 J.A. 2553. On that 

record, the court did not err in discerning no substantial 

possibility that her distress derived from an evidentiary 

concern. (After the trial, it became apparent that the juror had 

“fallen for” and become “fixated” with appellant, and she 

visited him in jail some fifty times. United States v. Wilkerson, 

656 F Supp. 2d 11, 16–17 (D.D.C. 2009) (“Wilkerson II”)).

The contrast between the record in this case and the one in 

Brown is instructive. In Brown, the jury had been deliberating 

for five weeks when it sent the following note: “When is a 

defendant not guilty? When all jurors give a unanimous verdict 

vote of not guilty or, at least, one gives a vote of not guilty?” 

Brown, 823 F.2d at 594. The district court instructed the jury 

to continue deliberations to reach a unanimous verdict. Id. 

Later that day, the court received another note, reading: “I 

Bernard Spriggs am not able to discharge my duties as a 

member of this jury.” Id. When the court questioned Spriggs, 

he indicated that he had concerns with “the way [the act is] 

written and the way the evidence has been presented,” and that,

had “the evidence [been] presented in a fashion in which the 

law is written, then, maybe, [he] would be able to discharge 

[his] duties.” Id. at 597 (emphasis in original). We held that 

Spriggs’s dismissal violated the defendants’ right to conviction 

by a unanimous jury, reasoning that we could not conclude 

“with any conviction” that Spriggs’s request “stemmed from 

something other than this view” of the evidence. Id. (emphasis 

in original). Because the “record evidence in th[e] case 

indicate[d] a substantial possibility” that Spriggs’s request 

stemmed from evidentiary doubts, his dismissal violated the 

defendants’ Sixth-Amendment rights. Id. at 596.

The record in this case is markedly different. First, in 

Brown, Spriggs’s note came five weeks into deliberations and 
13

on the same day the court instructed the jury to keep 

deliberating after the jury asked whether it had to be 

unanimous. Id. at 594. That context suggested that Spriggs 

may have been a holdout. By contrast, Juror 0552’s note came 

only three days after a two months-long trial covering many 

crimes over many years and the jury had yet to send a single 

substantive note. Second, in Brown, when asked about his 

disagreement with the law, Spriggs referenced his 

dissatisfaction with the evidence and even indicated that he 

would have had no problem if the evidence had been presented 

differently. Id. at 597. By contrast, Juror 0552 unambiguously

indicated her disagreement with the law in her note without any 

reference to evidentiary concerns, and then confirmed that 

disagreement seven times in her colloquy with the district court 

without once mentioning evidentiary issues. In the context of 

that record, the district court was under no obligation to keep 

her on the jury even though she repeatedly and unequivocally 

stated that she strongly disagreed with the applicable law and 

could not follow it.

Lastly, we note an issue appellant raised in the district 

court. In Brown, as noted, we held that a juror cannot be 

dismissed if “the record evidence discloses any possibility”—

or, alternatively, “a” possibility—“that the request to discharge 

stems from the juror’s view of the sufficiency of the 

government’s evidence.” 823 F.2d at 596–97. And then in 

applying that standard, we said that the “record evidence in 

th[e] case indicate[d] a substantial possibility” that the juror 

“believed that the evidence offered at trial was inadequate to 

support a conviction.” Id. at 596. The district court in this case, 

echoing that language, found that the record here indicated no 

such “substantial possibility.” Trial Tr. 38, Sept. 15, 2004, 

8 J.A. 2553. But the language in Brown might raise the 

question, does our standard call for denying a juror’s dismissal 

when there is “any” or “a” possibility of an evidence-based 
14

concern or instead only when there is a “substantial” such 

possibility, insofar as there is a meaningful difference among 

those formulations? 

Appellant raised that issue in the district court in his 

motion for a new trial. Wilkerson I, 656 F. Supp. 2d at 6–8. 

The district court understood Brown to call for examining 

whether there is a “tangible possibility” as opposed to “just a 

speculative hope.” Id. at 7 (quoting Abbell, 271 F.3d at 1302 

n.14); accord Kemp, 500 F.3d at 304; Symington, 195 F.3d at 

1087 n.5. The court found no such possibility indicated by the 

record in this case. Wilkerson I, 656 F. Supp. 2d at 8. The 

court further said that it “would be helpful for the Court of 

Appeals to clarify the applicable standard in this Circuit.” Id. 

We do so now, and we agree with the district court that the 

pertinent question is whether there is a “tangible” or 

“appreciable” possibility, not merely whether there is 

“literal[ly] ‘any possibility,’” even just a theoretical one. Id. 

That understanding follows naturally from our repeated 

recognition in Brown that the possibility of a juror’s evidencebased concerns must be one that “the record evidence 

discloses.” 823 F.3d at 596–97. Here, the district court made 

the requisite determination: that “the record before [it] 

indicated no appreciable possibility that Juror 0552 harbored 

concerns about the evidence.” Wilkerson I, 656 F. Supp. 2d at 

5 n.5. We see no basis to reject the court’s assessment.

II.

We next address appellant’s claim that the district court

erred in not dismissing the RICO conspiracy count against him 

as time-barred. We hold that the RICO conspiracy count was 

not time-barred.
15

A.

The statute of limitations applicable to RICO conspiracy 

is five years. Smith v. United States, 568 U.S. 106, 111 n.4 

(2013). Here, because the grand jury indicted appellant on 

November 17, 2000, the cutoff for statute of limitations 

purposes was November 17, 1995.

The original November 2000 indictment alleged sixtythree racketeering acts in support of the RICO conspiracy 

count, including many after 1995. The indictment alleged

appellant’s specific involvement, however, in only seven

predicate acts, one of which—narcotics conspiracy—the 

indictment alleged he committed after 1995. 

In November 2002, the government filed a retyped 

indictment, which was largely the same as the original 

indictment but with some predicate racketeering acts that had 

been dismissed removed. In June 2003, appellant moved to 

dismiss the RICO conspiracy count from that indictment as 

time-barred. The district court denied appellant’s motion.

While that motion was pending, in July 2003, the district 

court severed appellant’s trial from that of his codefendants. 

Accordingly, prior to trial, in July 2004, the government filed 

a second retyped indictment, deleting predicate racketeering 

acts that did not specifically reference appellant. The second 

retyped indictment’s RICO conspiracy count thus alleged 

seven predicate acts of racketeering, only one of which—

narcotics conspiracy—appellant allegedly committed after 

1995. The verdict form submitted to the jury also referenced 

only those seven predicate acts. 
16

B.

Appellant contends that narcotics conspiracy does not 

constitute a predicate act of racketeering, and that even if it 

does, RICO conspiracy requires two predicate acts of 

racketeering within the statute of limitations period. We 

disagree on both scores.

In general, we review the district court’s legal conclusion 

concerning the scope of the conspiracy de novo. United States 

v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). But when a 

defendant fails to object to an alleged error, the defendant bears 

the burden of demonstrating “plain error” on appeal. United 

States v. Moore, 651 F.3d 30, 50 (D.C. Cir. 2011). Although 

the government contends that the plain-error standard applies 

here, we need not decide that issue because we conclude that 

the district court did not err in the first place. We hold that 

narcotics conspiracy constitutes a predicate act of racketeering 

and that a RICO conspiracy count is timely if the government 

charges the defendant within five years of the conspiracy’s 

termination or the defendant’s withdrawal. 

A person commits the offense of RICO conspiracy by 

conspiring to “conduct or participate . . . in the conduct of [an 

interstate] enterprise’s affairs through a pattern of racketeering 

activity.” 18 U.S.C. § 1962(c)–(d). Section 1961 lists offenses 

that constitute racketeering activity, including “any offense 

involving . . . the felonious manufacture, importation, 

receiving, concealment, buying, selling, or otherwise dealing 

in a controlled substance . . . punishable under any law of the 

United States.” Id. § 1961(1)(D). Here, both the first and 

second retyped indictments charged appellant with conspiracy 

to “manufacture, distribute, or dispense, or possess with intent 

to manufacture, distribute, or dispense, a controlled substance.” 

See 21 U.S.C. §§ 841(a)(1), 846. 
17

By its plain terms, section 1961(1)(D)’s language—“any 

offense involving . . . dealing in a controlled substance”—

encompasses a Section 846 offense—conspiracy to “distribute, 

or dispense . . . a controlled substance.” The structure of 

section 1961 bolsters that conclusion: section 1961’s 

“subsections (B) and (C) . . . conspicuously lack the broad ‘any 

offense involving’ language of subsection (D),” instead 

limiting their predicate acts to those “indictable under 

specifically enumerated sections of the criminal code.” United 

States v. Weisman, 624 F.2d 1118, 1124 (2d Cir. 1980). 

Several circuits have thus held that section 1961(1)(D) 

encompasses related conspiracy offenses. See United States v. 

Echeverri, 854 F.2d 638, 648–49 (3d Cir. 1988); United States 

v. Phillips, 664 F.2d 971, 1015 (5th Cir. 1981); Weisman, 624 

F.2d at 1124. We agree and now hold that a narcotics 

conspiracy offense constitutes racketeering activity under 

section 1961(1)(D).

Appellant argues in the alternative that, even if narcotics 

conspiracy constitutes a predicate act of racketeering, the 

RICO conspiracy count was time-barred because it alleged his

specific involvement in only one rather than two predicate acts 

within the limitations period. We disagree. 

The statute of limitations applicable to RICO conspiracy 

bars prosecution unless an indictment is returned “within five 

years next after such offense shall have been committed.” 18 

U.S.C. § 3282. Thus, the statute of limitations begins to run 

when a defendant last commits the “offense” of RICO 

conspiracy. A defendant who conspires to participate in an 

enterprise’s affairs “through a pattern of racketeering activity,” 

18 U.S.C. § 1962(c)—i.e., through commission of at least two 

predicate acts of racketeering, id. § 1961(5)—commits the 

offense of RICO conspiracy, id. § 1962(d). As the Supreme 
18

Court has explained, however, “the offense in . . . conspiracy 

prosecutions [is] not the initial act of agreement, but the 

banding-together against the law effected by that act.” Smith, 

568 U.S. at 113. That offense “continues until termination of 

the conspiracy or, as to a particular defendant, until that 

defendant’s withdrawal.” Id. Put simply, “a defendant who 

has joined a conspiracy continues to violate the law through 

every moment of [the conspiracy’s] existence.” Id. at 111 

(citation omitted). 

Absent withdrawal, then, a defendant continues to commit 

the offense of RICO conspiracy until the date of the 

conspiracy’s termination. It follows that a RICO conspiracy 

count is timely aslong asthe government charges the defendant 

within five years of that date. See United States v. Saadey, 393 

F.3d 669, 678 (6th Cir. 2005); United States v. Gonzalez, 921 

F.2d 1530, 1547–48 (11th Cir. 1991); United States v. Torres 

Lopez, 851 F.2d 520, 525 (1st Cir. 1988); United States v. 

Persico, 832 F.2d 705, 713–14 (2d Cir. 1987).

Here, as noted, both the first and second retyped 

indictments alleged appellant’s participation in a narcotics 

conspiracy as a predicate racketeering act within the limitations 

period. Thus, both indictments alleged appellant’s commission 

of the offense of RICO conspiracy within the limitations 

period.

III.

Appellant raises five additional challenges. He contends 

(i) that certain statements made by witnesses and the 

prosecution deprived him of a fair trial; (ii) that the district 

court improperly gave a Pinkerton instruction; (iii) that the 

evidence for two of the CCE murder counts was insufficient; 

(iv) that the prosecution withheld Brady evidence and 
19

advanced inconsistent theories of prosecution; and (v) that the 

testimony of a witness named Donney Alston was secured in 

violation of Alston’s Fifth Amendment rights. None of those 

challenges has merit.

Appellant first contends that certain statements made by 

witnesses and referenced in the prosecution’s closing argument

deprived him of a fair trial. Appellant particularly emphasizes 

one statement that suggested that his decision to go to trial 

proved his continuing participation in the conspiracy. 

Appellant objected to that testimony and requested the district 

court to strike it, which the court did. Appellant did not object 

to the prosecution’s reference to that testimony in closing 

argument. Because appellant failed to preserve any claim for 

relief beyond striking the testimony, see United States v. Tate, 

630 F.3d 194, 197 (D.C. Cir. 2011); United States v. Taylor, 

514 F.3d 1092, 1095–96 (10th Cir. 2008), we review his claim 

for plain error, Moore, 651 F.3d at 50. 

He cannot meet that standard. It is neither “clear” nor 

“obvious” that the district court should have sua sponte granted

curative action beyond striking the challenged testimony. 

United States v. Olano, 507 U.S. 725, 734 (1993). Nor did the 

court’s failure to sua sponte instruct the jury again or take other

curative action following the prosecution’s single reference 

thereto affect appellant’s substantial rights, given the court’s 

previous instruction and the weight of the evidence of 

appellant’s continuing participation in the conspiracy and the 

comparative dearth of evidence of his purported withdrawal. 

See McGill, 815 F.3d at 890; Moore, 651 F.3d at 54.

Appellant next contends that, because of that testimony,

the district court should have dismissed the narcotics 

conspiracy count, and that the court further erred in giving an 

instruction under Pinkerton v. United States, 320 U.S. 640 
20

(1946), as to that conspiracy count and the RICO conspiracy 

count. But as discussed, the district court did not err in sending 

those conspiracy counts to the jury. And “once the trial court 

determined to send the conspiracy charge[s] to the jury, it could 

not have been error to also give a Pinkerton instruction.” 

United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002).

Appellant challenges the sufficiency of the evidence for 

the CCE murders of Christopher Burton and Scott Downing. 

In particular, appellant challenges the sufficiency of the 

connection between those murders and the continuing criminal 

enterprise. Assuming such a substantive connection is 

required, see, e.g., United States v. Aguilar, 585 F.3d 652, 658 

(2d Cir. 2009), a “rational trier of fact could have found” it

here, United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir. 

2002). A rational trier of fact could have found that members 

of the Gray-Moore conspiracy murdered Christopher Burton in 

retaliation for an attack on one of its own (appellant). 

Similarly, a rational trier of fact could have found that members 

of the conspiracy murdered Scott Downing as part of a botched 

plan to punish his partner for pulling out of a drug deal. Such 

murders, committed with the conspiracy’s resources to stifle

threats to its members or its deals, bear a substantive 

connection to the continuing criminal enterprise. See United 

States v. Aquart, 912 F.3d 1, 58 (2d Cir. 2018); Aguilar, 585 

F.3d at 658; United States v. Jones, 101 F.3d 1263, 1267 (8th 

Cir. 1996).

Appellant next contends that the government withheld 

evidence in violation of Brady v. Maryland, 373 U.S. 83 

(1963), and relied on inconsistent theories in its prosecutions 

in violation of his due-process rights. Both contentions rely on 

the same post-trial discovery: the factual proffer in Rodman 

Lee’s plea agreement, which described Lee as the leader of a 

conspiracy counting Gray among its members. United States 
21

v. Wilkerson, 656 F. Supp. 2d 22, 31 (D.D.C. 2009)

(“Wilkerson III”). Appellant contends that that evidence was 

material to his claim that the Gray-Moore conspiracy had 

disbanded prior to 1995 and is inconsistent with the 

prosecution’s theory that Lee joined the Gray-Moore 

conspiracy. Both contentions fail for the same reason: 

“[c]riminals may of course participate in more than one 

conspiracy.” Moore, 651 F.3d at 65. Evidence that Gray 

participated in the Lee conspiracy is not inconsistent with the 

persistence of the Gray-Moore conspiracy. Such evidence is 

immaterial, as we held for the same factual proffer for several 

of appellant’s original co-defendants, id., and the prosecution’s 

theories were not inconsistent, as the district court held, 

Wilkerson III, 656 F. Supp. 2d at 32–34.

Finally, Appellant contends that his indictment unlawfully 

relied on testimony from Donney Alston obtained in violation 

of Alston’s Fifth Amendment privilege. But generally “a 

defendant does not have standing to complain of an erroneous 

ruling on the scope of the privilege of a witness.” Ellis v. 

United States, 416 F.2d 791, 799 (D.C. Cir. 1969). Nor does 

any alleged violation of Alston’s Fifth-Amendment rights fit 

the exception for cases in which a constitutional violation 

would otherwise evade review. See id. at 799–800; accord

Barrows v. Jackson, 346 U.S. 249, 257 (1953).

* * * * *

For the foregoing reasons, we affirm the judgment of the 

district court.

So ordered.