IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-31049

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

RENEE GILL PRATT,

Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Renee Gill Pratt appeals her sentence and conviction of one count of

conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act

(RICO)1 pursuant to 18 U.S.C. § 1962(d). We affirm Pratt’s conviction but vacate

her sentence and remand for resentencing.

I

Pratt, a member of the Louisiana House of Representatives from 1991 to

2002 and a New Orleans city councilmember from 2002 to 2006, was prosecuted

in connection with a federal investigation of several Louisiana politicians and

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2013

Lyle W. Cayce

Clerk

1

18 U.S.C. §§ 1961-1968.

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businesspeople who allegedly abused their positions and misappropriated public

funds. The Government accused Pratt of using her political influence and power

to further the objectives of a criminal enterprise (“the Enterprise”) comprising

Pratt, members of a well-known Louisiana family, and various nonprofit entities

they controlled. Pratt allegedly conspired with members of the Enterprise to

illegally funnel state and federal funds and property to members of the

conspiracy for their personal benefit.

Initially, the Government indicted Mose Jefferson, Angela Coleman, and

Betty Jefferson (“the Jeffersons”) on multiple felony charges including

embezzlement, money laundering, mail fraud, and conspiracy to commit the

same. As the investigation progressed, the Government obtained a first

superseding indictment that added Pratt as a defendant and recast the

conspiracy charge as a RICO conspiracy. Pratt was charged only with the RICO

conspiracy count and not under any of the substantive counts. Pratt moved to

sever, arguing that the indictment alleged only a minor role in the conspiracy

and that her defense would be prejudiced by the presentation of evidence

concerning her codefendants’ substantive crimes. The court denied the motion.

After a second superseding indictment was issued, Betty Jefferson and

Angela Coleman pleaded guilty, and the Government obtained a third

superseding indictment against only Pratt and Mose Jefferson. Pratt filed a

motion to dismiss, arguing that the indictment did not allege facts to support the

court’s subject matter jurisdiction and failed to allege actual criminal conduct by

Pratt. The court denied the motion. Due to Mose Jefferson’s health problems,

the Government then proceeded to trial against Pratt alone. That trial resulted

in a hung jury. In anticipation of a second trial, the Government obtained a

fourth superseding indictment, which named Pratt as the only defendant. As a

result, this indictment omitted the substantive-crime counts, but retained

2

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references to the Jeffersons and details of their conduct as it related to the

alleged conspiracy.

Jury selection for Pratt’s second trial began with a thirty-page

questionnaire sent to each potential juror. Several of the questions concerned

pretrial publicity and potential bias. In addition to general questions about

media exposure and consumption, potential jurors were specifically asked if they

had heard of Pratt, the Jeffersons, or any of several related individuals and

entities and, if so, what opinions the potential jurors had formed. The district

court struck some potential jurors based on their answers to the questionnaire.

After conducting voir dire of the remaining potential jurors as a group, the

court questioned each potential juror individually. At first the district court

permitted the attorneys to ask questions directly, but during individual

questioning of the fourth potential juror, the court took control. Pratt’s lawyer

objected to the court’s decision and exclaimed that he had “never seen or met a

judge who knew how to conduct a voir dire, except to clean up a witness who

[was] already tainted.” However, the court refused to cede control and

admonished Pratt’s attorney not to argue further. During the subsequent two

days of questioning, the court entertained objections and permitted the parties

to request additional questioning of the venire but did not allow either side to

question potential jurors directly. At various times during the questioning, Pratt

moved to strike jurors for cause, but the court overruled her objections. At the

conclusion ofthe individual questioning,the district court entertained challenges

for cause one last time. Pratt challenged only two jurors, and the court

overruled both challenges.2 Both sides then exercised their peremptory strikes,

and Pratt used some of her challenges to strike jurors that she had

2 The court also overruled all of the Government’s challenges.

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unsuccessfully challenged for cause. Pratt never moved to dismiss for cause any

of the jurors ultimately empaneled.

The Government used five of its eight peremptory strikes to excuse black

jurors, leaving only one black juror on the panel. Pratt objected, arguing that

the Government’s strikes were racially motivated. TheGovernment offered raceneutral reasons for each of the strikes, after which Pratt was given an

opportunity to argue that those reasons were pretext for discrimination. The

district court denied Pratt’s objection, finding the Government’s proffered

reasons credible. The court then empaneled the jury and two alternates without

further objection from either side.

After a 10-day trial, the jury convicted Pratt on the single count of

conspiracy to violate RICO. At sentencing, the court calculated a recommended

sentencing range under the United States Sentencing Guidelines (the

Guidelines) of 78-97 months and sentenced Pratt to 87 months of imprisonment. 

Pratt appealed and now asserts four points of error: (1) the court failed to

question the venire adequately about pretrial publicity, (2) the Government used

its peremptory challenges to exclude jurors on the basis of race, (3) the fourth

superseding indictment failed to identify sufficiently the pattern of racketeering

activity underlying the conspiracy, and (4) the district court improperly

calculated the Guidelines sentencing range. We first address the issues

pertaining to Pratt’s conviction.

II

Pratt raises two objections to the manner in which the court conducted

voir dire. First, she asserts that the district court failed to question the venire

sufficiently about their biases, making it impossible to determine whether the

seated jury was impartial. Second, she argues that the court improperly

rehabilitated jurors who were clearly biased and therefore erred in not

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dismissing several specific jurors for cause. As a result, Pratt claims she was

deprived of effective use of her twelve peremptory challenges.3

We review the district court’s voir dire procedures for abuse of discretion.4

The district court has great latitude to conduct voir dire, including the form and

scope of questioning.

5

“[O]nly ‘when there is insufficient questioning to allow

defense counsel to exercise a reasonably knowledgeable challenge to unqualified

jurors,’” does the district court abuse its discretion.6 To demonstrate that

questioning about pretrial publicity was inadequate, a defendant must show “(1)

that pretrial publicity about the case raised a significant possibility of prejudice,

and (2) that the district court’s voir dire procedure failed to provide a reasonable

assurance that prejudice would be discovered if present.”7 The parties do not

dispute that pretrial publicity was substantial and raised a significant

possibility of prejudice. The Jeffersons were the subject of significant media

attention, as was Pratt herself, much of it negative. The only question is

whether the district court’s voir dire was sufficient to reveal biased jurors.

We have resisted categorically requiring any specific voir dire procedures

or questions, and we give great deference to the trial court’s determination of

impartiality.8 It is clear, however, that a court may not rely solely on a juror’s

3 The Government was allotted eight strikes and Pratt twelve; both received two more

than mandated. See FED. R. CRIM. P. 24(b)(2).

4 United States v. Bieganowski, 313 F.3d 264, 272 (5th Cir. 2002) (citing United States

v. Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995)).

5

Id.; see Mu’Min v. Virginia, 500 U.S. 415, 423 (1991) (“[F]ederal judges have been

accorded ample discretion in determining how best to conduct the voir dire.” (quoting RosalesLopez v. United States, 451 U.S.182, 189 (1981)) (internal quotation marks omitted)).

6 Bieganowski, 313 F.3d at 272-73 (quoting Beckner, 69 F.3d at 1291).

7

Id. at 273 (quoting Beckner, 69 F.3d at 1292) (internal quotation marks omitted).

8 See Bieganowski, 313 F.3d at 272-73; see also Mu’Min, 500 U.S. at 425-26 (holding

that a court need not ask questions about the specific content of media exposure unless “the

5

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assertion of impartiality but instead must conduct a sufficiently probing inquiry

to permit the court to reach its own conclusion.9 For example, in United States

v. Davis,

10 we held that merely asking potential jurors to raise their hands if

they could not be impartial was not adequate voir dire in light of significant

pretrial publicity of the defendant’s participation in a sensational jail break in

Mexico.11 Other than that single, group question, the district court in Davis only 

gave a general admonishment to the venire that they would be required to decide

the case impartially.12 The court asked no follow-up questions and made no

specific inquiries of any individual juror.13 “Without establishing an inflexible

rule” for voir dire, we held that the district court failed to “make sufficient

inquiry into the possibility of prejudice” given the circumstances.14 Our

subsequent cases have affirmed that such a perfunctory inquiry is insufficient

when there is a reasonable probability of bias,.15

trial court’s failure to ask these questions [would necessarily] render the defendant’s trial

fundamentally unfair”).

9 Beckner, 69 F.3d at 1291 (“[B]ecause jurors exposed to pretrial publicity are in a poor

position to determine their own impartiality . . . district courts must make independent

determinations of the impartiality of each juror.”).

10

583 F.2d 190 (5th Cir. 1978).

11 Davis, 583 F.2d at 196.

12

Id.

13

Id.

14

Id. at 198.

15 See United States v. Beckner, 69 F.3d 1290, 1293-94 (5th Cir. 1995) (holding that the

district court’s failure to make any inquiry into the substance or effects of media exposure was

an abuse of discretion and that simply asking the panel as a group whether “anyone . . . could

not be completely fair and impartial” was not sufficient); United States v. Hawkins, 658 F.2d

279, 285 (5th Cir. Unit A 1981) (“[W]hen the nature of the publicity as a whole raises a

significant possibility of prejudice, and a juror acknowledges some exposure to that publicity,

more than the abbreviated questioning conducted in Davis and in the case sub judice is

necessary.”).

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Recently, the Supreme Court closely examined the sufficiency of voir dire

concerning pretrial publicity in Skilling v. United States.

16 Affirming that “[n]o

hard-and-fast formula dictates the necessary depth or breadth of voir dire,” the

Court considered whether the district court’s questioning of potential jurors was

sufficient in the high-profile criminal trial of Jeffrey Skilling, the former

president of Enron Corporation.17 The Court held that it was not an abuse of

discretion for the district court to question potential jurors unilaterally rather

than permitting the lawyers to pose questions.18 Noting that the district court

“did not simply take the venire members who proclaimed their impartiality at

their word,” the Court concluded that the questioning was adequate to “uncover

concealed bias” and gave the court sufficient “face-to-face opportunity to gauge

demeanor and credibility.”19 The district court’s determinations in Skilling were

the “culmination of a lengthy process” that included screening questionnaires,

individual probing on the question of bias, repeated encouragements of candor,

and the opportunity for counsel to ask follow-up questions.20

We are convinced that the voir dire in this case was sufficient. Unlike the

perfunctory inquiries in Davis and similar cases, the district court’s questioning

here was extensive and probing. The court’s procedures were substantially the

same as those in Skilling. The potential jurors completed an eight-page

screening questionnaire that included multiple questions about media exposure

and bias. During voir dire, the court questioned all potential jurors individually

and out of the presence of the other potential jurors about their ability to be

16

130 S. Ct. 2896 (2010).

17 Skilling, 130 S. Ct. at 2917; see id. 2917-23.

18

Id. at 2918, 2923.

19

Id. at 2922-23.

20

Id. at 2919.

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impartial. The court followed up with additional questions to each potential

juror who indicated any possibility of bias. Furthermore, the court repeatedly

admonished potential jurors that they must put aside any preconceived beliefs

and decide the case based only on the evidence presented.21 Although the court

did not allow the lawyers to directly question jurors during the individual

questioning, both lawyers were present and could suggest lines of inquiry,

request follow-up questions, and make objections. Like Skilling, this case

involved allegations of complex financial crimes with substantial media coverage

prior to trial and similar risk of bias.22 Arguably the risk of bias was much

higher in Skilling, because the defendant himself was prominently featured in

voluminous pretrial media coverage whereas the publicity in this case focused

primarily on Pratt’s codefendants, the Jeffersons. In sum, we see no evidence

that the district court abused its discretion.

We reject Pratt’s contention that only a trial lawyer is capable of asking

the sufficiently probing and nuanced questions to uncover bias. It is well

established that voir dire is the district court’s responsibility.23 Although we

have recognized that the participation of counsel for the parties is important, we

have never held that the parties have any right to ask questions directly.24 To

the contrary, the Federal Rules of Criminal Procedure explicitly provide that the

21 See Skilling, 130 S. Ct. at 2918 n.21.

22 See United States v. Bieganowski, 313 F.3d 264, 273-74 (5th Cir. 2002) (considering

the context of media coverage in evaluating the sufficiency of voir dire).

23 See United States v. Cervantes, 706 F.3d 603, 613 (5th Cir. 2013) (“The trial court has

broad discretion to determine who will question potential jurors and what questions will be

asked.” (quoting United States v. Rasco, 123 F.3d 222, 231 (5th Cir. 1997)) (internal quotation

marks omitted)); see also Gonzalez v. United States, 553 U.S. 242, 250 (2008) (“[T]he presiding

judge has significant discretion over the structure of voir dire. The judge may ask questions

of the jury pool or . . . allow the attorneys for the parties to do so.”).

24 See United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977) (noting that the

opportunity to submit questions during voir dire aids counsel in uncovering bias).

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court may conduct the questioning of the venire itself and require the court only

to allow counsel to “submit further questions that the court may ask if it

considers them proper.”25 Furthermore, we have repeatedly held that the

presiding judge has broad discretion in determining the scope of questioning.26

Pratt’s counsel was present for voir dire and was able to and did submit

questions. The court complied with the Rules and did not abuse its discretion.

We also find no merit in Pratt’s argument that she was improperly forced

to use her peremptory challenges to strike potentially biased jurors. Peremptory

challenges are provided for by the Federal Rules of Criminal Procedure and are

not a part of the defendant’s constitutional right to a trial by an impartial jury.27

As a result, “a defendant’s exercise of peremptory challenges . . . is not impaired

when the defendant chooses to use a peremptory challenge to remove a juror who

should have been excused for cause.”28 A defendant who believes that a juror

should be struck for cause faces the “hard choice” of using a peremptory

challenge or accepting the potentially biased juror and arguing a Sixth

Amendment violation on appeal.

29

If the defendant chooses the former, then

there is no error unless “the trial court deliberately misapplied the law in order

to force the defendant[] to use a peremptory challenge” or the loss of the

25 FED. R. CRIM. P. 24(a)(2)(B).

26 See, e.g., Cervantes, 706 F.3d at 613; United States v. Rodriguez, 993 F.2d 1170, 1176

(5th Cir. 1993) (holding that the court abuses its discretion only “when there is insufficient

questioning to produce some basis for defense counsel to exercise a reasonably knowledgeable

right of challenge”).

27 United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (explaining that

peremptory challenges “are auxiliary; unlike the right to an impartial jury guaranteed by the

Sixth Amendment, peremptory challenges are not of federal constitutional dimension”); FED

R. CRIM. P. 24(b).

28 Martinez-Salazar, 528 U.S. at 317.

29

Id. at 315.

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peremptory challenge “result[ed] in the seating of any juror who should have

been dismissed for cause.”30 Here, Pratt does not argue that the court

deliberately misapplied the law, and there is no indication that any of the

empaneled jurors was biased.

Even assuming that the court erred in denying any of Pratt’s motions to

remove jurors for cause, Pratt concedes that she made the hard choice to use her

peremptory strikes to remove those biased jurors. During voir dire, Pratt did not

raise objections to any of the jurors who were actually empaneled although she

did move to disqualify several other potential jurors. When asked whether the

jury and the alternates were acceptable Pratt’s lawyer replied “Yes, Your

Honor.” Whether impartiality in the jury is achieved through disqualification

by the court or through the use of peremptory strikes, the absence of biased

jurors from the panel is all the Sixth Amendment requires.

In her reply brief, Pratt appears to suggest that a single juror, Pitman,

should not have been seated because of bias. In his initial questionnaire, Pitman

stated that he thought the Jeffersons were “corrupt” and “generally believe[d]

them to be guilty.” However, when asked to explain these statements during

voir dire, Pitman said he had “thought about that question since the

questionnaire” and concluded that he could judge Pratt on the evidence alone. 

Furthermore, because Pitman was questioned before the court took over the

entire process, Pratt’s lawyer was able to question Pitman extensively. Pratt’s

lawyer pressed Pitman repeatedly about bias, and Pitman’s answers do not

suggest any hedging on his part. Tellingly, Pratt never moved to strike Pitman

for cause at any point during jury selection and raised no objection to his

selection as the first member of the panel.

30 United States v. Sanchez-Hernandez, 507 F.3d 826, 830 (5th Cir. 2007) (citing

Martinez-Salazar, 528 U.S. at 316).

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Nor does our own review of the record compel the conclusion that the

district court committed manifest abuse of discretion in empaneling the twelve

jurors and two alternates who finally decided this case.

31 To be sure, several

jurors reported exposure to pretrial publicity, and some even admitted to

forming negative opinions of the Jeffersons and their associates, potentially

includingPratt. Nevertheless, we see nothing in these comments to demonstrate

that the jurors would have been unable to perform their duties.32 The district

court carefully questioned each juror about media exposure and, where

appropriate, asked probing questions to ferret out possible bias. All jurors who

had expressed any potential bias were questioned in detail and affirmatively

stated that they could set aside their preconceptions and apply the law as

instructed. We are mindful that the district court was present to observe the

demeanor and tone of the jurors as they answered and find no reason to second

guess the court’s decision.33 

III

Pratt next challenges the Government’s use of its peremptory strikes,

arguing that the strikes were racially motivated in violation of Batson v.

Kentucky.

34 We review for clear error the district court’s determination of

31 United States v. Snarr, 704 F.3d 368, 386 (5th Cir. 2013) (“The appellate court

reviews the district court’s ruling on jury impartiality for ‘manifest abuse of discretion.’”

(quoting United States v. Wharton, 320 F.3d 526, 535 (5th Cir. 2003))).

32

Id. at 386 (holding that dismissal for cause is appropriate only if “the prospective

juror’s views would prevent or substantially impair the performance of his duties as a juror

in accordance with his instructions and his oath” (quoting Soria v. Johnson, 207 F.3d 232, 242

(5th Cir. 2000)) (internal quotation marks omitted)).

33 Skilling v. United States, 130 S. Ct. 2896, 2923 (2010) (noting that, when reviewing

a district court’s decision to seat a juror over an objection of bias, “the deference due to district

courts is at its pinnacle”).

34

476 U.S. 79 (1986).

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whether the use of peremptory strikes was racially motivated.35

 To succeed in

a Batson challenge, Pratt must first establish a prima facie case that the

Government exercised its peremptory challenges on the basis of race.

36 The

burden then shifts to the Government to present a race-neutral explanation for

each strike.37 Once the Government presents race-neutral reasons, the burden

shifts back to Pratt to prove “purposeful discrimination.”38

We are concerned only with the third step of the Batson analysis. The

parties do not dispute that Pratt established a prima facie case of purposeful

discrimination, and in any event, the Government’s offer of race-neutral reasons

removes the question from our review.39 Nor does Pratt argue that the

Government failed to present at least one race-neutral reason for each strike.40

Pratt’s sole assertion is that the Government’s nondiscriminatory reasons lack

credibility in light of the stark effect of the Government’s strikes on the

composition of the jury. The Government struck five of the six potential jurors

who were black. In doing so, the Government used more than half of its allotted

peremptory strikes on black jurors, and only one juror of the twelve-member jury

that ultimately convicted Pratt was black.

35 United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008).

36 Smith v. Cain, 708 F.3d 628, 636 (5th Cir. 2013).

37

Id.

38

Id.

39 United States v. Williams, 610 F.3d 271, 280 (5th Cir. 2010) (“Where, as here, the

prosecutor tenders a race-neutral explanation for his peremptory strikes, the question of

Defendant’s prima facie case is rendered moot.” (quoting United States v. Williams, 264 F.3d

561, 571 (5th Cir. 2001)) (internal quotation mark omitted)).

40 See Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (“At this [second] step of

the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be

deemed race neutral.” (alteration in original) (quoting Hernandez v. New York, 500 U.S. 352,

360 (1991) (plurality opinion))).

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When challenged, the Government offered reasons for each of the five

black jurors it struck—Graves, Blanchard, Allen, Williamson, and Cosse. The

Government claimed that juror Graves had expressed a positive view of Pratt as

someone he admires and that he had communicated with his stepfather about

“people who work in city hall,” potentially including Pratt. The Government also

claimed that Graves gave a “bizarre nonresponsive answer” when asked about

possible prior contact with Pratt. Next, the Government claimed that juror

Blanchard was likely to have an affinity for Pratt, given that both had been

employees of the New Orleans Parish School Board. Like Blanchard, Pratt had

been a teacher. The Government also claimed that Blanchard made an “umhump” noise when the deputy chief of the Criminal Division introduced himself,

which the Government interpreted as negative. The Government asserted that

juror Allen appeared to have a negative attitude concerning jury service based

on body language and had some child-care issues that the Government felt

exacerbated his attitude. The Government then noted thatjurorWilliamson was

involved in a dispute with the IRS and had previously employed an attorney who

the prosecutor knew had some “interaction with the federal government” that

the prosecutor could not divulge but suggested was negative. Finally, the

Government claimed that juror Cosse made statements suggesting that he was

dissatisfied with the way the criminal justice system had treated his brother who

was sentenced to life in prison for a shooting that his brother claimed was in

self-defense.

Because the district court’s decision rests primarily an evaluation of the

prosecutor’s credibility,41 we will not disturb the district courts ruling “in the

41 United States v. Turner, 674 F.3d 420, 436 (5th Cir.) (“Given the subjective nature

of jury selection, the district court’s determination is likely to be based ‘largely on the court’s

evaluation of the credibility of counsel’s explanation.’” (quoting United States v. Perkins, 105

F.3d 976, 978 (5th Cir. 1997))), cert. denied, 133 S. Ct. 302 (2012).

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absence of exceptional circumstances.”42

“[T]he district court ha[s] the

advantage[] of observing the voir dire . . . and being able to consider the

demeanor of the prosecutor as he [makes] his explanation.”43 Circumstances

that call the Government’s credibility into question include the failure to engage

in meaningful questioning regarding the issue on which its allegedly

nondiscriminatory reason is based and failure to strike otherwise similarlysituated jurors of a different race.44

“[I]mplausible or fantastical” reasons are

also evidence of pretext.45

Pratt first points to three nonblack jurors whom the Government did not

strike and argues that they were similarly situated to Cosse and Blanchard.

46

Like Cosse, jurors Baum and Federico both had potentially negative views of law

enforcement based on prior experiences with the criminal justice system. 

Baum’s two stepsons had been convicted of passing bad checks and a state drug

offense, respectively, and Federico had been arrested for petty theft in 1986. 

Juror Bourgeois had the same work background as Blanchard. We are not

persuaded by these comparisons.

Although Baum’s two stepsons had been convicted of crimes and Federico

had been arrested, neither juror expressed any dissatisfaction with the police or

42 Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (quoting Hernandez, 500 U.S. at 366).

43 Turner, 674 F.3d at 436.

44 Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009) (“The State’s failure to

question the juror on that topic is some evidence that the asserted reason was a pretext for

discrimination.” (citing Miller-El v. Dretke, 545 U.S. 231, 246 (2005))); id. (“Ifthe State asserts

that it struck a black juror with a particular characteristic, and it also accepted nonblack

jurors with that same characteristic, this is evidence that the asserted justification was a

pretext for discrimination, even if the two jurors are dissimilar in other respects.” (citing

Miller-El, 545 U.S. at 241)).

45

Id.

46 Pratt does not provide any comparative examples regarding Graves, Allen, or

Williamson and our review of the record revealed none.

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the criminal justice system and both stated that their respective experiences

would not affect their ability to serve on the jury. In contrast, Cosse made

statements that plausibly suggested animosity towards the criminal justice

system. It is true that the Government did not seek to have the court ask any

follow-up questions, but the differences are sufficient to explain the

Government’s choice to strike Cosse but not Baum and Federico. Pratt’s

comparison of Bourgeois to Blanchard is similarly unconvincing. Although

Bourgeois did have a career in education, she was employed by the Archdiocese

of New Orleans, not the New Orleans Parish School Board. Only Blanchard was

employed by the same organization as Pratt. The Government had a plausible

reason for distinguishing between the two, and we find no justification for

reversing the district court’s conclusion that the Government’s explanation was

credible.

Pratt also implicitly argues that the Government’s race-neutral reasons

are implausible because they are unsupported by the evidence. However, other

than repeatedly expressing disbelief that there could be any nonbiased

explanation for striking five of the six black jurors, Pratt does not offer specific

arguments as to why any of the Government’s stated reasons were implausible

or fantastical and merely argues a different interpretation of the record. Pratt’s

argument boils down to an assertion that the Government should not be believed

because the Government struck five of the six African-American jurors and that

“[h]owever plausible or implausible the explanations were here, the numbers do

not lie.”47 Although it is true that the raw numbers are a factor to be considered,

47 Pratt also repeatedly points out that her lawyer requested a ten-minute break to

review his notes in order to rebut the Government’s race-neutral reasons for striking the

jurors. Although she implies that the court’s refusal to grant the brief recess constituted an

error, she cites no authority to support that implication and makes no argument as to why the

lack of a break at the time would affect her argument on appeal. Furthermore, Pratt neglects

to acknowledge that the court granted a five-minute break immediately after her lawyer first

indicated the intention to raise a Batson challenge.

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Pratt cites no case in which this court has held that a district court committed

clear error in crediting the prosecutor’s race-neutral reasons based solely on such

evidence. Because Pratt offers no support for her contention that the

Government’s reasons are “implausible or fantastical,” this argument fails as

well.

IV

We next address Pratt’s argument that the fourth superseding indictment

charging her was constitutionally deficient because it “omitted all references to

specific acts of racketeering activity,” leaving only “generic references to the mail

fraud and money laundering statutes.” Pratt complains that it is impossible to

determine the pattern of racketeering activity that she was charged with

conspiring to commit, and therefore she was unable to mount an effective

defense and is not protected from double jeopardy.

We review the sufficiency of an indictment de novo.48 To pass

constitutional muster, an indictment must “allege[] every element of the crime

charged and in such a way as to enable the accused to prepare his defense and

to allow the accused to invoke the double jeopardy clause in any subsequent

proceeding.”49 Although “[i]t is generally sufficient that an indictment set forth

the offense in the words of the statute itself,” the indictment must also “be

accompanied with such a statement of the facts and circumstances as will inform

the accused of the specific offense.”50

48 United States v. Ratcliff, 488 F.3d 639, 643 (5th Cir. 2007).

49

Id. (quoting United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002))

(internal quotation marks omitted).

50 Hamling v. United States, 418 U.S. 87, 117 (1974).

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Pratt was charged under 18 U.S.C. § 1962(d) with conspiring to violate a

substantive RICO provision, § 1962(c).51 The elements of a conspiracy under

§ 1962(d) are simply “(1) that two or more people agreed to commit a substantive

RICO offense and (2) that the defendant knew of and agreed to the overall

objective of the RICO offense.”52 The defendant need not be one of the people

who agreed to commit the substantive offense.53 Section 1962(c) makes it

“unlawful for any person employed by or associated with any enterprise . . . to

conduct or participate, directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity.”54

The 35-page fourth superseding indictment charging Pratt was

constitutionally sufficient. It “alleges every element of the crime charged” using

language that tracks the relevant statutory provisions and includes “a statement

of the facts and circumstances” that constitute conspiracy to conduct the affairs

of the Enterprise, members of which engaged in a “pattern of racketeering

activity.”55

It alleges the existence of an enterprise comprising Pratt, the

51

18 U.S.C. § 1962(d) (“It shall be unlawful for any person to conspire to violate any of

the provisions of subsection (a), (b), or (c) of [§ 1962].”).

52 United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005) (emphasis added) (quoting

United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998)) (internal quotation marks

omitted).

53

Id. at 296.

54

18 U.S.C. § 1962(c).

55 A “‘pattern of racketeering activity’ requires at least two acts of racketeering

activity” that occur within ten years of each other. 18 U.S.C. § 1961(5). An act of racketeering

activity is defined in part as any act that is indictable under enumerated provisions of the

criminal code. Id. § 1961(1)(B). In this case, the indictment alleges that the “pattern of

racketeering activity” consisted of multiple, specific acts of mail fraud, in violation of 18 U.S.C.

§ 1341, and of money laundering, in violation of § 1956. In order to constitute a pattern, the

predicating acts must also be connected in a way that shows a “threat of continuing activity.”

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989). The activities alleged in this case meet

this standard. See id. 239-41.

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Jeffersons, and related nonprofit organizations whose purpose “was to exercise

and preserve power over and within the government of the State of Louisiana,

the City of New Orleans, Orleans Parish, and elsewhere, for the financial and

political benefit of [the Enterprise].” It further alleges that Pratt (along with the

Jeffersons and “others known . . . and unknown”) fraudulently funneled state

and federal grant money to nonprofit entities they controlled; established,

maintained, and controlled bank accounts to further the scheme; and maintained

false accounts and submitted falsified paperwork in connection with the scheme.

Contrary to Pratt’s claim, the indictment need not contain formal charges

of the underlying racketeering activities or articulate the evidence that will be

used to prove the allegations.56 The Constitution requires only enough

specificity to allow the defendant to defend against the allegations, and the

indictment meets that standard. The indictment identifies the people, nonprofit

entities, government programs, funds, and bank accounts involved in specific

acts of money laundering and mail fraud. It describes in detail thirteen specific

instances of misappropriation of funds or resources undertaken by the criminal

Enterprise, including factual details that, if proven, would constitute mail fraud

and money laundering. Finally, the indictment contains numerous allegations

of conduct by Pratt that demonstrate that she agreed to the objective of the

Enterprise, including her relationship with the Jeffersons, efforts to steer money

to the Enterprise, and receipt of benefits from the misappropriated funds. In

sum, the indictment more than adequately alleges factual circumstances

56 See United States v. Sutherland, 656 F.2d 1181, 1197 & n.12 (5th Cir. Unit A 1981)

(holding that a RICO conspiracy indictment was sufficient although it did not identify specific

dates, locations, or additional details besides the participants and an outline of the alleged

bribery scheme).

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sufficient to prove that two or more people agreed to violate RICO and that Pratt

knew of and agreed to the overall objective of the RICO offense.57

For the same reasons, the indictment is sufficient to protect Pratt from a

second prosecution for the same crime. The Double Jeopardy Clause of the

Constitution “protects against a second prosecution for the same offense after

acquittal, against a second prosecution for the same offense after conviction, and

against multiple punishments for the same offense.”58 Pratt presumably fears

a second prosecution for precisely the same crime—conspiracy to violate RICO

under § 1962(d)—based on the same underlying racketeering activities.59 

It is important to clarify that Pratt does not challenge the sufficiency of the

evidence used to convict her. In other words, she does not argue that there was

insufficient evidence of a pattern of racketeering activity. Instead she argues

that it is impossible to determine on what conduct the jury based its verdict. In

other words, Pratt argues that the indictment impermissibly alleged more than

one pattern of racketeering activity. Pratt misunderstands the nature of the

indictment’s role in protecting her against double jeopardy. 

As discussed above, the indictment lays out a detailed description of

conduct that, if proved, demonstrates that (1) two or more persons agreed to

engage in a pattern of racketeering activity and (2) Pratt agreed to further the

objective of that pattern. Having been convicted, Pratt is protected by the

Constitution from a second prosecution for the same crime based on the same

57 See Delgado, 401 F.3d at 296.

58 United States v. Phillips, 664 F.2d 971, 1005 (5th Cir. Unit B 1981).

59 To the extent Pratt’s argument contemplates a future prosecution for a charge other

than § 1962(d), it is unlikely she would be protected by double jeopardy in any event. We have

held that separate prosecutions for conspiracy to violate RICO and for substantive RICO

violations based on the same underlying racketeering activities do not violate the Double

Jeopardy Clause. United States v. Martino, 648 F.2d 367, 383 (5th Cir. 1981). Nor is

successive prosecution in different proceedings for separate crimes based on the same conduct

prohibited as a general matter. United States v. Dixon, 509 U.S. 688, 705 (1995).

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factual allegations. That the jury could have found the existence of a pattern of

racketeering activity based on some or all of the indictment’s factual allegations

is of no moment. An indictment is not constitutionally deficient simply because

it includes more factual allegations than are required to prove every element of

the crime charged.60 There is no merit in Pratt’s assertion that she would be

unable to raise a Double Jeopardy argument were she ever prosecuted a second

time for conspiracy to violate RICO predicated on that same conduct alleged in

the indictment.

V

Pratt challenges her sentence. We first note that this case comes to us in

an unusual procedural posture. Two types of racketeering activity in violation

of 28 U.S.C. § 1962 were alleged—mail fraud and money laundering. The

district court calculated the sentencing guidelines range of imprisonment based

on money laundering. As we will discuss below, it appears that the sentencing

guidelines range should have been based on mail fraud. Pratt has not, however,

argued in her brief that the district court erred in using a money laundering

offense to calculate the applicable Guidelines range. She has accordingly

waived61any contention that the district court erred in using a money

laundering offense rather than a mail fraud offense in calculating the advisory

sentencing guidelines range. Nevertheless, in order to determine if there was

60 See United States v. Mauskar, 557 F.3d 219, 225 (5th Cir. 2009) (“The allegation in

a single count of a conspiracy to commit several crimes is not duplicitous, for [t]he conspiracy

is the crime, and that is one, however diverse its objects.” (alteration in original) (quoting

United States v. Cooper, 966 F.2d 936, 939 (5th Cir. 1992)) (internal quotation marks

omitted)); see alsoUnited States v. Hedgepeth, 434 F.3d 609, 612 (3d Cir. 2006) (“As long as the

crime and the elements of the offense that sustain the conviction are fully and clearly set out

in the indictment, the right to a grand jury is not normally violated by the fact that the

indictment alleges more crimes or other means of committing the same crime.” (quoting United

States v. Miller, 471 U.S. 130, 136 (1985))).

61 See FED. R. APP. P. 28(a)(9)(A).

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plain error, we will consider the highest range that the Government contends

was the correctly calculated range, as we explain further below.

Sentencing for a conviction under 28 U.S.C. § 1962 is addressed by

Guidelines section 2E1.1.62 Because a RICO offense necessarily involves conduct

by someone, although not necessarily the defendant, that would itself be a

separate offense (i.e. the “underlying racketeering activity”), section 2E1.1

mandates that the district court select a base offense level that is the greater of

19 or the highest calculated offense level applicable to the offense(s)

corresponding to the underlying racketeering activity.63If the underlying

racketeering activity comprises more than one offense, each should be treated

as a separate count of conviction for the purposes of calculating the offense

level.64“The racketeering act that yields the greatest offense level is [then] used

to determine the guideline range.”65In other words, section 2E1.1 requires the

district court to calculate independently the total offense level of each separate

underlying offense and then select whichever is greatest (or 19, if that number

is greater).66

Unlike most other sections in Chapter Two, section 2E1.1 oftheGuidelines

does not provide for adjustments based on special offense characteristics,

presumably because the district court will have already calculated the special

62 U.S. SENTENCING GUIDELINES MANUAL § 2E1.1.

63

Id.

64

Id. § 2E1.1 cmt. n.1.

65 United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); see U.S.SENTENCING

GUIDELINES MANUAL § 2E1.1 cmt. n.1.

66 See Posada-Rios, 158 F.3d at 880-81 (holding that the district court’s application of

the total offense level of the underlying racketeering activity, murder, was proper under

section 2E1.1); see also United States v. Mouzone, 687 F.3d 207, 220 (4th Cir. 2012) (affirming

the district court’s calculation of the underlying racketeering activity’s total offense level for

the purposes of section 2E1.1).

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offense characteristics applicable to the offense constituting the underlying

racketeering activity.67 Convictions for mail fraud and money laundering—the

two underlying racketeering activities alleged in this case—are sentenced under

sections 2B1.1 and 2S1.1, respectively.

Although the Presentencing Report (PSR) calculated an advisory

sentencing range of 70 to 87 months of imprisonment based on mail fraud and

enhancements that are applicable in mail fraud cases, and recommended a

sentence of 70 months, the district court concluded that money laundering, not

mail fraud, was the proper underlying racketeering activity for the purposes of

calculating the Guidelines range under section 2E1.1. The court observed that

money laundering has a base offense level of 8 and mail fraud has a base offense

level of 7 and held that it was obligated to select the higher number. The court

then applied the enhancements that the PSR had calculated for the mail fraud

offense, which resulted in a total offense level of 28 and a sentencing range of 78

to 97 months. The court then sentenced Pratt to 87 months, which it described

as “a mid-level sentence, perhaps to some extent to the high level.”

In her appeal, Pratt contends that the district court erred by applying a

two-level enhancement pursuant to Guidelines section 2B1.1(b)(8)(A)68and that

the court miscalculated the amount of “laundered funds” in determining the base

offense level for money laundering pursuant to section 2S1.1(a)(2). The

guideline applicable to money laundering, section 2S1.1, directs the court to

67 Compare U.S. SENTENCING GUIDELINES MANUAL § 2E1.1 with id. § 2B1.1(b)

(articulating the special offense characteristics applicable to crimes oftheft), and id. § 2S1.1(b)

(articulating the special offense characteristics applicable to crimes of money laundering).

68 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(8), which provides:

(8) If (A) the defendant was convicted of a Federal health care offense involving

a Government health care program; and (B) the loss under subsection (b)(1) to

the Government health care program was (i) more than $1,000,000, increase by

2 levels; (ii) more than $7,000,000, increase by 3 levels; or (iii) more than

$20,000,000, increase by 4 levels.

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calculate the base offense level as “8 plus the number of offense levels from the

table in section 2B1.1 (Theft, Property Destruction, and Fraud) corresponding

to the value of the laundered funds.”69

“‘Laundered funds’ means the property,

funds, or monetary instrument involved in the transaction,financialtransaction,

monetary transaction, transportation, transfer, or transmission in violation of

18 U.S.C. [§] 1956 or 1957.”70 However, the district court did not determine the

value of the laundered funds by calculating the amount “involved in the

transaction(s)” that constituted money laundering. Instead, the district court

calculated the amount of “loss” based on the value of all of the goods and services

misappropriated, and used that amount to determine the enhancement by

reference to the table in section 2B1.1. Although that would be the proper

method for applying the table to a crime of theft under section 2B1.1 (such as

mail fraud), it does not accord with the instructions in section 2S1.1, which

require the district court to determine the amount of funds actually laundered. 

The court also erred in applying the two-level enhancement under section

2B1.1(b)(8)(A). This enhancement is found under special offense characteristics

in section 2B1.1 and is not applicable to a crime that falls under section 2S1.1.

At the sentencing hearing in the district court, Pratt did not object to the

section 2B1.1(b)(8)(A) enhancement or the implicit determination that the

amount of “laundered funds” equaled the amount of loss. The Government

contends, and we agree, that our review of these issues is for plain error. Under

that standard of review, we will reverse a sentence only “(1) if there was error,

(2) if it was plain, (3) if the error affects substantial rights, and (4) if allowing

that error to stand seriously affects the fairness, integrity, or public reputation

69 U.S. SENTENCING GUIDELINES MANUAL § 2S1.1(a)(2) (emphasis added).

70

Id. § 2S1.1 cmt. n.1 (emphasis added).

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of judicial proceedings.”71 A misapplication of the unambiguous instructions of

the Guidelines is error that was plain.72 Therefore, relief depends on whether

the error affected Pratt’s substantial rights and seriously affects the fairness,

integrity, or public reputation of judicial proceedings.

The Government asserts that if the district court had correctly calculated

the advisory Guidelines range based on mail fraud, rather than money

laundering, the advisory Guidelines range would have been 70 to 87 months of

imprisonment. Since the 87-months’ sentence would still be within that range,

the Government argues that Pratt has not demonstrated plain error. An error

in the Guidelines calculation affects a defendant’s substantial rights only if there

is “a reasonable probability that, but for the district court’s misapplication of the

Guidelines, he would have received a lesser sentence.”73 A reasonable

probability of a lesser sentence is presumed when “the incorrect range is

significantly higher than the true Guidelines range, and . . . the defendant is

sentenced within the incorrect range.”74 However, “when the correct and

incorrect ranges overlap and the defendant is sentenced within the overlap, ‘we

do not assume, in the absence of additional evidence, that the sentence affects

a defendant’s substantial rights.’”75

There is “additional evidence” thatPratt’s substantial rights were affected. 

The transcript of the sentencing hearing reflects that the district court chose a

sentence of 87 months of imprisonment because it was within what the district

71 United States v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012).

72 See United States v. Olano, 507 U.S. 725, 732-33 (1993) (“Deviation from a legal rule

is ‘error.’”); id. at 734 (“‘Plain’ is synonymous with ‘clear’ or . . . ‘obvious.’”).

73 United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam) (citing

United States v. Blocker, 612 F.3d 413, 416-17 (5th Cir. 2010)).

74

Id.

75

Id. at 290 (emphasis omitted) (quoting Blocker, 612 F.3d at 416).

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thought was the correctly calculated advisory guidelines range. The district

court explained to the defendant that he felt that it was appropriate to apply the

guidelines and not a variance or a non-Guidelines sentence. The district court

also stated on the record that it was choosing a sentence within the middle of the

Guidelines range as the appropriate sentence, indicating that the Guidelines

range calculated by the district court was a primary factor in the selection of the

87-months’ sentence as within a range of 78-97 months. By contrast, the 87-

months’ sentence is the highest sentence under a range of 70 to 87 months’ of

imprisonment, which is the highest range that the Government says applies. A

middle-of-the-Guidelines sentence under a 70 to 87 months’ range would be

approximately 78 to 79 months, which is 8 to 9 months shorter than the prison

term selected by the district court. Moreover, we cannot say that a range of 70

to 87 months is the correctly calculated range based on the record before us. 

There may be issues raised when mail fraud, rather than money laundering, is

used as the basis for calculating the Guidelines range that might result in a

lower range than 70 to 87 months.

As discussed above, section 2E1.1 instructs the sentencing court to select

a base offense level from the greater of 19 or the highest offense level of the

underlying racketeering offenses. The PSR started with this base offense level

and then applied a 16-level enhancement under section 2B1.1(a) based on a

calculated loss of over $1 million, a 2-level enhancement under section

2B1.1(b)(8)(A) because Pratt “misrepresented that she was acting on behalf of

a charitable, religious, or political organization or government agency,” and a 2-

level enhancement because Pratt “abused a position of public or private trust”

pursuant to § 3B1.3. The resulting a total offense level of 27 resulted in a

sentencing range of 70 to 87 months, and the PSR recommended a sentence of

70 months. We are not in a position to retrace all of the steps required to

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determine if the PSR correctly calculated the applicable sentencing range.

* * *

Pratt’s conviction is AFFIRMED. The sentence is VACATED and

REMANDED for further proceedings.

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