UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4744

ANGELO MARCELLUS IRVING,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4745

MARCUS JOHNSON, a/k/a Pep, a/k/a

Little Marcus,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4749

COREY MURCHISON, a/k/a Popeye,

Defendant-Appellant. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-01-304)

Submitted: April 18, 2003

Decided: June 3, 2003
Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

David Lassiter, Jr., JEFFERSON & LASSITER, Richmond, Virginia;

William H. Sooy, Richmond, Virginia; David R. Lett, Richmond, Virginia, for Appellants. Paul J. McNulty, United States Attorney, Peter

S. Duffey, Assistant United States Attorney, Robert E. Trono, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Angelo Marcellus Irving and Marcus Johnson were convicted by a

jury of violating the Racketeer Influenced and Corrupt Organizations

Act ("RICO") and conspiracy to distribute crack cocaine. Their codefendant, Corey Murchison, was convicted of conspiracy to distribute crack cocaine. After considering the issues raised on appeal, we

affirm. 

I.

First, Irving asserts that the evidence was insufficient to convict

him of the RICO offense, 18 U.S.C. § 1962 (2000), as a member of

the Fulton Hill Hustlers ("FHH"). Irving contends that the Government failed to prove that an enterprise existed, that he knowingly par2 UNITED STATES v. IRVING
ticipated in the enterprise, and that he committed the predicate acts of

murder, attempted murder, and conspiracy to distribute crack cocaine.

The substantive RICO statute provides as follows:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering activity

or collection of unlawful debts. 

18 U.S.C. § 1962(c). An "enterprise" is a "group of persons associated

together for a common purpose of engaging in a course of conduct,"

which may be proved "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function

as a continuing unit." United States v. Turkette, 452 U.S. 576, 583

(1981). We have noted that a RICO enterprise is characterized by

"continuity, unity, shared purpose and identifiable structure." United

States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). 

After viewing the record in the light most favorable to the Government, we find that substantial evidence supports the conclusion that

a racketeering enterprise existed. Although Irving argues that the

members of FHH had no common purpose and each acted for himself,

the Government presented numerous witnesses who testified that the

common purpose of FHH was dealing crack cocaine, a goal that was

pursued on a daily basis for many years. In addition, the Government

presented evidence regarding the supply of cocaine to FHH and the

procedures by which FHH sold cocaine on the streets of Fulton Hill

and supported each other in that regard. Further, the evidence showed

that FHH members committed various robberies, attempted murders,

and murders in order to intimidate rivals, punish traitors, and collect

drug money. This evidence was sufficient for a reasonable factfinder

to conclude that FHH constituted an ongoing organization with a definite structure and the shared purpose of enriching the members of the

enterprise and preserving the power of the enterprise. 

Moreover, the evidence also supports the conclusion that Irving

was associated with FHH. The Government introduced evidence that

UNITED STATES v. IRVING 3
Irving sold cocaine daily with FHH for many years. In addition, the

evidence showed that Irving carried a firearm; that he and Murchison

attempted to murder Vincent Allen who owed them both money for

drugs; that he killed Walter Broaddus, who was from a competing

drug organization, to enhance his position with FHH; and that he and

other members of FHH participated in a revenge-driven shoot-out

with another drug organization. This evidence was sufficient for a

reasonable factfinder to conclude that Irving had an ongoing association with FHH. 

Finally, concerning the sufficiency of the evidence regarding the

predicate acts, Irving argues that the numerous cooperating witnesses

were not worthy of belief. However, determinations of credibility are

within the sole province of the jury and are not susceptible to judicial

review. United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996).

II.

Appellants argue that out-of-court statements made by various

FHH members should have been excluded as hearsay. Quincy Burrell

testified that John Fitzgerald and Daco Edwards told him about a turfrelated shoot-out involving Murchison and Johnson and the murder of

Marcus Turner by Johnson and Edwards. Appellants contend that the

district court failed to require that independent evidence establish the

existence of the conspiracy before admitting the statements. 

Rule 801(d)(2)(E) provides that statements by a co-conspirator,

made during the course of and in furtherance of the conspiracy, are

not hearsay. Accordingly, when the Government shows by a preponderance of the evidence that a conspiracy existed of which the defendant was a member, and that the co-conspirator’s statements were

made in furtherance of the conspiracy, the statements are admissible.

United States v. Neal, 78 F.3d 901, 904-05 (4th Cir. 1996). To admit

a co-conspirator’s out-of-court statement, the Government must demonstrate the existence of the conspiracy by evidence extrinsic to the

hearsay statements. United States v. Stroupe, 538 F.2d 1063, 1065

(4th Cir. 1976). We review the district court’s decision to admit such

testimony for an abuse of discretion. Neal, 78 F.3d at 905. 

Prior to the admission of the statements at issue, Burrell testified

that FHH was a gang which he joined in 1992. He stated that each of

4 UNITED STATES v. IRVING
the Defendants was a member along with Edwards and Fitzgerald and

that FHH sold crack on a daily basis. He testified regarding FHH

symbols, turf protection, police lookouts, initiations, and enforcement

procedures. This evidence amply supported admission of the coconspirators’ statements by a preponderance of the evidence. 

However, Appellants contend that Burrell’s testimony was not

extrinsic evidence, as required by the Rule. Appellants’ argument

evinces a misunderstanding of the rule. While corroboration is

required for the admission of co-conspirator statements, direct testimony at trial is extrinsic to the out-of-court statements, even if the

testimony is given by co-conspirators. United States v. Portela, 167

F.3d 687, 703 (1st Cir. 1999). Thus, the district court correctly admitted the disputed statements. 

III.

Murchison challenges his firearm enhancement, arguing that he

was unaware and had no reason to conclude that his co-conspirators

used firearms. The district court’s decision that a weapon enhancement applies is a factual finding reviewed for clear error. United

States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Here, Vincent

Allen testified at trial that, at a point when he owed FHH money for

crack, Murchison and two other FHH members accosted him, hit him

with a gun Murchison was carrying, and shot at him. We find that the

district court did not err in applying the enhancement in this case. 

IV.

For the reasons discussed, we affirm Appellants’ convictions and

sentences. We deny Irving’s motion to stay the case. We dispense

with oral argument, because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process. 

AFFIRMED

UNITED STATES v. IRVING 5