PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________ 

Nos. 14-1493, 14-2677 and 14-3975

UNITED STATES OF AMERICA

v.

KIDADA SAVAGE, agent of DA, agent of LI’L SIS, agent 

of DIZMATIC, STEVEN NORTHINGTON, also known as 

Smoke, also known as S1, also known as Syeed Burhannon, 

also known as Michael Tillery, also known as Darnell Doss, 

agent of Dollar Bill, ROBERT MERRITT, a/k/a 

CORRECTIONAL OFFICER BISHOP, a/k/a B.J., agent of 

DIRT

Kidada Savage,

Appellant in No. 14-1493 

Steven Northington,

Appellant in No. 14-2677

Robert Merritt, Jr.,

Appellant in No. 14-3975

_______________ 

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-07-cr -00550-006, 005, and 004)

District Judge: Honorable R. Barclay Surrick

_______________
2

Argued 

December 15, 2022

Before: JORDAN, FUENTES and SMITH, Circuit Judges

(Filed: October 24, 2023)

_______________

Mark A. Berman [ARGUED]

Michele A. Smith

Hartmann Doherty Rosa Berman & Bulbulia

433 Hackensack Avenue – Suite 1002

Hackensack, NJ 07601

 Counsel for Kidada Savage

Thomas C. Egan, III [ARGUED]

618 Swede Street

Norristown, PA 19401

 Counsel for Steven Northington

Susan M. Lin [ARGUED]

Kairys Rudovsky Messing Feinberg & Lin

718 Arch Street – Ste. 501 South

Philadelphia, PA 19106

William R. Spade, Jr.

368 Laurel Chase Drive

Blowing Rock, NC 28605

 Counsel for Robert Merritt
3

John M. Gallagher

Office of United States Attorney

504 W. Hamilton Street – Suite 3701

Allentown, PA 18101

David E. Troyer

Robert Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street – Suite 1250

Philadelphia, PA 19106

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

The three appellants before us – Kidada Savage, Steven 

Northington, and Robert Merritt – are serving life sentences for 

their roles in the Kaboni Savage Organization (“KSO”), a 

violent drug trafficking gang that was based in North 

Philadelphia. The gang dealt in death and destruction, 

including on one occasion the firebombing of the family home 

of a former KSO member who had become a government

witness. That firebombing killed six people, including four 

children. 

We previously upheld the conviction and death sentence 

of the gang’s eponymous ringleader, Kaboni Savage, who 

ordered the firebombing. (To avoid confusion, this opinion 

refers to Kaboni Savage and his sister Kidada Savage by their 

first names.) In a corresponding opinion, we considered and 
4

rejected all appellate arguments raised by Kaboni, most of 

which had been advanced or adopted by Kidada, Merritt, and 

Northington. See United States v. Savage, 970 F.3d 217, 231 

(3d Cir. 2020). In the pages that follow, we resolve the 

remaining arguments. 

I. BACKGROUND

Under Kaboni’s leadership, the KSO sold powder

cocaine, “crack” cocaine, and liquid phencyclidine (“PCP”) in 

North Philadelphia from 1997 through 2010. Each of the three 

appellants was affiliated in some way with the KSO. While 

Kaboni was incarcerated, Kidada coordinated KSO activities 

and issued orders to other KSO members on her brother’s 

behalf. Northington worked for the KSO as a drug dealer and 

enforcer. On Kaboni’s instructions he caused and aided one 

murder and committed another.

1

 Merritt, while not a fullfledged KSO member, sold drugs for the organization, often 

1 As discussed in more detail below, Northington 

controlled a drug block in North Philadelphia. He drove nonparty Lamont Lewis to the drug block and identified rival 

dealer Barry Parker, who Lewis then shot for encroaching on 

the territory. Northington also participated in the murder of 

Tybius Flowers the day before Flowers was scheduled to 

testify against Kaboni in a state-court murder trial.
5

with his older cousin, KSO member Lamont Lewis, and he 

participated in the firebombing murders.

2

 

A. The Coleman Family Murders 

The KSO’s murders of the Coleman Family occurred in 

October of 2004. Between July and October of that year, 

Kaboni made numerous phone calls to Kidada to discuss his 

concern that KSO member Eugene Coleman was cooperating

with the police.3

 On October 8, 2004, Kaboni and Lewis 

briefly spoke over the phone, during which time Lewis 

expressed his fealty to Kaboni. Lewis then handed the phone 

over to Kidada. After the Savage siblings finished their 

conversation, Kidada told Lewis that Kaboni had ordered him 

to “firebomb the Colemans’ house.” (App. at 10985-86.) 

Kidada instructed that the firebombing should be done around 

3:00 or 4:00 a.m. when “everybody is in the house,” and she 

promised to give Lewis $5,000 for his efforts. (App. at 10986.) 

Lewis enlisted Merritt to assist him, and early the next 

morning the two cousins set out to firebomb the Coleman 

family home. Before going to the Coleman house, Lewis and 

Merritt went to a local gas station, bought two gas cans, filled 

2 Lamont Lewis sold drugs for the KSO, which Lewis 

would “bag up” in Kaboni’s basement. (App. at 10875, 

10897.) Lewis entered into a plea agreement with the 

government in this case and testified as a government witness. 

3 Non-party Eugene Coleman also sold drugs for the 

KSO. He was known within the KSO to be non-violent. 

Coleman became a cooperating witness in a 2004 case against 

Kaboni, as discussed in more detail herein. 
6

them with gasoline, and put them in the trunk of the car. They 

then headed to Merritt’s house in West Philadelphia to pick up 

a gun, but at approximately 4:08 a.m., a Philadelphia highway 

patrol officer pulled them over for speeding. The officer was 

called to another scene, so he allowed them to leave and mailed 

Lewis the speeding ticket. 

After getting the gun, Lewis and Merritt returned to 

North Philadelphia and parked around the corner from the 

Coleman house. They removed the cans from the trunk, 

stuffed a cloth into one of the cans to serve as a wick, and 

carried the two cans to the house. As they arrived at the front 

porch, Lewis gave Merritt a lighter, then he kicked in the front 

door, entered the house, and fired two shots. Lewis heard a 

woman say, “Who’s that?” when he kicked in the door. (App.

at 11002.) Merritt immediately ran into the house and threw a 

lit gas can into the living room, causing a “big explosion.” 

(App. at 11002). He then exited the house and grabbed the 

unlit can and threw it into the house, too. Lewis then left a 

message on Kidada’s phone, saying “it was done.” (App. at 

11003-04).

The following individuals were killed by the arson: 

Marcella Coleman, 54, Tameka Nash, 34, Sean Rodriguez, 15, 

Tajh Porchea, 12, Khadijah Nash, 10, and Damir Jenkins, 15 

months.4

 

4 Lewis received $2,000 and a bottle of PCP oil for 

killing the Coleman family. Lewis complained to Kidada that 

she had not informed him that there were children in the home. 

When Coleman learned that his family members were 

murdered, he entered the protection of the U.S. Marshals’ 

Witness Security Unit. 
7

After the Coleman family murders, the government 

obtained court orders to place a recording device near Kaboni’s 

federal detention center cell and another in the detention 

center’s visitation room to intercept conversations Kaboni had 

with his friends, associates, and other inmates. In the 

recordings of the conversations that followed, Kaboni made

various vulgar and brazen statements expressing satisfaction 

with the deaths of the Coleman family; he also threatened to 

kill additional witnesses and their relatives. See infra n.19.

B. Procedural History 

On May 9, 2012, a grand jury in the Eastern District of 

Pennsylvania returned the Fourth Superseding Indictment in 

this case, upon which the parties ultimately proceeded to trial. 

The three defendants here were charged as follows: Count One 

charged Kidada, Northington, and Merritt with RICO 

conspiracy; Counts Five and Seven charged Northington with 

murder in aid of racketeering for the deaths of Barry Parker and 

Tybius Flowers, respectively; Count Nine charged Merritt with 

conspiracy to commit murder in aid of racketeering; Counts 

Ten through Fifteen charged Merritt and Kidada with murder 

in aid of racketeering, one count for each of the six Coleman 

family members who perished in the fire; Count Sixteen 

charged Merritt and Kidada with retaliating against a witness; 

and Count Seventeen charged Merritt and Kidada with using

fire in the commission of a felony.5

 

5 Count Eight, which charged Northington with witness 

tampering, was dismissed prior to trial, by agreement with the 

government. Kaboni was charged on all counts (Counts Two, 

Three, Four, and Six pertained only to him).
8

On May 13, 2013, the jury found Kidada and 

Northington guilty of all the crimes with which they had been

charged; the jury found Merritt guilty on the RICO conspiracy

count but not guilty as to all other counts. 

Northington’s capital penalty phase for the Flowers 

murder, Count Seven, commenced on June 5, 2013. The jury 

unanimously sentenced Northington to life imprisonment on 

that count, and the District Court sentenced him to two 

additional, concurrent terms of life imprisonment for Counts 

One and Five. On February 21, 2014, the District Court 

sentenced Kidada to concurrent terms of life imprisonment on 

Counts One and Ten through Sixteen, and the Court imposed a 

consecutive ten-year sentence on Count Seventeen. On 

September 19, 2014, the District Court sentenced Robert 

Merritt to life imprisonment on Count One. All four 

defendants timely appealed.6

 

As noted earlier, we affirmed the jury’s guilty verdict 

and the District Court’s imposition of a capital sentence on 

Kaboni in a precedential opinion.7

 The following discussion

6 Kaboni’s penalty phase hearings began on May 21, 

2013. On May 31, the jury unanimously sentenced him to 

death on all 13 capital counts (Counts 2-7 and 10-16). On June 

3, the District Court imposed death sentences on those counts,

and also sentenced him to life imprisonment on Count 1 and to

ten-year terms of imprisonment on Counts 9 and 17.

7 Among other things, we held that (1) the late 

appointment of a substitute capital-qualified counsel to 

represent Kaboni did not constitute a constructive denial of the 
9

pertains to arguments raised by Kidada, Merritt, and 

Northington that we did not reach in our earlier opinion. 

II. DISCUSSION8

A. The District Court did not abuse its discretion 

in refusing to grant Kidada a new trial based 

on a conflict allegedly held by one of her two 

attorneys.

Kidada asserts that she was denied her Sixth 

Amendment right to counsel because one of her attorneys, 

right to counsel, Savage, 970 F.3d at 244-48; (2) a capital 

defendant does not have a statutory right to a jury drawn from 

the county of the offense, id. at 250-52; (3) the District Court 

did not clearly err in finding that African Americans were not 

underrepresented in the qualified jury wheel, id. at 255-62; (4) 

the District Court did not clearly err in finding that a 

preemptory strike by the government was not racially 

motivated, id. at 262-72; (5) any error in the District Court’s 

transferred intent instruction was not plain, id. at 272-83; (6) 

the admission of victim-impact evidence at the penalty phase 

was not clearly erroneous, id. at 298-303; and (7) as a matter 

of first impression, it was not unfairly prejudicial at the penalty 

phase to admit color autopsy photographs of the firebombing,

id. at 303-06.

8 The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742(a).
10

Christopher Phillips, was burdened by a conflict of interest.9

 

Specifically, she argues that Phillips’s representation violated 

her Sixth Amendment right to conflict-free counsel, that 

Phillips created a second conflict of interest by opposing her 

motion for a mistrial, and that it was per se reversible error for 

the District Court not to have immediately held an evidentiary 

hearing on the matter. Before considering those three 

arguments, we briefly provide an overview of the facts relevant 

to her claim. 

On March 19, 2013, six weeks into trial, at an off-therecord conference, the government disclosed its receipt from 

the Philadelphia District Attorney’s Office of an “assignment”

document showing that Phillips, while working in that office

as an assistant district attorney, had been assigned in October 

2003 to prosecute Kaboni and a co-defendant, Anthony 

Mitchell, for the murder of Kenneth Lassiter.10 (Answering 

Br. at 292.) This revelation raised the possibility of a conflict 

of interest, not only because Phillips had once been assigned to 

prosecute Kidada’s brother, but also because the government 

9 Kidada was represented by both Phillips and cocounsel Teresa Whalen at trial. The indictment against Kidada 

gave notice of the government’s intent to seek the death penalty 

against her, and the District Court appointed Whalen to serve 

as learned counsel in the capital case. Whalen was permitted 

to stay on the defense team when the case was de-certified as a 

capital case with respect to Kidada. 

10 After ordering the murder of government witness 

Tybius Flowers, Kaboni was acquitted in state court of the

Lassiter murder. He was later convicted of both murders in 

this case. 
11

in this case had charged the Lassiter murder as a predicate 

offense for the RICO conspiracy charge, and Phillips was 

tasked with defending Kidada as to that count. 

To address the potential conflict, the government 

moved on April 5, 2013, for an evidentiary hearing. The 

District Court granted the motion and subsequently appointed 

separate counsel to represent the interests of Kidada and of 

Phillips with respect to the alleged conflict. Kidada’s conflicts 

counsel then filed a motion for a mistrial on April 26, 2013. 

Instead of immediately holding an evidentiary hearing, the 

Court allowed the trial to continue uninterrupted, and the jury 

returned a guilty verdict against Kidada on May 13, 2013. 

A few days after the jury returned its verdict, the District 

Court set a briefing schedule for the mistrial motion and 

scheduled a hearing for June 17, 2013. Phillips, through his 

conflicts counsel, filed a brief opposing the mistrial motion. At 

the hearing, he testified that he had no recollection of having 

been assigned to the Lassiter matter when he was appointed to 

represent Kidada. He further testified that he never reviewed 

the evidence in that case, met with witnesses, contacted the 

victim’s family, or discussed the case with anyone. Indeed,

nine days after Phillips was assigned to the Lassiter murder

prosecution, the case was reassigned to another assistant 

district attorney. 

The District Court denied Kidada’s motion for a 

mistrial. In denying the motion, the Court credited Phillips’s 

testimony about his lack of involvement in the prior case, 

found that Phillips’s brief assignment to the Lassiter matter did 

not limit his ability to vigorously defend Kidada, and observed 

that Kidada had failed to demonstrate that she suffered any 
12

prejudice because of Phillips’s prior assignment to the Lassiter 

matter.

11 

Turning to the legal issues, we begin with Kidada’s 

argument that it was per se reversible error for the District 

Court to wait until after the jury returned its verdict to hold a 

hearing on the alleged conflict of interest.12 The Sixth 

Amendment guarantees a defendant the right to effective 

assistance of counsel, which includes “a correlative right to 

representation that is free from conflicts of interest.” Wood v. 

Georgia, 450 U.S. 261, 271 (1981). “[A] court confronted with 

and alerted to possible conflicts of interest must take adequate 

steps to ascertain whether the conflicts warrant separate 

counsel.” Wheat v. United States, 486 U.S. 153, 160 (1988).

11 We generally do not address conflict of interest 

claims on direct appeal. United States v. Morena, 547 F.3d 

191, 198 (3d Cir. 2008) (“The rationale behind this practice is 

that collateral review allows for adequate factual development 

of the claim, especially because ineffective assistance claims 

‘frequently involve questions regarding conduct that occurred 

outside the purview of the district court and therefore can be 

resolved only after a factual development at an appropriate 

hearing.’”) (quoting Government of Virgin Islands v. Zepp, 748 

F.2d 125, 133 (3d Cir. 1984)) (internal quotation marks 

omitted). Here, however, the District Court held a hearing on 

the issue, providing us with an adequate record for review. 

12 We review a district court’s determination with 

respect to an alleged conflict of interest for an abuse of 

discretion. United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 

1996).
13

As the District Court explained, the potential conflict in 

this case came to light “six weeks after trial began, and after 

the case had already demanded a significant amount of time 

from jurors, the parties, counsel, witnesses, and the Court.” 

(Kidada Supp. App. at 66 n.9.) The Court concluded that “[i]t 

would have made little sense to adjourn the trial to deal with 

this issue. The only reasonable course was to continue with the 

trial and address the conflict issue after the jury had reached its 

verdict.” (Kidada Supp. App. at 66 n.9.) 

We agree that the District Court’s course of conduct was 

reasonable, and we reject Kidada’s suggestion that the Sixth 

Amendment imposes a rigid, blanket requirement that a court 

halt trial proceedings to inquire into an alleged conflict.13 

Rather, what constitutes “adequate steps” will necessarily vary 

depending on the circumstances of each case. In an instance 

such as this, where the timing of a court’s investigation is at 

issue, we will generally defer to the district court’s judgment 

unless the objecting party can articulate prejudice and show 

that the court abused its discretion. Cf. Dietz v. Bouldin, 579 

U.S. 40, 47 (2016) (“[D]istrict courts have the inherent 

authority to manage their dockets and courtrooms with a view 

toward the efficient and expedient resolution of cases.”). 

Here, Kidada recognizes that the post-trial timing of the 

conflict hearing “reflected the court’s concern about the time 

and expense that already had been incurred in connection 

13 Kidada cites several out-of-circuit cases to support 

that proposition, but those cases address circumstances in 

which the trial court failed to undertake any inquiry into an 

alleged conflict. 
14

[with] this trial, which was a death penalty prosecution.” 

(Kidada Opening Br. at 44 n.7.) Additionally, Kidada has 

never contested the fact that she was represented throughout 

her case by Phillips’s co-counsel, Teresa Whalen, who was not 

burdened by an alleged conflict of interest. And finally, as 

discussed in more detail below, Kidada has failed to show 

prejudice. Considering the late stage at which the potential 

conflict was brought to the Court’s attention, and that Kidada 

was represented by competent co-counsel throughout trial, we 

conclude that the Court took adequate steps in immediately 

appointing conflicts counsel and holding a post-trial hearing on 

the alleged conflict.

We next consider the merits of Kidada’s allegation that 

Phillips’s representation of her was infected by a conflict of 

interest. To prove a Sixth Amendment violation based on a 

lawyer’s representation of another client, a defendant “must 

establish that an actual conflict of interest” existed. Cuyler v. 

Sullivan, 446 U.S. 335, 350 (1980). An “actual conflict of 

interest is evidenced if, during the course of the representation, 

the defendants’ interests diverge with respect to a material

factual or legal issue or to a course of action.” United States v. 

Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (internal 

quotation marks omitted). Examples include refusing to crossexamine a witness, failing to respond to inadmissible evidence, 

or failing to “diminish the jury’s perception of a [coconspirator’s] guilt.” Cuyler, 446 U.S. at 349.

The record indicates that during the nine days in 2003 

when Phillips was an assistant district attorney assigned to the 

Lassiter matter, he took no action on that case. He did not even 

recall the assignment until the government brought the 

assignment memo to his attention six weeks into the Savage 
15

trial. It is difficult, then, to imagine how Phillips’s brief 

assignment to the Lassiter matter could have limited his ability 

to represent Kidada. More importantly, except for Phillips’s 

opposition to Kidada’s motion for a mistrial, which we discuss 

below, Kidada has not pointed to – either in briefing or oral 

argument – any concrete instance of prejudice resulting from 

Phillips’s representation, and nothing in the trial record 

suggests that Phillips’s interests ever diverged from hers. She

has failed to establish an actual conflict of interest. 

But that does not slow her protestations. She contends 

that the actual conflict standard is inapplicable here because, 

“in contrast to this case,” the Supreme Court in Cuyler v. 

Sullivan applied the standard where “the trial court [was] never 

made aware of the conflict of interest.” (Kidada Opening Br. 

at 31 n.5 (citing Cuyler, 446 U.S. at 349-50).) In other words, 

Kidada asserts that the actual conflict standard applies only 

when the defendant fails to raise an objection at trial. But our 

own precedent forecloses that narrow reading of Cuyler. In

Simon v. Government of the Virgin Islands, we held that “[a] 

petitioner claiming a conflict of interest must prove (1) 

multiple representation that (2) created an actual conflict of 

interest that (3) adversely affected the lawyer's performance.” 

929 F.3d 118 (3d Cir. 2019) (internal quotation marks 

omitted). In all cases, then, the “critical inquiry is whether 

counsel actively represented conflicting interests.” Zepp, 748 

F.2d at 135 (internal quotation marks omitted). 

Unable to identify any point where Phillips’s interests 

diverged from her own with respect to a material factual or 

legal issue in the case, Kidada alleges that her “lead counsel 

secretly harbored an intention to take a position adverse to the 

interests of his own client, which he then did in filing his own 
16

separate opposition to Kidada’s motion for a mistrial.” 

(Kidada Opening Br. at 25.) Specifically, she claims that 

Phillips subordinated her interests “by filing briefs through his 

own separate counsel attempting to vindicate his own conduct 

and opposing, and taking a position actually adverse to, his 

client’s interests.” (Kidada Opening Br. at 39.) 

Phillips’s opposition to Kidada’s mistrial motion falls 

short of evincing an actual conflict. First, Phillips explained at 

the hearing that he opposed Kidada’s motion because he felt 

compelled to correct a factual misrepresentation, namely, that 

he had obtained confidential information about the Lassiter 

matter while serving as an assistant district attorney, when in 

fact he had not. It was fully proper for Phillips to endeavor to 

correct a factual misrepresentation that could harm his 

professional reputation. Moreover, Philips, like all attorneys, 

has a “duty of candor toward the court[.]” Rosales-Mireles v. 

United States, 138 S. Ct. 1897, 1911 (2018). To have remained 

mute in the face of a false factual assertion that he was

specially, if not uniquely, situated to address would have 

violated that duty. 

Second, Kidada moved for a mistrial after the 

evidentiary portion of the trial had concluded and Phillips’s

substantive involvement at trial had all but ended. Phillips’s 

co-counsel, Teresa Whalen, delivered the closing argument on 

behalf of Kidada. Accordingly, even if Phillips had created a 

prospective conflict of interest at the moment he opposed 

Kidada’s motion for a mistrial, Kidada has not shown that their 

interests ever diverged before that point, and she cannot 

support her Sixth Amendment claim based on the bare 

allegation that Phillips “secretly harbored” an unexplained 

malintent. The actual prejudice standard requires more; it 
17

requires, at a minimum, that the dissatisfied defendant produce

some evidence of divergent interests as to a material factual or 

legal issue. And that is something Kidada has never done.

The District Court did not abuse its discretion 

in denying motions to sever.

Both Kidada and Northington filed motions to sever,

seeking individual trials. They argued that severance was 

warranted because they were charged with only a subset of the 

crimes charged against Kaboni, and that the number of 

defendants and charges in the case would confuse the jury. 

The District Court denied their severance motions in a 

comprehensive opinion, determining that “[t]he seventeen 

counts are manageable” for a jury in a single case. (Kidada 

Supp. App. at 25.) The Court reasoned that “the allegations in 

the Indictment with respect to each Defendant are clear,” and 

that “[t]he jury will be able to compartmentalize the evidence 

against the various Defendants, particularly when provided 

with instructions by the Court.” (Kidada Supp. App. at 41.) 

Kidada and Northington now appeal the denial of their 

severance motions. 

As we have often observed, a defendant, properly joined 

with other defendants in a criminal indictment, has “a heavy 

burden in gaining severance.” United States v. Quintero, 38 

F.3d 1317, 1343 (3d Cir. 1994). We review for abuse of 

discretion a district court’s denial of severance. United States 

14 We review a district court’s denial of a severance 

motion for abuse of discretion, United States v. Hart, 273 F.3d 

363, 369 (3d Cir. 2001), as more fully discussed herein.
18

v. Hart, 273 F.3d 363, 369 (3d Cir. 2001). But even when there 

has been such an abuse of discretion, we will reverse a 

conviction only if the appellant can show that the denial of 

severance caused him “clear and substantial prejudice 

resulting in a manifestly unfair trial,” and it is insufficient 

“merely to allege that severance would have improved his 

chances for acquittal.” United States v. Eufrasio, 935 F.2d 553, 

568 (3d Cir. 1991) (quoting United States v. Reicherter, 647 

F.2d 397, 400 (3d Cir. 1981)).

In assessing whether a defendant has suffered clear and 

substantial prejudice, the key inquiry is “whether the jury could 

have been reasonably expected to compartmentalize the 

allegedly prejudicial evidence in light of the quantity and 

limited admissibility of the evidence.” United States v. De

Peri, 778 F.2d 963, 984 (3d Cir. 1985). We will not find 

prejudice “just because all evidence adduced is not germane to 

all counts against each defendant,” or because certain 

defendants are “seemingly less culpable,” or because evidence 

is “more damaging to one defendant than others.” Eufrasio, 

935 F.2d at 568. 

In short, the bar is high and reflects the “preference in 

the federal system for joint trials of defendants who are 

indicted together.” Zafiro v. United States, 506 U.S. 534, 537 

(1993). A joint trial promotes efficiency, avoids inconsistent 

verdicts, id., permits fact finders to assess the “full extent of [a]

conspiracy,” United States v. Provenzano, 688 F.2d 194, 199 

(3d Cir. 1982), abrogated on other grounds by In re Ins. 

Brokerage Antitrust Litig., 618 F.3d 300, 372 (3d Cir. 2010), 

and prevents “the tactical disadvantage to the government from 

disclosure of its case.” United States v. Jackson, 649 F.2d 967, 

973 (3d Cir. 1981). 
19

Kidada and Northington contend that, because they 

were charged with only a subset of the 12 murders instigated 

by Kaboni in furtherance of the RICO enterprise, and due to 

the complexity of the case, they were prejudiced by the 

spillover of emotion evoked by evidence of crimes they didn’t 

commit.

15 But, as an initial matter, Kidada and Northington 

cannot show clear and substantial prejudice by simply pointing 

to the fact that the government introduced evidence pertinent 

to other defendants. Were that the case, “a joint trial could 

rarely be held.” United States v. Dansker, 537 F.2d 40, 62 (3d 

Cir. 1976), abrogated on other grounds by Griffin v. United 

States, 502 U.S. 46, 57 n.2 (1991). Rather, as explained above, 

the lodestar of the prejudice inquiry is “whether the evidence 

is such that the jury cannot be expected to compartmentalize it 

and then consider it for its proper purposes.” Id. (internal 

citations omitted). That showing is absent here. We have 

repeatedly affirmed convictions of defendants who were 

jointly tried alongside co-defendants charged with more 

serious or additional crimes, so long as the jury could 

compartmentalize the evidence. See, e.g., United States v. 

Walker, 657 F.3d 160, 168-71 (3d Cir. 2011) (affirming denial 

of severance where two brothers were charged with the same 

six crimes and only one of the brothers was charged with two 

additional but related crimes); United States v. Sandini, 888 

F.2d 300, 304-07 (3d Cir. 1989) (affirming denial of severance

where one conspirator was charged with a more serious 

15 As a reminder, Kidada abetted the murders of the six 

Coleman family members. Northington, for his part, 

participated in the murders of Barry Parker and Tybius 

Flowers.
20

continuing criminal enterprise offense); United States v. 

Sebetich, 776 F.2d 412, 427 (3d Cir. 1985) (affirming denial of 

severance where three defendants were charged with multiple 

robberies, even though one defendant complained that shots 

were fired only in robberies with which he was not charged, 

and even though two of the three defendants made 

incriminating statements to the police).

More particularly as to compartmentalization, Kidada 

and Northington have not demonstrated why the jury was 

incapable of managing the evidence here. Although they 

describe the volume of evidence introduced by the government 

against their codefendants, they do not dispute that the Court 

instructed the jury to consider the charges against each 

defendant separately. And, of course, we presume that the jury 

will follow limiting instructions and will be able to 

appropriately analyze the evidence and issues. See Richardson 

v. Marsh, 481 U.S. 200, 211 (1987) (“[J]uries are presumed to 

follow their instructions.”); United States v. Urban, 404 F.3d 

754, 776 (3d Cir. 2005) (“We presume that the jury follows 

such [limiting] instructions, and regard such instructions as 

persuasive evidence that refusals to sever did not prejudice the 

defendant.”) (internal citation omitted).

The verdicts in this case reinforce the soundness of that 

presumption because they show that the jury thoughtfully 

differentiated the crimes committed by the defendants, 

yielding some not-guilty verdicts and, in Northington’s case, 

sparing his life. For example, the jury found that the 

government failed to prove that Kidada, Northington, or 

Merritt were involved in a drug conspiracy involving quantities 

that would have subjected them to higher statutory penalties. 

To take another example, the jury found that the government 
21

proved that Kaboni and Kidada engaged in witness retaliation 

by killing the Coleman family members, but they found that 

the government failed to meet its burden of proof as to Merritt. 

By the same token, the jury found Merritt not guilty of 

substantive counts related to the murders but convicted the 

Savage siblings as to those counts. And finally, in a separate 

seven-day penalty proceeding, the jury unanimously sentenced 

Northington to life in prison after having sentenced Kaboni to 

death. 

The jury’s ability to thoughtfully differentiate among 

the defendants undermines Northington’s assertion that, 

considering the “graphic” and “profane” evidence against 

Kaboni, the jury would necessarily find him “equally 

culpable.” (Northington Opening Br. at 70-71.) On the 

contrary, it is possible that Northington and Kidada benefited 

from being tried alongside Kaboni, as it may have been 

apparent to the jury that they were relatively less culpable than 

he was and should be treated accordingly.

16

Finally, Kidada asserts that “[t]he prejudice against 

[her] was further heightened by the fact that she was tried by a 

death-qualified jury as the only defendant who was not facing 

the death penalty.” (Kidada Opening Br. at 77.) But the 

Supreme Court has specifically rejected that type of argument. 

See Buchanan v. Kentucky, 483 U.S. 402, 420 (1987) 

16 We are not suggesting that a severance motion should 

be decided one way or another on a “next to him you’re a saint” 

rationale, although extreme differences in culpability could be 

a consideration. We are, however, observing that, in this case, 

the District Court’s anticipatory assessment of the jury’s 

capability proved to be accurate.
22

(petitioner was not deprived of his Sixth Amendment right to 

an impartial jury because the prosecution was permitted to 

“death-qualify” the jury to address co-defendant’s exposure to 

the death penalty). A death-penalty-qualified juror, like any 

other, is expected to follow the court’s instructions, presume 

every defendant is innocent until proven guilty, and not vote to 

convict except upon proof beyond a reasonable doubt. The 

jurors here clearly did so.

The District Court did not abuse its discretion in 

denying the motions to sever in this case.

Kidada argues that the District Court improperly 

admitted certain inflammatory comments by Kaboni.18 She 

asserts that the comments, which were admitted as coconspirator statements, were not made in furtherance of a 

conspiracy, that the District Court erred by failing to issue a 

contemporaneous limiting instruction, and that the comments

were highly prejudicial. Before addressing her arguments, we 

provide a sampling of those deeply disturbing statements and 

describe what transpired at trial.

17 We review the District Court’s decision regarding the 

admissibility of evidence for an abuse of discretion. United 

States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

18 Merritt adopts Kidada’s argument in full, without 

presenting any additional analysis. 
23

In pretrial motions, Kaboni moved to preclude wiretap 

recordings of things he said to fellow inmates. In those 

conversations, Kaboni made numerous damning admissions, 

telling of his delight with the Coleman murders and expressing 

his intent to kill law enforcement officials and other witnesses. 

The District Court allowed the government to introduce most

of those recordings. 

We decline to catalogue all his heinous statements and 

instead provide three examples in the footnote below, to 

illustrate their shocking character.19 Because Kaboni did not 

19 In one instance, Kaboni complained to a prisoner in

an adjoining cell about having missed his daughter’s eighth 

grade graduation, stating, “[t]hat’s why [they] got to pay ... 

Those ... rats.” (App. at 1306.) Kaboni continued, “Their kids 

got to pay, for making my kids cry. I want to smack one of 

their four-year-old sons in the head with a bat .... Straight up. 

I have dreams about killing their kids ... [c]utting their kids’ 

heads off.” (App. at 1306-07.) In another statement to the 

same prisoner, Kaboni stated, “Yo. Can you imagine 

[Coleman’s] face, man .... When that news flash or that captain 

went and got him. They didn’t tell him we got some good news 

and we got some bad news. They said we got some bad news 

.... (Laughs) It don’t stop. Just put[,] just put etcetera after the 

word dead.” (App. at 1384.) And Kaboni bragged to another 

prisoner that Coleman “couldn’t view” the bodies of his family 

members because they had been burned in the fire. Kaboni 

said, “They shoulda, you know where they shoulda took him? 

They should took him got, got some barbeque sauce and 

poured it on them[.]” (App. at 1144.) 
24

appeal the admissibility of the recordings, we did not directly 

address in our prior opinion whether they were admissible. We 

did observe, however, that the recordings “demonstrated 

[Kaboni’s] complicity in the Coleman firebombing. They also 

revealed [his] great satisfaction that the killings had taken 

place, and the intercepted conversations revealed plans to kill 

yet other witnesses and their families.” Savage, 970 F.3d at 

235.

At trial, Kidada’s counsel requested a limiting 

instruction as to the statements that Kaboni made to other 

prisoners, arguing that the prisoners were not co-conspirators 

and Kaboni’s statements to them were not made in furtherance 

of the conspiracy and therefore were not admissible against 

her. The District Court admitted the recordings and declined 

to give a contemporaneous limiting instruction. 

The District Court did, however, instruct the jury as to 

both co-conspirator liability and the Kobani recordings in its 

jury charge. It explained that the jury could 

consider the acts and the statements of any other 

member of the conspiracy during and in 

furtherance of the conspiracy as evidence against 

a defendant whom you have found to be a 

member of the conspiracy. When persons enter 

into a conspiracy, they become agents for each 

other, so that the acts and the statements of one 

conspirator during the existence of the 

conspiracy and in furtherance of the conspiracy 
25

are considered the acts and statements of all other 

conspirators and are evidence against them all.20

20 The District Court also instructed:

[T]he acts or statements of any member of a 

conspiracy are treated as the acts and statements 

of all members of the conspiracy if these acts and 

statements were performed or spoken during the 

existence of the conspiracy and to further the 

objectives of the conspiracy. Therefore, ladies 

and gentlemen, you may consider as evidence 

against a defendant any act or statement made by 

any member of the conspiracy during the 

existence of the conspiracy and to further the 

objectives of the conspiracy. You may consider 

these acts and statements, even if they were done 

or made in the absence of that defendant and 

without that defendant’s knowledge at all. As 

with all of the other evidence presented, ladies 

and gentlemen, in this case, it is for you to decide 

whether you believe this evidence and how much 

weight you will give it. So, ladies and 

gentlemen, the acts and the statements of a 

conspirator in furtherance of the conspiracy are 

the acts and statements of all members of the 

conspiracy.

(App. at 15147-48.) 
26

(App. at 15154-55.)

As to the cell block recordings, the District Court 

specifically reminded the jury that it had “heard tape 

recordings of things that certain defendants said,” which 

included “foul or offensive language” or “disturbing 

statements.” (App. at 15122.) The Court then cautioned that 

this evidence was admitted for “limited purpose[s],” and could 

be considered “only for the purpose of deciding whether the 

defendant had the state of mind, knowledge or intent necessary 

to commit the crimes charged in the indictment,” and not as 

“proof that the defendant has a bad character or a propensity to 

commit crimes.” (App. at 15122-23.) Further on, the Court 

also instructed the jury that it “must separately consider the 

evidence against each offense charged[.]” (App. 15127.) 

Notably, Kidada neither requested supplemental instructions, 

nor raised any objections to the District Court’s final 

instructions. 

Kidada makes several arguments regarding the cell 

block recordings introduced at trial. She first argues that “[t]he 

district court admitted the recordings as co-conspirator 

statements, under Federal Rule of Evidence 801(d)(2)(E), and 

over the repeated objections of defense counsel.” (Kidada 

Opening Br. at 45.) Because the conversations were not in 

furtherance of the conspiracy, she says “the district court 

abused its discretion in admitting” the conversations between 

Kaboni and non-members of the conspiracy, some of which 
27

“were played multiple times to the jury.” (Kidada Opening Br. 

at 47-51.) 

That argument misses the mark because the District 

Court did not ultimately admit the cell block recordings against 

Kidada under the co-conspirator hearsay exception. Rather, 

the Court admitted them against Kaboni alone because they 

were highly probative of his guilt and not sufficiently 

prejudicial to outweigh their probative value. Indeed, the 

Court in its final instructions cautioned the jury that it should 

consider the recorded conversations introduced at trial only in 

assessing whether the defendant who made the statements had

the state of mind, knowledge, or intent necessary to commit the 

charged crimes and not for any other purpose. 

Kidada next argues that, notwithstanding the final jury 

instructions, the District Court erred because it “did not clarify 

for the jury which of the hundreds of recordings the 

government had introduced at trial they could consider in 

assessing Kidada’s guilt.” (Kidada Opening Br. at 58.) More 

specifically, Kidada argues that the Court erred because it “did 

not at any time” tell the jury that “the cell block recordings 

were admissible against Kaboni alone.” (Kidada Opening Br. 

at 58.) In support, she cites Zafiro, 506 U.S. at 539, in which 

the Supreme Court recognized that a joint trial of codefendants may carry the risk of a jury being unable to make a 

reliable judgment about guilt or innocence “when evidence that 

the jury should not consider against a defendant and that would 

not be admissible if a defendant were tried alone is admitted 

against a codefendant.” 

While it may have been the better course to give a 

contemporaneous limiting instruction regarding the jailhouse 
28

recordings, we cannot say that the District Court abused its 

discretion in declining to do so. It sufficiently cautioned the 

jury in its final instructions, directing the jury to consider the 

recorded conversations only in assessing whether the 

defendant who made the statements – Kaboni – had the state of 

mind, knowledge, or intent necessary to commit the charged 

crimes and not for any other purpose. Further, both Kidada and 

Merritt must have regarded those instructions as adequate, 

since neither requested supplemental final instructions or 

raised any objections to the District Court’s final instructions. 

As for Kidada’s argument on appeal that the District 

Court “did not clarify, at any time during the trial or in its final 

charge to the jury which of the hundreds of recordings the

government had introduced at trial were admissible against 

which of the four co-defendants,” (Kidada Opening Br. at 76), 

the District Court need not have supposed that the jury would 

fail to follow the instructions it received. Moreover, if Kidada 

was concerned that the jury would hold her accountable for 

Kaboni’s comments to others, her counsel was free to address 

that issue in closing argument. Her counsel did not mention 

the cell block statements in closing, however, which makes 

sense, as they were irrelevant to the government’s case against 

her. The government, for its part, never suggested in its closing 

argument that the recordings had relevance to Kidada’s guilt. 

Finally, Kidada contends that the cell block recordings 

were overwhelmingly prejudicial to her because, in her view, 

the government’s “case against [her] ... was focused on linking 

her with her brother[’s] activities” and “clearly would have 

been materially less compelling without the recordings of 

Kaboni[.]” (Kidada Opening Br. at 61.) Kidada asserts that 

“there can be no sure conviction that the guilty verdicts against 
29

Kidada would have been returned in the absence of the 

overwhelming amount of uniquely and unfairly prejudicial 

hearsay that the government introduced at trial in the form of 

Kaboni’s cell block recordings.”21 (Kidada Opening Br. at 60.) 

This argument falls flat. Her own inculpatory correspondence 

with Kaboni, the testimony of witnesses such as Lamont 

Lewis, and a threatening letter22 from Kidada to Coleman 

provided the jury with a more than sufficient evidentiary basis 

to establish her participation in the Coleman family murders 

and in the affairs of the KSO.

For those reasons, the District Court did not abuse its 

discretion in admitting the cell block recordings and declining 

to give a contemporaneous limiting instruction.

D. The District Court did not abuse its discretion 

in denying Northington’s motion for a 

mistrial.

Northington next argues that he is entitled to a mistrial 

because the prosecutor identified him as one of the perpetrators 

21 (See also Kidada Opening Br. at 61 (“The 

government’s case against Kidada, which was focused on 

linking her with her brother[’s] activities, clearly would have 

been materially less compelling without the recordings of 

Kaboni, to whom – as the government portrayed it – she was 

particularly devoted.”)). 

22 Kidada wrote to Coleman: “Death before dishonor ... 

to your family. If you said something, let us know. If you 

didn’t, let us know. We have to know what’s going on. Don’t 

say shit to nobody.” (App. at 8946.)
30

of the Coleman family firebombing during closing arguments, 

even though he was not charged with committing that crime. 

Because the District Court immediately cured any error, we 

conclude that it did not abuse its discretion in denying 

Northington’s motion for mistrial.

During closing arguments, the government summarized 

the Coleman family murders. Northington’s three codefendants were charged with those murders, but Northington 

was not. The AUSA concluded the government’s closing 

argument, however, by pointing at the defendants and 

repeating, “you killed them.” (App. 14396.) The transcript of 

the proceeding in the jury’s presence reads as follows:

AUSA: There were six beautiful, healthy, loving 

people in that house and you killed them. You 

killed them, and you killed them, and you killed 

them.

Counsel: Objection. We are not charged with 

that arson.

AUSA: I was not pointing at Mr. Northington.

Court: That is true.

AUSA: You know who killed them. Kaboni 

Savage, Kidada Savage, Robert Merritt and 

Lamont Lewis.

(App. at 14396-97.)
31

After the AUSA completed the government’s closing 

argument, a sidebar was held, at which time Northington 

moved for a mistrial based on the prosecutor’s having pointed 

at him. The District Court denied the motion and stated the 

following: “I will instruct the jurors when they come back that 

Mr. Northington is not charged with that crime and they are not 

to consider him as being charged with that crime.” (App. at 

14399.) The District Court then instructed, “[m]embers of the 

jury, just one clarification for you. Ladies and gentlemen, you 

should understand that Steven Northington is not charged with 

any of the Coleman arson murders. Okay? He is not charged 

with those crimes.” (App. at 14400.)

We review a denial of a motion for a mistrial for an 

abuse of discretion. United States v. Rivas, 493 F.3d 131, 139 

(3d Cir. 2007). When a motion for a mistrial is based on a 

prosecutor’s remarks in a closing statement, we first determine 

whether the prosecutor’s remarks were improper. United 

States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en 

banc). If the remarks are improper, as they seem to have been

in this case,23 “we will go on to weigh the remarks under a 

23 Indeed, it seems odd for the AUSA, with an 

endorsement from the Court, to disclaim having pointed at 

Northington when there were only four defendants and the 

“you killed them” declaration was made four times. But, as the 

punctuation in the transcript indicates, it is possible that the 

statement was made once as to the three culpable defendants 

collectively and then was repeated as the prosecutor pointed to 

each of them individually. In any event, the government does 

not now dispute the misidentification. (See Answering Br. at 

364 (“Mistakenly, and inadvertently, the prosecutor also 
32

harmless error standard.” Id. In determining whether improper 

remarks were harmless, we consider “the scope of the 

objectionable comments and their relationship to the entire 

proceeding, the ameliorative effect of any curative instructions 

given, and the strength of the evidence supporting the 

defendant’s conviction.” Id. at 1265. Here, all three factors 

support a finding that Northington was not prejudiced.

First, as the government points out, “the challenged 

statement consisted of one sentence comprising just two lines 

in a closing argument that spanned two days, and 277 pages of 

transcript.” (Answering Br. at 366.) See Zehrbach, 47 F.3d at

1260, 1267 (finding no prejudice when challenged remarks 

regarding prosecutor’s view of credibility and guilt of two

witnesses were two sentences in a closing argument that filled 

40 pages of transcript); United States v. Homer, 545 F.2d 864, 

868 (3d Cir. 1976) (finding no prejudice when questionable 

comments regarding sending a message to the public and other 

corrupt officials constituted two paragraphs in 60 pages of

closing argument). Thus, in the context of two days of closing 

arguments – let alone a 10-week trial – the AUSA’s mistake 

was relatively fleeting.

Second, the District Court effectively cured any effect 

of the brief misstatement and hand gesture. Moments after the 

AUSA pointed at Northington, the District Court reminded the 

jury that Northington was not charged in the Coleman family 

murders. A jury is presumed to follow a court’s instruction to 

disregard inadmissible evidence inadvertently presented to it, 

pointed at Northington and, without using Northington’s name, 

repeated the phrase[: ‘and you killed them.’”]).)
33

“unless there is an ‘overwhelming probability’ that the jury

will be unable to follow the court’s instructions, and a strong 

likelihood that the effect of the evidence would be 

‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 

766 n.8 (1987) (citation omitted). In addition to the District 

Court’s specific and immediate instructions, the Court also 

instructed the jury at the close of the case that the comments of 

counsel, such as closing arguments, are not evidence. 

And third, the jury heard overwhelming evidence in 

support of the government’s racketeering conspiracy count and 

two murder counts against Northington, including extensive 

firsthand evidence of Northington’s membership in the KSO 

and his participation in the murders of Barry Parker and Tybius 

Flowers. 

In short, the government’s error was harmless, and the 

denial of Northington’s motion for a mistrial was no abuse of 

discretion.

E. The District Court properly admitted 

evidence seized from Northington’s residence.

Northington next argues that the District Court clearly 

erred in admitting evidence seized from his residence pursuant 

to a search warrant that he contends was inaccurate and 

misleading.24 Before addressing that argument, we describe 

24 “We review for clear error a district court’s 

determination regarding whether false statements in a warrant 

application were made with reckless disregard for the truth. ...

[A]fter putting aside any false statements made [knowingly 

and deliberately or] with reckless disregard for the truth, we 
34

the events that led the police to apply for a warrant to search 

Northington’s residence, the contents of that warrant, and the 

District Court’s ruling on the admissibility of the evidence 

seized pursuant to the warrant. 

1. Barry Parker’s murder and the 

warrant to search Northington’s 

residence

Northington, who lived at 3908 North Franklin Street, 

sold crack for the KSO near his home. When rival drug dealer

Barry Parker encroached on his turf, Northington complained 

to Kaboni, who told him to “handle [his] business.” (App. at 

8849-53, 10846.) The import of that statement in the violent 

context of the KSO was clear.

Lamont Lewis, whom Kaboni had recruited to assist 

Northington in killing Parker, testified that on February 26, 

2003, he and Northington were circling the 3900 block of 

North Franklin in Northington’s car, searching for Parker. 

When Northington spotted Parker on the corner of Franklin and 

Luzerne Streets, he parked his car nearby. Lewis then left the 

car, walked up to Parker, and shot Parker three times in the 

chest, killing him. 

Soon after the killing, Detective Kenneth Rossiter 

arrived on the scene and interviewed witnesses. Based on 

those interviews, Detective Rossiter prepared a warrant 

application and supporting affidavit to search 3908 North 

review de novo a district court’s substantial-basis review of a 

magistrate judge’s probable cause determination.” United 

States v. Desu, 23 F.4th 224, 235 (3d Cir. 2022).
35

Franklin Street. The warrant application sought authorization 

to search the premises for evidence of murder, including guns, 

ammunition, a black baseball cap, black jackets, black jeans, 

and any contraband. 

Detective Rossiter’s affidavit contained three key 

pieces of information. First, Parker’s mother was walking west 

on Luzerne Street toward 7th Street when she saw two men 

whom she knew to be Northington and Northington’s younger 

brother, Allen, crouching behind a car, while Northington had 

a gun in his hand. Second, when the victim’s mother heard 

gunshots, she walked toward the scene of the shooting and 

observed the Northington brothers run into 3908 North 

Franklin Street. She told officers what she had seen, and they

checked the premises for armed men.25 And third, the victim’s 

nephew, E.G., reported that, at the time of the shooting, he was 

standing with Parker on the corner of Franklin and Luzerne 

Streets when a black man wearing a black leather jacket, black 

jeans, and a black baseball cap approached Parker and shot him 

three times in the chest. E.G. reported that the shooter then 

fled south on Franklin Street. 

During the search undertaken pursuant to the warrant, 

police seized multiple handguns, ammunition, cocaine, and 

drug paraphernalia from Northington’s house. 

2. Northington’s suppression motion 

Northington filed a motion to suppress the seized 

evidence, asserting that the police filed a misleading warrant 

25 A SWAT unit secured the apartment until a search 

warrant was obtained. 
36

application in violation of Franks v. Delaware, 438 U.S. 154 

(1978). He made two arguments before the District Court in 

support of his motion, both of which he raises again on appeal. 

First, he notesthat, in E.G.’s statement to the police, which was 

given shortly after the shooting, E.G. reported that the shooter 

“took off running down Luzerne Street toward 8th Street,” as 

opposed to fleeing south on Franklin Street, as Detective 

Rossiter’s affidavit stated. (Northington Br. at 66-67 (quoting 

Supp. App. at 147).) Northington says that Detective Rossiter

misstated E.G.’s observation to obscure the fact that the 

shooter was actually running away from, and not toward, 3908 

North Franklin Street. Second, Northington argues that 

Detective Rossiter’s affidavit omitted that E.G. knew 

Northington but “indicated clearly in his statement that 

[Northington] was not the shooter of Barry Parker.” 

(Northington Br. at 67.) According to Northington, those 

omissions deceived the magistrate who issued the warrant 

“into believing that [Northington] or his brother [was] the 

gunmen,” creating the illusion of probable cause. (Northington 

Br. at 67.) 

The District Court rejected those arguments. While 

acknowledging that Detective Rossiter’s affidavit misreported 

E.G.’s statement as to the direction in which the shooter ran, 

the Court concluded that Northington had not introduced any 

evidence to suggest that the error was knowing or reckless, as 

opposed to merely “inadvertent.” (Supp. App. at 166.)26 In 

any event, the Court observed that the mistake was immaterial 

because the victim’s mother’s account was also included in the 

warrant application, and she reported having seen Northington 

26 Supp. App. Refers to the Supplemental Appendix of 

Appellee, United States of America.
37

enter his Franklin Street residence after the shooting. (Supp. 

App. at 166.) 

As to Northington’s claim that Detective Rossiter 

deceived the magistrate by omitting the fact that E.G. knew 

Northington but did not recognize the shooter, the District 

Court explained that this claim “misreads” the warrant 

application because “[a]t no point does the warrant application 

identify [Northington] as the shooter.” (Supp. App. at 166.) 

Instead, “the warrant implicates [Northington] in the murder 

due to ... [the] positive identification [by the victim’s mother 

of Northington] as having been at the scene of the murder, with 

a gun in his hand, and then placing him inside 3908 North 

Franklin after the shooting.” (Supp. App. at 166-67.)

To succeed on a Franks claim, a defendant must prove 

by a preponderance of the evidence that the affiant knowingly

and deliberately, or with reckless disregard for the truth, 

included a falsehood or omission in the warrant application, 

and he must prove that the resulting false statement was 

material to the probable cause determination. Franks, 438 U.S. 

at 171-72. In assessing materiality, the court excises the 

erroneous information, inserts the missing information, and

then determines whether the “reformulated affidavit 

established probable cause.” United States v. Yusuf, 461 F.3d 

374, 383-84, 390 (3d Cir. 2006).

Northington fails on both prongs of the Franks test. 

First, as the District Court correctly observed, Northington has 

not pointed to any evidence to suggest that the affidavit in 

question was knowingly or recklessly false. And second, any 

omissions or misrepresentations were indeed immaterial to the 

probable cause determination. While it seems that E.G. did not 
38

recognize the shooter, the warrant application did not identify 

Northington as the shooter. Additionally, even if E.G.’s 

observations concerning the identity of the shooter and the 

direction in which he ran were omitted from Detective 

Rossiter’s affidavit, the affidavit would nonetheless establish 

probable cause because it also contained the report of the 

victim’s mother, who identified Northington as having been at 

the scene of the murder with a gun in his hand and as having 

entered his residence at 3908 North Franklin soon thereafter. 

Accordingly, we conclude that the District Court did not 

clearly err in finding that any misstatements or omissions in 

Detective Rossiter’s affidavit were inadvertent, and that, even 

excluding E.G.’s account, the affidavit contained a sufficient 

basis for the magistrate’s probable cause determination. 

Before trial, the government gave notice to Northington 

of its intention to introduce evidence found during his 2004 

arrest on a federal warrant, asserting that it was admissible

intrinsic evidence of the existence of the charged RICO 

conspiracy. The government also asserted that, even if the 

District Court deemed the evidence to be extrinsic of bad acts 

beyond the conspiracy evidence, it was nevertheless

admissible under Federal Rule of Evidence 404(b).

27 

27 “We review the District Court’s decision to admit 

evidence under Rule 404(b) for an abuse of discretion, which 

‘may be reversed only when clearly contrary to reason and not 
39

(Northington Supp. App. at 18 (citing Fed. R. Evid. 

404(b)(2)).) The District Court admitted the evidence over 

Northington’s objection. 

Here is the backstory on that earlier arrest. On 

September 8, 2004, while Northington was driving with his 

cousin in a rental vehicle approximately two miles from the 

Coleman residence, he was pulled over by Philadelphia police

officers. When the police asked him to identify himself, 

Northington, who was “dressed in Muslim garb,” provided 

“one of his multiple false names.” (Northington Br. at 18.) 

One of the officers recognized Northington, however, and he 

was arrested on a federal warrant. The officers subsequently 

found a loaded handgun, a full can of gasoline, and a bag of 

latex gloves in the car. 

The government argued in a motion in limine that the 

circumstances of Northington’s arrest were intrinsic evidence 

of his involvement in the charged RICO conspiracy.28 

justified by the evidence.’” United States v. Butch, 256 F.3d 

171, 175 (3d Cir. 2001) (internal quotation marks omitted).

28 The indictment alleged that Northington had been a 

member of the KSO since 1997, and that the KSO used 

violence and intimidation to maintain its drug trafficking 

operations and to intimidate or retaliate against potential 

witnesses. The indictment charged that KSO members 

committed murders to further the aims of the KSO, and that 

Northington participated in two such murders: the murder of 

rival drug dealer Barry Parker in 2003, and the murder of 

Tybius Flowers in 2004, to prevent Flowers from testifying in 

Kaboni’s state trial for the murder of Kenneth Lassiter. 
40

Specifically, the government argued that the circumstances of 

Northington’s arrest would allow the jury to conclude that 

Northington intended to firebomb the Coleman home, but that 

his arrest prevented him from doing so. In support of that 

theory, the government sought to also introduce a recording of 

a June 4, 2004, phone conversation between Kidada and 

Kaboni, in which Kaboni ordered Kidada in coded language to 

instruct Northington that he “better go ahead” and “to get on 

that.”29 (Northington Supp. App. at 40-41.)

Northington filed a motion to preclude the evidence on 

the grounds that he was not charged with the Coleman family 

murders, that the government’s theory was speculative, and 

that the evidence would be unfairly prejudicial to him. 

The District Court admitted the evidence, reasoning that 

the circumstances of Northington’s arrest tended to directly 

prove the charged RICO conspiracy and so the evidence was 

intrinsic to the charge. The Court further determined that, even 

if the evidence was not intrinsic to the charged conspiracy, it 

was admissible under Rule 404(b) because it showed the 

relationship between the co-defendants, the nature and 

background of the conspiracy, the motive and intent for 

retaliating against government witnesses, and a specific 

Northington was not charged with the firebombing and murder 

of the Coleman family that ultimately took place a month after 

his 2004 arrest.

29 Immediately before speaking with Kidada, Kaboni 

was speaking with KSO affiliate Raymond Wilmore, to whom 

Kaboni stated, “Oh, well tell [Kidada] he better go ahead man.” 

(Northington Supp. App. at 40.)
41

method of retaliation. Finally, the Court conducted a Rule 403 

analysis. It determined that the evidence was highly probative 

of the existence of, and Northington’s participation in, a RICO 

conspiracy, and that the probative value of the evidence was 

not substantially outweighed by a risk of unfair prejudice. 

While “[e]vidence of any other crime, wrong, or act is 

not admissible to prove a person’s character in order to show 

that on a particular occasion the person acted in accordance 

with [his] character[,]” Fed. R. Evid. 404(b)(1), that rule “does 

not apply to evidence of uncharged offenses committed by a 

defendant when those acts are intrinsic to the proof of the 

charged offense.” United States v. Gibbs, 190 F.3d 188, 217 

(3d Cir. 1999). Intrinsic evidence is evidence that directly 

proves the charged offense, or that constitutes “uncharged acts 

performed contemporaneously with the charged crime ... if 

they facilitate the commission of the charged crime.” United 

States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010) (internal 

quotation marks omitted).

Northington argues that the evidence relating to his 

September 2004 arrest is not intrinsic to the case against him 

because the government did not charge him with any acts 

relating to the Coleman killings. That argument is unavailing 

because, as the District Court observed, the indictment charged 

that the KSO used acts of intimidation and retaliation to 

maintain and further the objectives of the KSO, that murders 

were committed for this purpose, and that Northington 

committed two such murders. Accordingly, evidence that 

Northington endeavored to firebomb the Coleman home would 

be highly probative of his participation in the charged RICO 

conspiracy, as it would show unity of purpose and his 

commitment to the KSO’s objectives. 
42

Northington’s other argument, that the evidence was not 

capable of supporting a finding that he attempted to firebomb 

the Coleman residence, is more compelling. First, Northington 

points out that the June 20, 2004 phone call took place three 

months before his arrest, and yet the government cannot 

account for the delay between Kaboni’s supposed order and 

when Northington undertook to carry out the order. Second, 

Northington contends he was not implicated in the June 20, 

2004 recorded phone call. During that call, Kaboni told Kidada 

that an individual called “Money Sign” had “better get on that.” 

(Northington App. at 40.) But neither the indictments nor any 

of the discovery materials attribute the moniker “Money Sign”

to Northington. Moreover, the lead investigator testified 

before the federal grand jury and later at trial that he did not 

know who “Money Sign” was. Third and relatedly, 

Northington notes that Kaboni never explicitly explained what 

“Money Sign” was supposed to do. (Northington Br. at 27 

(“Was [Money Sign] supposed to collect a debt? Sell Drugs? 

Pay a visit to the prison .... There exist an incalculable number 

of possibilities.”).) Finally, Northington objects to the 

inference drawn by the government because he was arrested 

approximately two miles from the Coleman residence, was 

traveling in the opposite direction of that house, and was closer 

to his own home than to the Colemans’. 

In further support of his argument that the government’s 

theory “was unadulterated speculation,” Northington argues 

that “[i]f the Government legitimately believed that [he] had 

taken substantial steps to firebomb the Coleman family,”

surely his acts on September 8, 2004 would have been listed as 

predicate acts in the 140-paragraph RICO conspiracy count 

and as a separate count charging him with attempted murder. 
43

(Northington Br. at 26, 32.) Northington also notes that the 

government’s witness list included Raymond Wilmore, 

through whom Kaboni supposedly gave Kidada the go-ahead 

to order the firebombing, but the government “opted not to call 

Willmore as a witness to either confirm or deny that ‘Money 

Sign’ was [Northington].” (Northington Br. at 30.) 

As the above demonstrates, Northington has reasonable 

grounds for arguing that the evidence involving his arrest, and 

the phone call made three months earlier, fail to support a 

finding that he attempted to firebomb the Coleman family 

home. Of course, it is not for us to decide whether the evidence 

establishes that Northington was en route to murder the 

Colemans. Rather, the question is whether the District Court 

abused its discretion in admitting the evidence. 

The government’s theory, although circumstantial and 

vulnerable to critique, is plausible. As the District Court 

observed, the police arrested Northington in the vicinity of the 

Coleman residence, he gave a false name to the police, and he 

possessed materials to carry out a firebombing. And, although 

there is scant evidence directly linking Northington with the 

moniker “Money Sign,” he did go by a similar alias: “Dollar 

Bill.” The record indicates that Kaboni was adamant that 

“Money Sign” fulfill an unknown order, and considering 

Kaboni’s preoccupation with retribution against Coleman, a 

jury could reasonably conclude that the unspoken order was to 

go through with the Coleman killings. Finally, the KSO 

ultimately killed the Coleman family members by throwing a 

lit can of gasoline into their home, so a jury could conclude 

that, under the circumstances, it was no coincidence that 

Northington possessed materials that would enable him, a well-
44

known KSO member, to carry out the killing at Kaboni’s 

behest. 

Based on those proffered facts, a jury could reasonably 

conclude that the evidence relating to Northington’s arrest 

showed that he intended to firebomb the Coleman home. We 

also decline to disturb the District Court’s ruling that the 

probative value of the evidence was not substantially 

outweighed by the risk of unfair prejudice. We generally will 

not reverse a district court’s Rule 403 decision unless the 

“analysis [undertaken] and resulting conclusion” is “arbitrary 

or irrational.” United States v. Kellogg, 510 F.3d 188, 197 (3d 

Cir. 2007); see also id. (noting that if “judicial self-restraint is 

ever desirable, it is when a Rule 403 analysis of a trial court is 

reviewed by an appellate tribunal” (citation and internal 

quotation marks omitted)).

Rule 403 guards against “unfair” prejudice, that is, 

prejudice “based on something other than [the evidence’s] 

persuasive weight.” United States v. Bergrin, 682 F.3d 261,

279-80 (3d Cir. 2012) (citation omitted). Unfair prejudice 

“does not simply mean damage to the opponent’s cause” but is 

“prejudice of the sort which clouds impartial scrutiny and 

reasoned evaluation of the facts, which inhibits neutral 

application of principles of law to the facts as found.” United 

States v. Starnes, 583 F.3d 196, 215 (3d Cir. 2009) (quoting 

Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 670 (3d Cir. 

2002)).

It was not arbitrary or irrational for the District Court to 

conclude that the evidence was not unfairly prejudicial. While 

the government argued at trial that the evidence relating to 

Northington’s arrest supported an inference that he was willing 
45

to carry out the firebombing, and that he was therefore acting 

in furtherance of a conspiratorial objective, Northington was 

not charged with the Coleman murders. Additionally, 

Northington strenuously opposed the government’s view of the 

evidence in his closing argument, attacking each link in the 

government’s chain of logic. The jury therefore had the 

information it needed to sift through the evidence and resolve 

whether or not to draw the inference that Northington 

attempted to carry out the firebombing. 

Finally, in light of the credible and extensive testimony 

implicating Northington in the murders of Barry Parker and 

Tybius Flowers, we conclude there was little risk that the 

evidence relating to Northington’s arrest would cause the jury 

to convict Northington for those murders on an improper 

emotional basis rather than on the evidence presented at trial. 

In sum, because we agree with the District Court that a 

jury could reasonably conclude that the evidence relating to 

Northington’s arrest would allow the jury to conclude it was 

more likely than not that Northington intended to firebomb the 

Coleman home,30 and because the Court’s Rule 403 ruling was 

30 When dealing with issues of relevance based on 

conditional facts, Federal Rule of Evidence 104(b) requires 

courts to examine the proffered evidence and determine 

whether a jury could reasonably find the conditional fact by a 

preponderance of the evidence. Huddleston v. United States, 

485 U.S. 681, 689-90 (1988) (citing Fed. R. Evid. 104(b)). 

“Evidence is reliable for purposes of Rule 404(b) ‘unless it is 

so preposterous that it could not be believed by a rational and 

properly instructed juror.’” Bergrin, 682 F.3d at 279 (quoting 

United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008), in 
46

not arbitrary or irrational, we conclude that the District Court 

did not abuse its discretion in admitting the evidence. Because

we hold that the admitted evidence was intrinsic to proving 

Northington’s involvement in the RICO conspiracy, we do not 

reach the District Court’s ruling that the evidence was also 

admissible under Rule 404(b). 

Northington alone challenges the government’s 

peremptory strike of Juror #364, whom Northington contends 

was struck because of her race. Juror #364 identified herself

as a 46-year-old African-American woman who has a 26-yearold son, and who works as a business analyst. In response to a 

juror questionnaire, she provided answers that raised concern 

for the government. First, she stated that her residence was 

burned in a fire. Second, she reported that, five years earlier, 

her son was shot three times while sitting in his car, which 

the form of a parenthetical). As a reminder, the evidence 

relating to Northington’s arrest included that he was near the 

Coleman family home, that he had a loaded handgun, a full can 

of gasoline, and a bag of latex gloves in the car, and that 

Kaboni had ordered a person called “Money Sign” – similar to 

Northington’s alias, “Dollar Bill” – to “go ahead” and “get on 

that.”

31 A district court’s determination of whether a 

prosecutor harbored discriminatory intent in striking a juror is 

a “pure issue of fact” which should be given “great deference” 

on review, and the clearly erroneous standard applies. 

Hernandez v. New York, 500 U.S. 352, 364-66 (1991).
47

made her emotional and caused her to start crying. Third, she 

stated that she had maintained a relationship with a man who 

had been charged with assault, and that she had visited him in 

jail. And fourth, she indicated that she was opposed to the 

death penalty. 

The government exercised a peremptory strike to 

remove Juror #364 from the jury, and in response Northington 

challenged the government’s strike as being race-based. After 

hearing the government’s explanations for striking the juror, 

the District Court rejected Northington’s argument. The Court 

explained,

Based upon all the circumstances, including the 

fact that, prior to this strike, an AfricanAmerican juror had already been empaneled, and 

taking into account the prosecutor’s demeanor 

and credibility, we are satisfied that the 

Government’s reason for striking the juror was 

not pretextual, and not in any way motivated by 

a discriminatory intent.

(App. at 159, 161.)

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme 

Court held that “the State denies a black defendant equal 

protection of the laws when it puts him on trial before a jury 

from which members of his race have been purposefully 

excluded.” Id. at 85. A district court’s assessment of motions 

made under Batson involves a three-step process. The 

defendant must first establish a prima facie case of race-based 

discrimination in the exercise of a peremptory strike. 

Hernandez v. New York, 500 U.S. 352, 358 (1991). Among the 
48

factors the trial court may consider at this first step of the 

Batson inquiry are the number of racial group members in the 

panel, the nature of the crime, the race of the defendant and the 

victim, a pattern of strikes against racial group members, and 

the prosecution’s questions and statements during the voir dire. 

United States v. Clemons, 843 F.2d 741, 746-48 (3d Cir. 1988).

Then, if the prima facie case has been made, “the burden 

shifts to the prosecutor to articulate a race-neutral explanation 

for striking the jurors in question.” Id. at 358-59. This step 

“does not demand an explanation that is persuasive, or even 

plausible,” as the issue is not “the reasonableness of the 

asserted nonracial motive,” but rather “the genuineness of the 

motive.” Purkett v. Elem, 514 U.S. 765, 768-69 (1995). 

Finally, if the government presents a race-neutral 

explanation, the defendant must prove purposeful 

discrimination by showing that the proffered explanation is 

pretextual. Hernandez, 500 U.S. at 359. “[T]he ultimate 

burden of persuasion regarding racial motivation rests with, 

and never shifts from, the opponent of the strike.” Purkett, 514 

U.S. at 768.

Here, Northington’s only support for his prima facie 

case is his assertion that the “Government exercised [its] 

peremptory challenge for no apparent justifiable reason[, and] 

had exercised at least two other peremptory challenges on 

qualified African-American jurors.” (Northington Br. at 62.) 

The government’s two strikes against African-Americans fell 

far short of any pattern, and indeed, the defense itself struck 

two African-Americans from the jury. 

As the government explains, 
49

Of the approximately 145 [potential jurors] who 

had at that point been summoned to court to be 

interviewed (up to and including Juror #364), all 

but 43 were excused for cause or hardship. Of 

those remaining 43 jurors, nine were seated, 12 

were excused by the government, and 22 were 

excused by the defense. There were six AfricanAmericans in the remaining group of 43, two of 

whom were struck by the defense.

(Answering Br. at 135.) 

Furthermore, two of the 12 jurors seated on the jury

were African-American, as was the first alternate juror. Nor 

has Northington demonstrated that any other factor 

traditionally considered at the first step of the Batson inquiry 

supports that conclusion that peremptory challenges were 

exercised based on the race of potential jurors. Because 

Northington has failed to make a prima facie case, we will 

affirm the District Court’s ruling.32

32 Although we do not need to reach the second and third 

steps of the Batson inquiry, to remove any doubt of 

discriminatory taint, we note that Northington’s contention that 

there was no race-neutral reason to strike Juror #364 is flatly 

wrong. Indeed, any one of the four race-neutral concerns 

identified by the government as to Juror #364, such as her 

opposition to the death penalty, or that her son, like Tybius 

Flowers, was shot while sitting in his car, would be sufficient 

to defeat Northington’s Batson claim. 
50

Merritt argues that the District Court constructively 

amended the indictment in violation of the Fifth Amendment 

because, whereas the indictment alleged that the KSO was the

RICO enterprise at issue and that Merritt was a KSO member, 

the District Court instructed the jury that it could convict 

Merritt of RICO conspiracy even if it found that Merritt was 

not a member of the KSO. We begin by discussing the 

allegations contained in the indictment that pertain to Merritt’s 

alleged participation in the RICO conspiracy, the 

government’s evidence and argument at trial, the District 

Court’s jury instruction on the crime of RICO conspiracy, and 

the jury’s subsequent questions pertaining to the conspiracy. 

The first count of the indictment, which alleged RICO 

conspiracy, accused Merritt of having been a member of a 

racketeering organization. According to Count One, “[t]he 

defendants and others were members of a regional criminal 

organization. ... This criminal organization was the Kaboni 

Savage Organization (‘KSO’).” (App. at 450.) In a subsection 

titled “The Defendants and Their Roles in the Enterprise,” 

Count One explained Merritt’s alleged role in the KSO: 

The defendants’ roles in the enterprise are as 

follows ... Defendant ROBERT MERRITT, 

33 “We exercise plenary review in determining whether 

there was a constructive amendment of the indictment[.]” 

United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006). 
51

a/k/a “B.J.,” a/k/a “Bishop,” was a drug 

distributor and enforcer for the KSO. He 

participated in murders, murder conspiracy, 

arson, the distribution of controlled substances, 

carrying firearms during violent crimes, carrying 

a firearm during a drug trafficking crime, witness 

tampering, and witness retaliation.

(App. at 453.)

At trial, the government argued that Merritt, as a 

member of the KSO, committed the specific crimes 

enumerated in Count One of the Indictment. In its opening 

statement, for example, the government repeatedly asserted 

that Merritt “threw those gas cans in the living room.” (App. 

at 3386, 3394-95.) The government also reminded the jury that 

Merritt committed the alleged crimes as a KSO member: 

Members of the jury, the evidence in this case 

will show that the defendants Kaboni Savage, 

Steven Northington, Kidada Savage and Robert 

Merritt agreed to participate in the affairs of a 

racketeering enterprise involving drugs, money 

laundering, arson, witness tampering and 

murder.

(App. at 3479.)

While conceding that Merritt “may have been more on 

the periphery” of the KSO, the government argued in its 

summation that Merritt, like Kaboni, Kidada and Northington, 

knew the purpose of the conspiracy, and by selling drugs under 

the protection of Lamont Lewis, he, too, became a member of 
52

the conspiracy knowing full well of its purpose. Finally, the 

government also contended that Merritt and his co-defendants 

murdered the Coleman family “for the purpose of maintaining 

or increasing their position in the enterprise.” (App. at 15076 

(emphasis added).)

Before the charging conference, Merritt filed proposed 

jury instructions that rejected the language addressing RICO 

conspiracy contained in our Court’s model jury instructions. 

According to Merritt, the model language was inapplicable 

“[i]n a case [such as this] where the indictment alleges the 

actual, ten year existence of a specific, ongoing RICO 

enterprise[.]” (Merritt Supp. App. at 122.) Specifically, 

Merritt objected to the following portions of the model jury 

instruction for RICO conspiracy: 

One important difference is that, unlike the 

requirements to find (name) guilty of the RICO 

offense charged in Count (No.), in order to find 

(name) guilty of the RICO conspiracy charged in 

Count (No.) the government is not required to 

prove that the alleged enterprise actually existed, 

or that the enterprise actually engaged in or its 

activities actually affected interstate or foreign 

commerce.

Similarly, unlike the requirements to find (name) 

guilty of the RICO offense, in order to find 

(name) guilty of the RICO conspiracy charged in 

Count (No.) the government is not required to 

prove that (name) was actually employed by or 

associated with the enterprise, or that (name) 
53

agreed to be employed by or to be associated 

with the enterprise.

Nor does the RICO conspiracy charge require the 

government to prove that (name) personally 

participated in the operation or management of 

the enterprise, or agreed to personally participate 

in the operation or management of the enterprise.

Rather, you may find (name) guilty of the RICO 

conspiracy offense if the evidence establishes 

that (name) knowingly agreed to facilitate or 

further a scheme which, if completed, would 

constitute a RICO violation involving at least 

one other conspirator who would be employed 

by or associated with the enterprise and who 

would participate in the operation or 

management of the enterprise.

(Merritt Supp. App. at 122-24 (quoting in part the Third Circuit 

Model Criminal Jury Instructions 6.18.1962D RICO 

Conspiracy-Elements of the Offense (18 U.S.C. §1962(d))).)

In opposing the model instruction, Merritt said it was 

“seemingly designed to accommodate a situation where 

individuals knowingly conspire to do something which, if 

successful, would intentionally promote the establishment of 

an as yet non-existent enterprise, the interests of which the 

conspirators then intend to conduct through a pattern of 

racketeering activity.” (Merritt Supp. App. at 124.) In a 

second filing, Merritt proposed a RICO conspiracy charge that 

required the jury to first find as proven against Merritt all of 

the indictment’s factual allegations pertaining to RICO 
54

conspiracy before finding him guilty of RICO conspiracy. 

Merritt now explains that he objected to the model language 

and proposed his own jury instruction “omit[ting] the 

objectionable language” because the model language relieved 

the government of having to prove “the very facts that it had 

alleged in the Indictment and that it had spent three months 

trying to prove.” (Merritt Opening Br. at 44-45.) 

The District Court gave a RICO conspiracy instruction 

that reflected our Court’s model instruction. In particular, the 

Court told the jury that the government did not have to prove 

that the racketeering enterprise existed or that any defendant 

was a member of that enterprise:

[T]he government is not required to prove that 

the alleged enterprise was actually established, 

that the defendant was actually employed by or 

associated with the enterprise, that the defendant

was actually engaged in, or its activities actually 

affected, interstate or foreign commerce, or that 

the defendant actually committed any 

racketeering act.

(App. at 15139.)

Merritt renewed his objection to that instruction at the 

conclusion of thedistrict court’s charge. He argues that it 

effectively amended the indictment.

“A constructive amendment to the indictment 

constitutes ‘a per se violation of the fifth amendment’s grand 

jury clause’” because it deprives the defendant of his right to 

be indicted by a grand jury. United States v. Syme, 276 F.3d 
55

131, 148, 154 (3d Cir. 2002) (citation omitted). “An 

indictment is constructively amended when, in the absence of 

a formal amendment, the evidence and jury instructions at trial 

modify essential terms of the charged offense in such a way 

that there is substantial likelihood that the jury may have 

convicted the defendant for an offense differing from the 

offense the indictment returned by the grand jury actually 

charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d 

Cir. 2006). Such a modification impermissibly “amend[s] the 

indictment by broadening the possible bases for conviction 

from that which appeared in the indictment.” United States v. 

Lee, 359 F.3d 194, 208 (3d Cir. 2004).

“The key inquiry is whether the defendant was 

convicted of the same conduct for which he was indicted.” 

Daraio, 445 F.3d at 260 (citation omitted). In other words, 

even when the district court instructs the jury on the very same 

statute that the indictment charged the defendant to have 

violated, the district court constructively amends the 

indictment if it instructs the jury that it can convict the 

defendant based on facts not alleged in the indictment. 

The Supreme Court’s decision in Stirone v. United 

States, 361 U.S. 212 (1960), illustrates the requirement that the 

factual basis for a conviction cannot exceed the four corners of 

the indictment. There, the indictment charged Stirone with a 

Hobbs Act violation because he used his influential union 

position and extortion to unlawfully interfere with the

interstate importation of sand. Id. at 213-14. Over Stirone’s 

objection, the district court allowed the government to offer 

evidence “of an effect on interstate commerce not only in sand 

... but also in interference with steel shipments ....” Id. at 214. 

The Court held that, even though the government indicted 
56

Stirone with the “two essential elements of a Hobbs Act crime: 

interference with commerce, and extortion[,]” “when only one 

particular kind of commerce [i.e., sand,] is charged to have 

been burdened[,] a conviction must rest on that charge and not 

another, even though it be assumed that under an indictment 

drawn in general terms a conviction might rest upon a showing 

that commerce of one kind or another had been burdened.” Id. 

at 218.

Applying Stirone, we similarly focused on the 

indictment’s factual allegations in United States v. McKee, 506 

F.3d 225 (3d Cir. 2007). In that case, the indictment charged 

the defendants with attempting to evade taxes by “preparing, 

signing, and causing the filing of false and fraudulent federal 

employment tax returns.” Id. at 230. The district court, 

however, instructed the jury that the government could prove 

the charge by showing the defendant falsified books and 

records. Id. at 229. In vacating the defendants’ convictions, 

we explained that “the problem here is that the jury instructions 

informed the jury that the Defendants could be convicted on 

the basis of conduct that was not charged in the indictment, of 

which they had no notice.” Id. at 231. And even if the jury did 

in fact convict the defendants on the facts alleged in the 

indictment, “it is nearly impossible for a defendant to 

demonstrate that his/her conviction was based on particular 

evidence or a particular theory.” Id. at 232.

We agree with Merritt that the theory that permeates the 

indictment and the government’s trial arguments is that he was 

a KSO member and thus a member of the RICO enterprise. We 

also agree that the jury likely believed that Merritt was not a 
57

KSO member.34 We part ways with Merritt, however, as to his 

assertion that his conviction cannot stand because “[t]he 

indictment never alleged that Merritt was a ‘non-member’ of 

the KSO who nevertheless conspired to further its criminal 

aims.” (Merritt Opening Br. at 46.) In addition to charging 

Merritt with membership in a RICO organization under 18 

U.S.C. § 1962(c), the indictment also charged him with RICO 

conspiracy under § 1962(d).35 That the indictment charged 

Merritt with both crimes did not oblige the government to 

34 It is likely that the jury believed that Merritt was not 

a KSO member, but that he nonetheless participated in the 

conspiracy as to the firebombing. The jury found Merritt guilty 

only of conspiracy but declined to convict him for the RICO 

murder charges. Moreover, during deliberations, the jury 

specifically asked the District Court whether membership in a 

racketeering enterprise is a prerequisite for a RICO conspiracy 

conviction. 

35 Section 1962(c) proscribes membership in a RICO 

enterprise: 

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 debt.

Section 1962(d), in contrast, provides that “It shall be unlawful 

for any person to conspire to violate ... subsection ... (c) of 

this section.”
58

prove any, let alone every, alleged fact pertaining to the 

§ 1962(c) charge as a prerequisite to establishing that Merritt 

joined a RICO conspiracy under § 1962(d). 

Here, even though the jury acquitted Merritt of the six

murders in aid of racketeering and of one charge of conspiracy 

to commit murder in aid of racketeering, the jury explicitly 

found beyond a reasonable doubt that Merritt at least attempted 

to aid in the firebombing of the Coleman family.36 That 

suffices for liability under the RICO conspiracy provision 

because a RICO conspiracy charge requires only proof of an 

agreement to assist the RICO enterprise in its criminal 

objectives. See Salinas v. United States, 522 U.S. 52, 64 

(1997) (holding for the purpose of the RICO conspiracy 

36 The jury found that Merritt:

knowingly and intentionally murdered, 

knowingly aided and abetted, and willfully 

caused the murder of, and aided, agreed or 

attempted to aid, and solicited another to 

commit, the murders of Marcella Coleman 

(sentencing factor #9), Tameka Nash (sentencing 

factor #10), Sean Anthony Rodriguez 

(sentencing factor #11), Tajh Porchea 

(sentencing factor #12), Khadijah Nash 

(sentencing factor #13), and Damir Jenkins 

(sentencing factor #14), human beings, all in 

violation of the laws of the Commonwealth of 

Pennsylvania, that is, Title 18, Pennsylvania 

Consolidated Statutes Annotated, Sections 

2502(a) and 306.

(App. at 668.) 
59

provision that, “[i]f conspirators have a plan which calls for 

some conspirators to perpetrate the crime and others to provide 

support, the supporters are as guilty as the perpetrators”).

The circumstances here, then, are distinguishable from 

those in Stirone and McKee. In those cases, the trial courts’ 

instructions authorized the jury to return a guilty verdict based 

on conduct different than that set forth in the indictment, 

whereas here, the jury charge did not expand the factual basis 

on which Merritt could be convicted. Although the 

government alleged more facts in the indictment than it proved

to the jury’s satisfaction at trial, the indictment alleged 

Merritt’s involvement in the RICO conspiracy, and Merritt has 

not identified any reason why we should doubt that the jury 

convicted Merritt for RICO conspiracy based on facts alleged 

in the indictment, namely, that he “agreed to participate in the 

affairs of a racketeering enterprise involving ... arson.” (App. 

at 3479 (Count One of the Indictment).)

Merritt argues that, because the jury did not make the 

specific finding that Merritt’s RICO conspiracy conviction was 

“based on” a RICO qualifying activity for which the maximum 

penalty is life imprisonment, his sentence for life imprisonment 

violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), 

which requires that any fact that increases a defendant’s 

sentence beyond the default statutory maximum must be found 
60

by a jury.37 The government responds that the jury verdict 

sheet did connect the RICO conspiracy conviction with the 

Coleman murders, which were RICO qualifying crimes, and 

that, even if the status of the murders as RICO qualifying 

activities could have been made more explicit to the jury, the 

phrasing of the verdict sheet was certainly not plain error. 

Merritt admits that he did not raise this issue below. 

Accordingly, the District Court’s sentence must stand unless 

Merritt can establish plain error. United States v. Olano, 507 

U.S. 725, 730 (1993). To do so, he must prove that: (1) the 

Court erred; (2) the error was obvious under the law at the time 

of review; and (3) the error affected substantial rights, that is, 

the error affected the outcome of the proceedings. Johnson v. 

United States, 520 U.S. 461, 467 (1997). If all three elements 

are established, we may, but need not, exercise our discretion 

to award relief. Id. That discretion should be exercised only 

in cases where the defendant is “actually innocent” or the error 

“seriously affect[s] the fairness, integrity or public reputation 

of judicial proceedings.” Olano, 507 U.S. at 736-37.

37 The Supreme Court explained that “under the Due 

Process Clause of the Fifth Amendment and the notice and jury 

trial guarantees of the Sixth Amendment, any fact (other than 

prior conviction) that increases the maximum penalty for a 

crime must be charged in an indictment, submitted to a jury, 

and proven beyond a reasonable doubt. The Fourteenth 

Amendment commands the same answer in [a] case involving 

a state statute.” Apprendi, 530 U.S. at 476 (internal citation 

and quotation marks omitted).
61

To secure a RICO conspiracy conviction, the 

government must prove, among other things, that the defendant 

engaged in “a pattern of racketeering activity,” 

18 U.S.C. § 1962, which requires at least two acts in 

furtherance of the RICO conspiracy. United States v. Fattah, 

914 F.3d 112, 163 (3d Cir. 2019). The maximum penalty for 

violating the RICO statute is 20 years in prison unless “the 

violation is based on a racketeering activity for which the 

maximum penalty includes life imprisonment.” 

18 U.S.C. § 1963(a) (emphasis added). 

The jury found Merritt guilty of engaging in a RICO 

conspiracy. For each defendant, the jury was also “required to 

unanimously find, beyond a reasonable doubt” whether the 

government had “proven” or “not proven” that he or she

committed other crimes. (App. at 662-63.) The other crimes 

were listed as “Special Sentencing Factors,” and included drug 

distribution conspiracy, the individual murders, the Coleman 

family murders, and witness retaliation, as defined by federal 

or Pennsylvania law. (App. at 662-669.) 

Under special sentencing factors #9 through #14, the 

jury found as “proven” Merritt’s involvement in the Coleman 

family murders. Murder was defined under Pennsylvania law, 

and the verdict form definition read as follows: 

On or about October 9, 2004, in Philadelphia, in 

the Eastern District of Pennsylvania, the 

defendants KABONI SAVAGE, ROBERT 

MERRITT, and KIDADA SAVAGE, knowingly 

and intentionally murdered, knowingly aided 

and abetted and willfully caused the murder of 

and aided, agreed or attempted to aid, and 
62

solicited another to commit, the murders of [the 

Coleman Family], all in violation of the laws of 

the Commonwealth of Pennsylvania, that is,

Title 18 Pennsylvania Consolidated Statutes 

Annotated, Sections 2502(a) and 306. 

(App. at 668 (emphasis added).) 

Merritt asserts that the jury instructions erroneously 

failed to require that the jury find that his RICO conspiracy 

violation was “based on” a RICO qualifying activity. In 

Merritt’s view, because the verdict sheet did not explicitly state 

that special sentencing factors #9 through #14 were RICO 

qualifying activities, and notwithstanding the jury’s finding 

under those factors that, at a minimum, Merritt knowingly 

agreed to aid or attempt to commit the Coleman murders, it is 

possible that the jury may have premised Merritt’s RICO 

conspiracy conviction on RICO qualifying activities other than 

murder.38 In support, Merritt points out that the jury did not 

38 Merritt argues that the Special Sentencing Factors are 

deficient for two additional reasons. First, he says that the 

language of the verdict sheet contains a “legal flaw” that 

“reinforce[s] the unreliability of the jury’s verdict,” in that “it 

told jurors that their finding had to be beyond a reasonable 

doubt either way, proven or not proven.” (Merritt Opening Br. 

at 18 n.5 (citing the following statement in the verdict sheet: 

“We, the jury, unanimously find that special sentencing factors 

#9 through #14, as to defendant Robert Merritt, are: __ Proven 

___Not Proven”).) Second, Merritt objects that special 

sentencing factors #9 through #14 permitted the jury to find 

first-degree murder in violation of Pennsylvania law without 

finding specific intent to kill. (Merritt Opening Br. at 18 n.6.) 
63

find him guilty of the several counts of RICO murder alleged 

against him. 

If Merritt is correct that murder was not the predicate 

act on which the jury found him guilty of RICO conspiracy, 

then his sentence should have been no greater than the twentyyear statutory maximum. Although the verdict sheet could 

have more clearly indicated that the sentencing factors were 

crimes on which the RICO conspiracy charge was based, any 

error was not obvious and was unlikely to have impacted 

Merritt’s sentence. First, the jury verdict form listed the 

special sentencing factors as clear sub-parts of the RICO 

conspiracy count. Second, the special sentencing factors were 

prefaced with the following: “If you have found one or more 

Merritt’s first point is immaterial because neither party 

disputes that the jury found Sentencing Factor Nos. 9-14 

proven beyond a reasonable doubt as to Merritt. As to the 

second point, Merritt acknowledges that second-degree murder 

also permits a life sentence and does not require a finding of 

specific intent. In any event, the District Court did instruct the 

jury about the specific intent requirement for first-degree 

murder. (See App. at 15172 (“Ladies and gentlemen, under 

Pennsylvania law, first degree murder is an intentional killing. 

A killing is intentional if it’s committed by lying in wait or by 

otherwise willful, deliberate and premeditated means.”)); 

(App. at 15174 (“[T]o be guilty of aiding and abetting, the 

defendant must possess the intent to promote or facilitate the 

commission of the crime. In the case of first degree murder, 

ladies and gentlemen, the defendant must have specifically 

intended that the murder occur in order for the defendant to be 

guilty of first degree murder under a theory of accomplice 

liability.”)). 
64

of the defendants guilty as to Count 1, you are also required to 

unanimously find, beyond a reasonable doubt, whether those 

defendants committed the acts described in the following 

special sentencing factors: ....” (App. at 662 (emphasis 

added).) Finally, the District Court instructed the jury: “There 

are with regard to the conspiracy count a series of sentencing 

factors that we ask you to consider.” (App. at 15222.)

Accordingly, it is implausible that the jury understood the 

sentencing factors as describing acts unrelated to the RICO 

conspiracy.39 

Moreover, Merritt’s argument would require us to credit 

his theory that, even though the jury found that he joined the 

RICO conspiracy, and even though it found that he participated 

in the Coleman family murders, the jury determined that his 

assistance in carrying out those murders was not in furtherance 

of the conspiracy, and that Merritt did other, unidentified acts 

in furtherance of the conspiracy such as, perhaps, selling drugs 

on behalf of the KSO, that connected him to the RICO 

conspiracy. This argument strains reason, especially 

considering that the Coleman murders were the only special 

sentencing factors that the jury found proven as to Merritt. 

39 Merritt cites Burrage v. United States, 571 U.S. 204 

(2014), to support his “based on” argument, but that case is 

inapposite. Burrage considered a statute that increases a 

defendant’s mandatory minimum sentence if the government 

proves that death “results from” a narcotics distribution 

offense. Id. at 209. The Supreme Court held that, as a matter 

of statutory interpretation, the “death results” language imports 

a “but-for causality” requirement, and not merely a 

requirement that narcotics use was a contributing factor in 

causing death. Id. at 216. 
65

Because Merritt has not met his burden of establishing 

that the error was obvious and affected his substantial rights,

any error here cannot be described as plain. Additionally, in 

light of the jury’s unequivocal finding that Merritt assisted in 

incinerating an entire family, a semantic shortcoming in the 

verdict form is insufficient to satisfy the fourth (and 

discretionary) clear error factor, which looks to the justice of 

the outcome and whether it would seriously affect the public 

reputation of judicial proceedings. On the contrary, were we 

to reduce Merritt’s life sentence for such a heinous crime, and 

were we to do so on a ground he did not bother to raise at trial, 

that might call our criminal justice system into disrepute. His 

life sentence is well founded.