NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0818n.06 Nos. 11-1843, 11-2163, 11- 2450, 11-2055 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v.

SEAN DONO VAN, ROB ERT FL OWERS , J OHNNY J ARREL L , and L EONARD MOO RE, Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER, GI BB ONS, and GRI FF I N, Circuit J udg es. SILE R , Circuit J udg e. L eonar d “B o” Moore, Sean Donovan, Robert Flowe rs, and J ohnny J arr ell, members of the Hig hway men Moto rc y cle Club (“H MC”), wer e char g ed and convicted of numerous crimes including violations of the Ra ckete er I nfluenc ed and Corrupt Org anizations Act (“RI CO”), 18 U.S.C. § 1962(c) ; RI CO conspirac y , 18 U.S.C. § 1962(d); v i o l ati ons of t he Violent Crimes in Aid of Racke teer ing Act (“V I CAR”), 18 U.S.C. § 1959(a) (3); drug conspirac y , 21 U.S.C. §§ 841 and 846; conspirac y to transport stolen motorcy cles, 18 U.S.C. §§ 2313 and 371; and illega l

use of firea

rms, 18 U.S.C. § 924(c)

. They appea l their convictions and resulting sentenc es, arg uing

numerous err ors by the district court during the trial, pre- sentenc ing, and sentenc ing phases. For the following rea sons, we AF F IRM IN P ART , REVERSE IN P ART , and REMAND for further proce eding s.Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. I. H M C is a mu lt i- s ta

te org anization with its national headqua rte r s lo c a te d in D e tr o it , M ic h ig a

n . I n its prime, HMC included approximately ten chapte rs, mostly in and around Detroit. The Detroit chapte r serve d as national headqua rters and its president serve d as HMC’s highe st-ranking member. Eac h chapte r, with its own office rs and internal leade rship structure , operated within the hiera rchy of the org anization as a whole. HMC members wer e require d to pay wee kly dues and many met their obliga tions by selling drug s. One of HMC’s drug deale rs was Bobby Bur ton who bot h sol d coca ine t o and purchased it from other HMC members (the “B urton conspirac y ”). Flowe rs and Donovan supplied Bur ton with

coca ine and a lso sold cocaine dir ectly to Burton’ s distributors when his supply was low. Are f Nag i, a

nother HMC dr

ug deale r, who primarily sold marijuana a nd coca ine, re lied on J arr ell and Moore to distribute his drug s within HMC g ener ally (the “Na g i conspirac y ”), and he also dist ributed drug s to Flowe rs, who then redistributed them to the HMC West Side chapte r. On numerous occasions, t he FBI rec orded te lephone c onversa tions in which Nag i, J arr ell, and Moore discussed the sale and purcha se of drug s. At trial, sever al HMC members testified g ener ally reg arding the Nag i conspirac y and specific ally that Moore distributed drug s in connec tion with the conspirac y . One HMC member, Ger ald Peters, specific ally rec alled seeing Moore share marijuana wi t h o t h er m embers in the HMC clubhouse. Recorde d phone calls also reve aled discussions of Moore’ s small marijuana purcha ses from J arr ell and his delivery of small amounts of coca ine to Nag i.

- 2 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. I n addition to traff

icking drug s, some HMC members stole motorcy cles while attending outof-town events, transporte d them back to Detroit for rea ssembly , and sold them for income. Moore reg ularly participa ted in this scheme , including his assisting HMC in stealing motorcy cles with a combined estim ated value of $463,000 during a trip to My rtle Beac h, South Carolina. J arr ell and Moore reg ularly g ener ated income this way and the FB I eventua lly re co v ere d stolen motorcy cles from both of their home s. When drug debts wer e left unpaid or when persons we re s u s p ec t ed of exposi ng HMC’s involvement in the ft, members beca me violent. On one such occa sion, H MC membe rs threa tened to kill Alan Kirchoff

for f ailing to pa

y for a purcha se. Kirc hoff c ontacted the police and provided

a written statement detailing the events. L ater , Moore war ned Kirchof

f that if he went to the police, Moore couldn’t promise that he woul d n ’t “get hurt and hurt bad.” On another occa sion, when Moore thought that someone had exposed him to the police for his involvement with stolen motorcy cles, he confr onted the man at a bar, attacke d him with a chair , and beat him up. Perhaps one of HMC’s most notable violent perf ormanc es resulted from an encounte r with one of Moore’ s childhood enemies. Moore and other HMC members confronted Charles W alker o utside of a bar and beat him to the g round. As Walker was being beate n, he hear d g unshots and quickly ran to his uncle’ s house a few blocks awa y . Once inside, Walker rec eived a pho n e ca l l fr o m Moore who threa tened to “come shoot his house u p . ” T h at n ight, trucks approa ched the house and HMC members fired fiftee n rounds into the residenc e. Following the shooting, Moore cont inued to threa ten Walker and other HMC members g rew nervous that Moore’ s err atic behavior would attrac t the attention of lawenfor ceme nt. - 3 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. The FB I ’s entire investigation of HMC included acc ount s o f t hese incidents, over 60 executed sear ch war

rants, and thousands of wireta ps. I n 2009, the United States filed its Second Superseding I ndictment ag ainst 43 individuals, including Def endants, alleg ing acts of rac ketee ring , drug possession and traff

icking , conspirac y , assault, firea rm possession, and obstruction of justice. Def endants proce eded to a jury trial during which sever al HMC members, who had cooper ated with the FB I , testified ag ainst them and provided detailed acc ounts of criminal activity within HMC. For example, Bur

ton testified to purcha sing cocai n e “a co u p l e ounces” at a time from Donovan on roug hly 20 occa sions. Howeve r, on cross-e x amination, he noted that his inclusion of Donovan had been an afte rthoug ht. HMC member Ger ald Peters testified that he hear d from another member that Donovan sold coca ine. He also testified that he had never witnessed any of these transact i o n s firsthand. Another HMC member, Wil liam Br idge s, testified that he and anoth er HM C member trave led to Donovan’ s home to purcha se coc ai n e an d , whi le he later saw the coca ine that had presumably been purcha sed, he did not witness the tran s ac t i on firsthand. HMC member L ouis Fitzner also testified reg arding numerous acts of thievery and d r u g tr a f f ic k in g , including his purcha se of marijuana

from F lowers. Moore was convicted of violating RI CO (Count 1), RI CO conspirac y (Count 2), VI CAR in rela tion to t h e W al k er assault (Count 9), conspirac y to transport stolen proper ty (Count 15), conspirac y to distribute controlled substances (Count 19), and use of a g un in rela tion to his VI CAR violation (Count 33). J arr ell and Flowe rs wer e both convicted of conspirac y to violate RI CO (Count 2) a n d co nspiracy to possess with intent to distribute controlled subst ance s (Count 19). Donovan

- 4 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al.

was convicted of conspirac y to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846 (Count 17). II. A. Leonard “Bo” Moore. Moore alleg es the following err ors on appea l: (1) the district court err ed in denying his reque st for a jury instruct ion and specia l verdic t form requiring the finding of a drug ty pe and quantity for the conspi rac y char g e; (2) he was sentenc ed above the maxi mum punishment for conspirac y to distr i bute controlled substances beca use Viag ra is not a controlled substance; (3) insufficienc y of the evidenc e; (4) the district court g ave an i m proper instruction on aiding and abetting ; (5) inconsistent and prejudicia l testimo n y wa s admitted and the district court denied Moore’ s reque st for an instruct i o n on the use of such evidenc e; and (6) the district court miscalculate d the Sentencing Guidelines and sentenc ed Moore for a discharg ed firea rm which was

n o t char g ed in the indictment or decide d by the jury

. Moore reque sts that his convictions on all counts, except for Count 15, be vacated and dismiss ed or, in the alternative, that they be vacated and

rema nded for a new trial or re sentenc ing. The United States conce des t hat t his court should g rant

a limit ed rema

nd to re d u ce Moore’ s sentenc e on Count 19 to the g ener ic statutory maxi mum for marijuana under 21 U.S.C. § 841(b)( 1)(D)

. Otherw ise, the United States i n s i s t s that Moore’ s arg uments lack mer it. 1. Jury instructions. We must first determine whe ther the district court err oneously denied Moore’s re quest for

an instruction and specia l verdic t form requiring a finding on drug ty pe and quantity for the char g es - 5 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. of drug conspiracy and rac ketee ring

. Be cause Moore did not object to the jury instruction that produce d a g ener al verdic t at his trial, his claim i s re v i ew ed for plain err or. See United States v. Olano , 507 U.S. 725, 731 (1993). Unde r plain er ror, r ever sal is pr oper only if the err or “ser iously aff ect[s] the fa irness, integ rity , or public re putation of judicial proce eding s.” Id. at 732. Citi ng Apprendi v. New Jerse y , 530 U.S. 466 (2000), Moore arg ues that beca use issues which incre ase the maxi mum penalty for a crime must be proven bey ond a reasonable doubt, the di strict court should have g rante d his reque st for an instruction and specia l verdic t form reg arding drug ty pe and quantity and its fa ilure to do so is g rounds for reve rsal of his c onvictions. A lthough Apprendi does presc ribe that the failure to instruct a jury to deter mine both the ty

pe of drug and t h e drug quantity involved amounts to pl ai n er ror, we must still find that the err or seriously aff ecte d the fairne ss, integ rity , or public reputa tion of judicial proce eding s befor e reve rsal is proper. Un i ted States v. Cleave

s , 299 F.3d 564, 568- 69 (6th Cir. 2002). At trial, the evidenc e prese nted reg arding the ty pe and quantity of drug s involved was

overw helming. First, althoug h it errone ously listed Viag ra a s a controlled substance, Count 19 of the indictment clea

rly indicates whic h drug s were involved in the conspirac y . Second, the district court deter

mined the specific quantities of drug s involved during the separ ate, y et rela ted, trial of other HM C m em b er s . Evidence of these substances was plentiful and showed that Moore was a high- ranking member of the Nag i conspirac y in which he sold larg e amounts of marijuana and was also involved in coca ine s ales. Third, the evidenc e pre sented a g ainst Moore foc used primarily on marijuana and, to a lesser deg ree , coca ine. I n fac t, Moore cites no specific instance during trial when he was linked to traff

icking Viag ra. I t is near ly impossibl e to acc ept that a rational fac tfinder would - 6 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. have convicted Moore for his invo l v em en t in a conspirac y involving Viag ra. For these rea sons, Moore c annot establish that the instructional er ror wa rra nts rever sal of his conviction. Moore also arg u es t h at the singula r ref ere nce to “the controlled substance” in the jury instructions sug g ested that the jury only neede d to find a conspirac y to distribute o n e o f the controlled substances in th e d i s t ri ct court’s listed substances which included coca ine, marijuana , steroids, Vicodin, Ecstac y , and Viag ra. Ag ain, as the evidenc e prese nted ag ainst him at trial focuse d

overw helmingly on his involvement with marijuana and, to s ome extent, cocaine , the i nstructions did not seriously aff

ect the fairne ss, integ rity , or public reputa tion of judicial proce eding s, and they do not warr ant re versa l of Moore’ s conviction. 2. Viagra as a contr olled su bstance. Be cause Viag ra is not a c ontrolled substance , it may not be the object of a drugconspirac y under 21 U.S.C. §§ 841 and 846. To the extent that the jury instructions stated otherwise, they wer e incorre ct. Moore did not object to the instructions in this re g ard, so we also revie w them for plain

err or. United States v. Castano , 543 F.3d 826, 833 ( 6th Cir. 2008). I n Hedgpe th v. Pulido , the Supreme Court reje cted a rule requiring reve rsal in case s like the instant one, wher e the jury was “instructed on multipl e theories of g uilt, o n e o f which was improper.” 555 U.S. 57, 61 (2008). I nstead, the Court held that such err ors are subject to the same ty pe of harmless err or analy sis as other instructional err ors. Id

. (citing Neder v. United States , 527 U.S. 1, 11(1999))

. We must there fore deter mine whether the err oneous instruction am o u n t s to harmless e rror .

- 7 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. Although the jury

instructions incorre ctly

stated that Viag ra is a c ontrolled substance, they also corr ectly stated that marijuana , coca ine, ecsta cy , and Vicodin are controlled substances. Thus, if the jury convicted Mo ore of conspiring to distribute any of these, his conviction should stand. Under this analy sis, Moore’ s arg ument fails beca use, as explained above, he was not implicated by t h e evidenc e prese nted at trial reg arding Viag ra. He does not identify one instance at trial wher e evidenc e connec ted him to the traff icking of Viag ra. R at h er , evidenc e conce rning Moore’ s participa tion in the Nag i conspirac y focuse d only on marijuana and coca ine. For these rea sons, the instruction, while err oneous, does not wa rra nt reve rsal of his convic tions. Neve rtheless, Moore should be resen t en ced on Count 19 employ ing a five-year statutory maxi mum sentenc e. The evidenc e prese nted ag ainst Moore focuse d overw helmingly on marijuana and, to a lesser deg ree , coca ine. A defe ndant may not be sentenc ed under the statutory penalties for

a coca ine conspirac y following a g ener al jury verdic t on a conspirac y to distribute both coca ine and marijuana as the jury may have found only a marijuana conspirac y . United States v. Dale , 178 F.3d 429 (6th Cir. 1999). This is beca use the maxi mum statutory sentenc e for conspiring to distribute a controlled subst ance depends on the substance being distributed. 21 U.S.C. § 846. I n the case of

a g ener al verdic t, this information is lacking , and the district court may not impo s e a s en t en ce exceeding the shortest maxim um sentence for a ny one of the pertinent violations. Dale , 178 F.3d at 432. There fore , Moore should be rese ntence d apply ing a stat u t o ry maxi mum of five y ear s pursuant to 21 U.S.C. § 841(b)( 1)(D)

. The United States ag ree s that rese ntencing in this narr ow reg ard is prope r.

- 8 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. 3. Moore ’s m otions f

or re -tr ial or judgme nt of acqu ittal. Moore nex t arg ues t hat t he dis trict court errone o u s l y d en i ed his motions for a new trial or judgme nt of acquittal on all counts of his convictions, except for Count 15. A denial of a motion for

a judgme nt of acquittal based upon the insufficienc y of evidenc e prese nted is revie wed de novo . United States v. Morales , 687 F.3d 69 7 , 7 0 0 (6th Cir. 2012). Thus, we must deter mine whether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of Moore’ s crimes bey ond a rea sonable doubt. United States v. Hughe s , 505 F.3d 578, 592 ( 6th Cir. 2007). a. Conspi racy c onviction

. Moore first challeng es the weig ht and sufficie ncy of evidenc e supporting his conviction for

a cons p i ra cy to distribute controlled substances in violation of 21 U.S.C. § 846. Evidence was p re s ented that Moore was part of a “tig ht cre w” in the Nag i conspirac y which involved mostl y marijuana traff

icking

. Although his involvement in the “c rew” could have indicated a mere superf icial rela tionship with Nag i without involvement in the drug business, a rational fac tfinder could have conclude d otherwise beca use of the evidenc e prese nted of his particula r involvement in these activities. Moore threa tened Kirchof f an d pressure d him to pay his “dope bill.” He also intimi dated him into keeping quiet about their dealing s and interac tions. His conviction should there fore stand.

b. RICO and RICO conspiracy convictions. Moore next challeng es the weig ht and su ff i ci ency of evidenc e supporting his RI CO conviction in viola t i o n o f 18 U.S.C. §§ 1962(c) and 1963(a)

. To establish a RI CO violation, the - 9 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. g overnme nt must p ro v e (1) the exis tence of an enter prise aff ecting interstate commerc e; (2) the defe ndant’s association with the enterprise; (3) the defendant’s pa rt icipation in the conduct of t he enter prise’s aff

airs; and (4) a connec tion bet we en t h e participa tion and a pattern of rac ketee ring activity

. United St ates v. Fowl er , 535 F.3d 408, 418 (6th Cir

. 2008). Moore arg ues t hat t he thi rd and fourth elements wer e not satisfied. I n order to meet these elements, the United States must have proven tha t Moore par

ticipated in the oper ation or mana g ement of the enter prise either by making decisions on behalf of the enter prise or knowing ly car

ry ing them out, an d t hat he completed a minimum of two predic ate acts within a ten-y ear period in further ance of the enter prise. Id

. at 419; 18 U.S.C. § 1961(5). Ample evidenc e of Moore’ s participa tion and pattern there of was prese nted at trial. He led other HMC members in stealing motorcy cles o n a vis it to My rtle Beac h, which benefitted several HMC leade rs. I n addition, his role in the Nag i conspirac y demonstrated sufficie nt involvement in HMC’s org anized drug -traf ficking aff

airs, as he car efully planned and implemented theft and drug scheme s. These f

acts support Moore ’s substantive RI CO convictions. Moore’ s RI CO conspirac y conviction i s als o supported by the evidence presented at trial. To sustain a conviction for conspirac y to violate RI CO, the United States m u s t p ro v e that a defe ndant enter ed into an ag ree ment to violate RI C O. 1 8 U.S.C. § 1961. This showing require s proof that the defendant int ended to further the endeavor which, if succ essfully completed, would satisfy all the elements of an underly ing RI CO violation. Fowler , 535 F.3d at 421. Particular to this appea l, the United States must prove that Moore ag ree d that he or someone else would commit two

- 10 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. predic ate acts in f

urthera nce of the cr iminal endeavor

. United States v. Drive r , 535 F.3d 424, 432 (6th Cir. 2008). Moore’ s RI CO conspirac y conviction is premised upon two p r e d ic a te a c ts , Ra c k e te e r in g A cts 8 and 11. He challeng es the latter of these two, which alleg es that he knowing ly and intentionally ag ree d to “distribute m ore than five kil og rams of cocai n e, as well as marijuana , Vicoden, Viag ra, Ecstac y , and other controlled substances.” Evidence at trial discussed above sufficie ntly established that Moore distributed drug s for Nag i and assisted him in collecting ou t s t an d i n g d rug debts from purcha sers. Recorde d telephone conver sations captur ed Moore’ s discussing sales of marijuana and deliverie s of coc aine. The se fa cts support his conviction for RI CO conspirac y .

c. Assault wi th a dangerous weapon in aid of racket eer ing and aidin g and abetting of the same (Count 9). For his connec tion to the Walker incident, Moore was convicted of assault with a dang erous

we ap o n i n ai d of rac ketee ring and aiding and abetting assault with a dang erous wea pon in aid o f

rac ketee ri ng pursuant to 18 U.S.C. §§ 1959(a) (3) and (2), and Mich. Comp. L aws §§ 750.82 and 767.39. He challeng es his participa tion in the underly ing assault, as well as the finding that he knew his acc omplices were ar m ed with a dang erous wea pon. The ly

nchpin of his arg ument is that no witness testified t o seeing him wi t h a we apon during the i ncident. Howeve r, and as he conce des, actua l possession of a firea rm is not require d for acc omplice liability

. See Rattigan v. United States , 151 F.3d 551, 557 (6th Cir. 1998). As long as he was a willing participa nt, and he knew that others

wer e arme d, his conviction should stand. The evidenc e speaks clea rly on this point. Walker testified that Moore participa ted in the assault and his uncle simil arly rec alled seeing Moore at the bar wher e - 11 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. the shooting had occur

red, as he identified Moore to police as one of the perpe trators. On that same day , a rec orded telephone conver sation reve aled Moore’ s willingness to assist with the assault and sug g ested he had wea

pons rea dily ava i l able for use. These fac ts are sufficie nt to support the conviction on Count 9.

d. Use of a fi rear m durin g and in relat ion to a crim e of violence, and aidin g and abetting of the same , in viol ation of 18 U.S.C. §§ 924 (c) and 2 (Coun t 33). For his involvement in the Walker shooting, Moore was convicted of using a firea rm during and in rela tion to a crime of violence. The district court omitted the term “ca rry ” from its instruction to the jury

and instead instruc ted the jury solely reg arding “use.” Moore a rgues that this omission rende rs the instructions “as a whole so clea rly err oneous as to likely produce a g rave miscarr iag e of justice.” Section 924(c) establishes penalties for the use or car ry ing of a fire arm in further ance of a violent crime. Thus, § 924(c) may apply in case s wher e either use or car ry ing is prese nt. Her e, the indictment corr ectly mentioned bot h options, y et t he jury instructions define d only “use,” and n o t “ca rry ing.” Howeve r, the instructions limit ed the char g e ag ainst Moore to “ using a firea rm ” in

connec tion with the Walker shooting. The narr owing of t he jury instruction in this reg ard is permissible, despite that the word “ca rry ” was not stricken from the indictment. See United States v. Miller , 471 U.S. 130, 136-37 (1985). The five-y ear mandatory minimum sentenc e for using a firea rm in rela tion to a violent crime incre ases to ten y ear s if a fire arm is dischar g ed. 18 U.S.C. § 924(c) (1)( A)(iii). At sente ncing , the district court exercised its discretion under Harris v. United States , 536 U.S. 545 (2002), to find that - 12 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. Moore had in fac t discharg ed a fi re ar m and there fore applied a ten-y ear mandatory minimum sentence. Moore arg ues that beca use the element of discharg ing aff ects the statutorily presc ribed rang e of permissible sentenc es, it must be dec i d ed b y a j ury . At the time of this appea l, Moore’ s arg ument plainly contra dicted the Supreme Court’s holding on this issue in Harris , 536 U.S. at 557, which allowed judicial fac tfinding which would incre ase a mandatory minimum sentenc e. Since the parties submitt ed their briefs, howeve r, the Supreme Court has expressly overr uled Harris and held that “any fac t that increa ses the manda tory minimum is a n ‘ele ment’ that must be submitt ed to the jury .” Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013). Her e, beca use the district court, rathe r than a jury , found discharg ing of the firea rm, Moore’ s sentenc e for violation of § 924(c) (1)( A) must be vac ated a

nd rema nded for rese ntencing consistent with the jury ’s ver dict. 4. Whether c rim inal i ntent is an essential elem ent of aid ing an d abetting. Moore c halleng es the district cour t’s instruction to the jury

reg arding the eleme nt of intent

nece ssary to impose a iding a nd abetting liability . Moore did not object to this e rror , so we revie w it for plai n er ro r. United States v. Katuramu , 174 F. App’x 272, 278 (6th Cir. 2006). J ury instructions are vie wed “ in the context of the instructions a s a whole and the trial re cord.” United States v. Collins , 78 F.3d 1021, 1035 ( 6th Cir. 1996) (citation omitted). The district cour

t instructed the jury

as follows re g arding aiding and abe tting: Any one who intentionally assists someone else in committing a crime is as g uilty as the p er s o n wh o direc tly commits it and can be convicted of

that crime a s an aide r and a bettor. To prove that a defe ndant acte d as an aider and abettor, the following elements must be prove d bey ond a re asonable doubt.

- 13 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al.

One, that the a lleg ed cr ime was a ctually committed. Two, that befor e or during the crime, the defe ndant did something to assist in the commissi on of the c rime. Three , that the defendant must have intended the commission of the crime or must have known that the other person i n t en d ed its commission at the time of giving the assistance

. (R. 2067 at PAGE I D #14523) (empha sis added)

. The ins t ru ct i o n s m i rror those for aiding and abetting under Michig an state law. Cf. People v. Moore , 679 N.W.2d 41, 49 (Mich. 2004). Moore arg ues t hat t his definition produce d a mi scar riag e of justice because it omits the element of i ntent and beca use it fails to distinguish betwee n the role of a specta tor, which does not amount to a iding and abetting , and that of a participa nt, which does. Howeve r, he does not elabor ate on this arg ument

or provide any support there of. He also fails to acknow ledg e that the jury instructions inc luded the following : “Any one who intentionally assists someone else in committing a crime is as g uilty as the person who direc tly commits it and can be convicted of that crime as an aider and abetter .” Although the jury instructions w ere short of perf ect, they did not rise to the level of reve rsible err or beca use 1 they indeed instructed the jury twice that Moore must have acte d intention al ly in order to be convicted. T here fore , the instructions are not plainly err oneous. 5. Evid ence of other ac ts. Offic er Br ooks testified that Donald Meg danoff , Walker’s uncle, identified Moore to police

as the perpe trator. Moore objected to this testimony beca use Meg danoff had testified himself at trial

I t i s p u z z l i n g t h a t t h e d i s t r i c t c o u r t m o d e l e d i t s a i d i n g a n d a b e t t i n g i n s t r u c t i o n o n s t a t e l a w . F e d e r a l a i d i n g 1 a n d a b e t t i n g i n s t r u c t i o n s a r e r e a d i l y a v a i l a b l e a n d r o u t i n e l y g i v e n . S e e S i x t h C i r c u i t P a t t e r n J

u r y I n s t r u c t i o n s , § 4

. 0 1 A i d i n g a n d A b e t t i n g . - 14 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. to being unable to identify any shooters. Howe ver, Me g danoff had also specific ally testified t hat Moore “took a couple of steps toward [hi m] and he said, ‘You f**** want some of this too? ’” Ba sed

on this testimony , the district cour t p er m i t t ed Br ooks’s testimony pursuant to Fe dera l Rule of Evidence 801(d)( 1)(C), which allows admission of an out-of-c o u rt statement i dentify ing a person

as someone the decla

rant perc eived ear lier as long as “the decla rant testifies and is subject to crossexamination.” We revie w evidentiar

y ruling s for abuse of discretion. United States v. Bonds , 12 F.3d 540, 554 (6th Cir. 1993). Be cause admissibili ty pursuant to Fe dera l Rule of Evidence 801(d)( 1)(C) does not turn on whether the decla rant’s trial testimony is consistent with his prior statement, the district court did not abuse its discretion in allowing Br ooks’s testimony

. Fur thermore , and despite Moore’ s arg ument to the contra

ry , the district court proper ly ruled that a limit ing instruction on its use solely for impeachme nt was unnece s s a r y a s s tatements of prior identifications are admissible as substantive evidenc e. United States v. Lopez , 271 F.3d 4 7 2 , 4 8 5 (3d Cir. 2001) ( quoting Fe d. R. Evid. 801 advisory committee’s note) . There fore , Moore’ s arg ument on this point fails. Moore also challeng es the district court’s admission of a rec orded phone call betwee n Moore and Nag i. During the rec ording , Moore descr ibed beating an unidentified person in a bar fig ht. Moore arg ues t hat t he assault was irr eleva nt to any of the off enses of which he w as convic ted and

serve d no purpose other than to e stablish his propensity for violence. This a rg ument fails bec ause the rec ording , while prejudicia l, was probative evidenc e of Moore’ s involvement in the RI CO and VI CAR e nterprise s as it demonstrated that he employ ed violent tactics to further the objectives of the enter prise. See United States v. Garland , 320 F. App’x 295, 305 (6th Cir. 2008). For this rea son, - 15 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. the district court did not abuse its discretion in admitting th i s evidenc e. Moore asser ts simil ar arg uments reg arding the district court’s admission of 27 firea rms seized from Nag i’s residenc e and g raphic photos of fac ial injuries to Ger ald Dee se, who was assaulted by another HMC member. L ike the rec orded phone conver sation betwee n Moore and Nag i, these items wer e probative evidenc e of

an enter prise that used violence to further its object i v es . T h e district court did not abuse its discretion in admitting them a t trial. Finally , Moore challeng es the admission of Bur nett’s testimony conce rning selling coca ine for Bur ton and havin g seen Nag i, Moore, and J arr ell g o out toge ther on one occa sion to collect a drug debt from someone. Moore arg ues that a proper foundation for this testim o n y wa s lacking beca use B urnett did not participate in the Nag i conspirac y and admitted that he did not know who prec isely in HMC was dealing drug s with whom. Howeve r, Moore fails to mention t h at Bu rn ett continued on in his testimony to state that he had discussions with Nag i about his drug activity and had witnessed Nag i’s conver sations with other HMC members about their org anized drug activities. There fore , while Moore prese nts fac tually valid points, the district court did not abuse its discretion in permitting Bur

nett’s testimony beca

use it was soundly supported by his own knowledg e of events. 6. Guidelines calculation. Moore arg ues that the district court err oneously calc ulated his Guidelines s en t en ce by apply ing cer

tain enhanc ements an d b y rejecting an offe nse-leve l reduc tion. Challeng es to the proce dural or substantive rea sonablene ss of a sentenc e are revie wed for abuse of discretion. United States v. Bolds , 511 F.3d 568, 578-81 (6th Cir. 2007). To the exte n t t h at sentenc ing challeng es

- 16 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al.

conce rn fac tual deter

minations, we revie w them for clea r err or. Id

. at 579. L eg al conclusions are revie wed de novo

. Id

. Moore first challeng es the district court’s 12-leve l enhanc ement and 2-leve l enh an ce ment pursuant to USSG §§ 2B1.1( b)(1) and (2) for the amount of loss resulting from HMC’s motorcy cletheft activities. To succe ssfully cha l leng e the district court’s loss-calc ulation, Moore must demonstrate “that the court’s evalua tion of the loss was not only inexact but outside the universe of

acc eptable computations.” United St ates v. Martinez , 588 F.3d 301, 326 (6th Cir. 2009) (internal quotation marks and ci t at i o n s omitted). Moore cannot meet this require ment beca use the district court estimated the total loss as betwee n $200,000 and $400,000, which is conser vative based upon the testimony of Neil Wi s n er , an investigator for the National I nsuranc e Crime Bur eau, who estimated that the total value of the motorcy cles stolen in South Carolina was $463,000. There fore , the district c ourt’s estimate of total loss falls well within the universe of acc eptable computations. Moore also challeng es the district court’s application of a 2-leve l e nhance ment pursuant to USSG § 2B1.1( b)(4) for being in the business o f re ceiving and selling stolen proper ty

. We have aff irmed t he application of t his enhanc ement where e vidence establishes t hat a defe ndant deals in stolen merc handise by assisting in the proce ss of obtaining and sorting items and t h en prepa ring them for resa le. See United States v. Abdelsalam , 311 F. App’x 832, 843 (6th Cir. 2009). Be cause evidenc e was prese nted that Moore coordina ted eff orts to steal numerous motorcy cles, store them, and ultimately

rese ll them, the enhanc ement wa s corr ectly applied. Finally , Moore challeng es the district court’s decision not to apply an offe nse-leve l reduc tion pursuant to USSG § 3B1.2 for his mitigating role in the char g ed offe nses. Howeve r, at sentenc ing, - 17 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. Moore ag ree d that a sentenc ing reduc tion pursuant to § 3B1.2 was inappropria te. His arg ument was there fore waived and should not be considere d on appea l. See United States v. W ard , 506 F.3d 468, 477 (6th Cir. 2007). B. John ny Jarrell. 1. Inclusi on of

Viagra as a “contr olled su bstance.” J arr ell corr ectly asser

ts that, for the same rea sons articula ted by Moore and discussed above in Part I I

. A.2., the district court improperly sentenc ed him above the maxi mum sentenc e for his offe nse. As with Moore’ s char g es, the jury was err oneously instructed on J arr ell’s drug conspirac y char g e that Viag ra is a controlled substance. As J arr ell’s sentenc ing calc ulation depende d upon the ty pes and quantities of drug s supporting his conviction, the jury should have been instructed to return

a specia l verdict to this eff ect. Be cause it was not, the district court err ed in imposing a sentenc e which exceede d the shortest maxi mum se ntence for any one of the pertinent violations. Dale , 178 F. 3 d at 432. J arr ell should there fore be rese ntence d apply ing a statutory maxi mum of five y ear s pursuant to 21 U.S.C. § 841(b)(1) (D). T he United States a g ree s that rese ntencing in this reg ard is proper . 2. P oints f

or leader ship role in conspiracy. J arr ell also appea ls the district court’s application of a four- poi n t en h an cement for his leade rship position in the drug -distribution conspirac y . See USSG § 3B1.1. “[R] eview of the leg al conclusion t hat a person is an orga nizer or l eade r under Section 3B1.1 .

. . is defe rential.” United States v. W

ashington , 715 F.3d 975, 983 (6th Cir. 2013). To qualify for a leade rship-role sentenc ing enhanc ement, a “d ef

endant need only org anize, supervise, or lead one other participa nt.” United - 18 -Nos. 11-1843, 11-2163, 11-2450, 11-2055

United States v. Sean Donovan, et al. States v. Currier , 473 F. App’x 469, 474 (6th Cir. 2012). Factors to consider in this analysis include:

the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruit of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. Id . at 474 (quoting USSG § 3B1.1). At trial, evidence was presented that Jarrell served as president of HMC’s Detroit chapter one of the organization’s highest-ranking positions and that he sat on HMC’s national committee. He also operated as a distributor of Nagi’s marijuana within HMC and led efforts to pilfer unlocked motorcycles around Detroit. Considered in their entirety, these facts provide ample support for the district court’s application of a sentencing enhancement for Jarrell’s leadership role within HMC. 3. Quantity of marijuana relied upon at sentencing. Jarrell argues that the district court erred when it determined that he was accountable for 92.89 kilograms of marijuana because the evidence presented at trial only connected him with 20 pounds of marijuana. In the earlier trial of Nagi, Jarrell’s marijuana supplier, the court established that the Nagi conspiracy had distributed 92.89 kilograms of marijuana. As we have recognized, “a district court is indeed permitted to rely on testimony presented in a related proceeding, so long as there are sufficient indicia of reliability.” Logan v. United States , 208 F.3d 541, 544 (6th Cir. 2000). Jarrell does not challenge the district court’s determination during Nagi’s trial of the quantity of marijuana involved or point to any specific testimony which may have contaminated this finding.

- 19 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. For this rea son, we aff

irm the district court’s deter mination that J arr ell is responsible for the entire amount of marijuana

attributable to the Na g i conspirac y as dete rmined in an e arlier trial. 4. Whether suf

fi cient evid en ce was presente d to sup port Jarre ll’s conviction for conspiracy to possess wi th intent to distribute controlled substan ces. To prove p o s s e s s io n o f a controlled substance with intent to distribute, the United States must show that a defe ndant knowing ly possessed a controlled substance with intent to distribute it. United States v. Benne tt , 291 F.3d 888, 895 (6t h C i r. 2002). To establish a drug conspirac y , the United States must prove that a defenda nt enter ed int o an agree ment to eng ag e in unl awf ul behavior , had k n o wledg e and intent to join the conspirac y , and participa ted in the conspirac y . United S t a t es v. Morrison , 220 F. App’ x 389, 392 (6th Cir. 2007). J arr ell contends that his conviction must be set aside beca use the evidenc e was insufficient to establish that he “ente red into an ag ree ment to violate drug laws or that he had the knowledg e and intent to join a drug conspirac y .” He contends that the only evidenc e reg arding his involvement was Fitzner’s testimony that 20 kilogr ams of marijuana wer e retrie ved from J arr ell’s home. Other HMC

m ember s testified that J arr ell held a full-time job and was not depende nt upon income from d ru g sales or that they had no actua l knowledg e of J arr ell’s specific role in HMC’s drug-d i s t ri b u t i on scheme

. Despite these statements, howeve r, sufficie nt evidenc e was prese nted in support of finding that J arr ell indeed voluntar ily and knowing ly

enter ed into the conspira cy . For example, his role as

a chapte r president speaks volumes to his eng ag ement in these activities. Fitzner’s testimony about being order ed to pick up marijuana from J arr el l est ablishes his knowledg e and intent to be a

- 20 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. p ar t i cipant. This is consistent with other testimony that J arr ell purcha sed steroids from other members a

nd that members owe d him money for va rious drug purcha ses. 5. Whether suf

fi cient evid en ce was presente d to sup port Jarre ll’s conviction for conspiracy to violate R ICO. To sustain J arr ell’s conviction for his conspirac y to v iolate RI CO, the United States must show that he enter ed into an ag ree ment to violate RI CO. 18 U.S.C. § 1961. This showing require s proof that J arr ell intended to further the endeavor which, if succe ssfully com pleted, would satisfy all the elements of an underlying RI CO violation. Fowler , 535 F. 3 d at 4 2 1

. To prove a RI CO violation, the United States must show (1) the exis tence of an enter prise which aff

ects i n t er state

commerc e; (2) the defe ndant associated with that enter prise; (3) the defe ndant participa ted in the conduct of the enter

prise’s aff

airs; and (4) the defe ndant’s participa tion was connec ted to a pattern of rac ketee ring activity

. Id. at 418; 18 U.S.C. § 1961; United States v. Sinto , 723 F.2d 1250, 1260 (6th Cir. 1983)

. J arr ell disputes the first and third of these fac tors, both of which wer e sufficie ntly supported by the evidenc e. First, HMC was clea rly an enter

prise as evidenc ed by its ong oing formal and informal org anization and by the various criminal activities which wer e interre lated and planned among its members. See United States v. Turkette , 452 U.S. 576, 582-83 (1981). HMC’s org anized, hiera rchic al structure provided it with an eff ective mecha

nism for direc ting its aff

airs, supporting its classification as an enterpr ise. Second, a mple evidenc e supports the finding that J arr ell ag ree d to participa te in the enter

prise’s conduct with knowledg e and intent that other HMC members would commit at l east two predic ate acts in further ance of t h e enterprise, as require d for his conviction. See United States v. Nguyen , 255 F.3d 1335, 13 41 (11th Cir. 2001). J arr ell serve d as the Detroit - 21 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. chapte r president, one of HMC ’s h i gh es t -ranking members in the country , and he sat on the org anization’s national committee. Evidence was p r e s e n te d th a t h e c o n s p ir ed to distribute controlled substances with Moore and others as part of the Nag i conspirac y . Additional evidenc e indicated that he had knowledg e of HMC’s motorcy cle thefts, as he allowed Moore to store at least one stolen motorcy cle in their sha

red c ondo. C. Robert

F low ers . Flowe rs was convicted of conspirac y to violate RI CO and conspirac y to distribute controlled substances. He challeng es t hese convictions and arg ues specifically that (1) his RI CO conspirac y conviction, for violation of 18 U.S.C. § 1962(c) should be vacated bec ause the evidenc e could not establish his ag ree ment that someone would commit two predic ate acts; and (2) the evidenc e did not establish his ag ree ment to distribute controlled substance s in violation of 21 U.S.C . § 846. These arg uments fa i l beca use t he evidence showed t hat, as a leader within HMC, Flowe rs participa ted in the Bur

ton conspirac y . He picked u p a s h ipment of coca ine and delivere d it to Bur ton’s house. Fitzne r t es t ified that Flowe rs dealt drug s from the HMC West Side chapte r clubhouse. These fac ts establish that he committed acts in further ance of HMC’s RI CO violations (he transporte d drug order s and so l d t h em himself) and that he ag ree d to others’ participa tion in further ing these activiti es (he serve d as a chapter office r and traff icked drug s with other members from the HMC clubhouse). For these rea sons, this convictions are sufficie ntly supported by the evidenc e.

- 22 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. D. Sean Donovan. Donovan w a s c o n v ic te d o f c onspiring to distribute over five kilogr ams of coca ine in violation of 21 U.S.C. § 846. He challeng es the district c ourt’s admission of evidenc e of his selling coca ine to two HMC members, Wil liam Br idge s and J ohn McGinn. The United States arg ues that Donovan failed to pre serve this iss ue for appea l beca

use it wa s not r aised befor e the district c ourt. Whether Donovan’ s objection p ro p er l y p reserved his prec ise g rounds for appea l need not be decide d, howeve r, since his a

rguments fail under

revie w for e ither abuse of discre tion or plain err or. Peters testified ove r Donova n’s objection that anothe r HMC member, McG inn, told P eter that Donov an was selling coca ine. On cross-e x amination, Peters acknow ledg ed that he never firsthand saw Donovan sell coca ine to any one. Peters’s testimony was rele vant and did not violate the Confrontation Clause. U.S. Const. amend. VI

. Evidence of his repe ated coca ine sales to Bur ton and others was probative of his involvement i n t h e co n spiracy

. Moreove r, Donovan’ s Six th Amendment rig ht was not violated beca use the Confront a

ti o n Cl a u s e p r o te c ts d e f

e n d a n ts ag ainst outof-c ourt testimonial statements which the decla rant would rea sonably anticipate being used ag ainst him. United States v. Johnson , 581 F.3d 320, 325 (6th Cir. 2009). The state ment in question was not testimoni al and ther efor e does not implicate D onovan’s Confr ontation Clause rig hts. Br idge s’s testimony was also properly permitted beca use it was rele vant to Donovan’ s supply ing coca ine t o members of the Burton conspirac y . Donovan an d Bridge s wer e both part of the B urton conspira cy , and Bridg es’s testim ony on this topi c wa s directly probative of

Donovan’ s participa tion. For these rea sons, Donovan’s a rg uments lack mer it and should be reje cted.

- 23 -Nos. 11-1843, 11-2163, 11- 2450, 11-2055

United States v. Se an Donovan, e t al. V. CONCLUSION Def endants’ convictions are AF F IRMED

. Howeve r, beca use the sentenc es for both Moore and J arr ell wer e tainted by the incorre ct cate g orization of Viag ra as a co n t ro l l ed substance, and beca use the district court improperly applied a ten-y ear mandatory minimum sentenc e on Moore’ s convictio n for violating 18 U.S.C. § 924(c) (1)( A), their sentenc es are REVERSED and REMAND ED to the district court for re- sentenc ing c onsistent with thi s opinion.

- 24 -