UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5204

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY LYNN TOLIVER, JR., a/k/a BG, a/k/a Lil Gary, a/k/a 

Garry Toliver, Jr.,

Defendant - Appellant.

No. 08-5217

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MIKAL MUSTAFA MIX, a/k/a Stash, a/k/a Dirty Boy, a/k/a 

Mikail Mix, a/k/a Man Man,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Jerome B. Friedman, District 

Judge. (2:08-cr-00022-JBF-JEB-3; 2:08-cr-00022-JBF-JEB-2)

Argued: May 14, 2010 Decided: July 13, 2010

Amended: November 12, 2019
2

Before GREGORY, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk, 

Virginia; Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, 

SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for 

Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED STATES 

ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J. 

Boente, United States Attorney, Alexandria, Virginia, William D. 

Muhr, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Gary Toliver (“Toliver”) and Mikal Mix (“Mix”) appeal their 

convictions for racketeering and various violent crime, gun, and 

drug distribution offenses connected to gang activity by the 

Bounty Hunter Bloods (“BHB”) in Norfolk, Virginia. On appeal, 

they raise, both jointly and individually, a number of claims 

concerning their trial. For the reasons that follow, we affirm 

both Toliver and Mix’s convictions in their entirety.

I.

This case concerns Toliver’s and Mix’s participation in the 

BHB gang in Norfolk, Virginia. The evidence presented at trial 

described both the overall structure of the gang and specific 

instances of violent conduct or drug and gun distribution 

activity involving the defendants.

A.

The BHB was established in Norfolk in the early 1990s by an 

Original Gangster of the BHB in New York, Cody. The BHB has a 

formal hierarchical command and authority structure with defined 

roles. The BHB controlled several neighborhoods of Norfolk, and 

each was called a “chapter.”1 Each chapter was led by a 

 1 Norview was chapter 1; Coleman Place was chapter 2; Little 

Creek was chapter 3; Ballentine was chapter 4; Poplar Hall was 

chapter 5, and University Apartments was chapter 7.
4

different BHB member called a general. The general controlled 

all BHB activity in his chapter. Each general, in turn, had 

other members working underneath him in his chapter called young 

gangsters (“YG”) or little homies.

Both Mix and Toliver had prominent roles in the BHB. Mix, 

also known as Stash, Man Man, or Dirty Boy, was one of the 

founding members of the gang from Mount Vernon, New York and was 

the general of the Ocean View area of Norfolk. Toliver, also 

known as BG, was the general of Norview. Antonio Fulford, a 

codefendant who pleaded guilty and testified for the 

prosecution, was the general of Little Creek. Another 

cooperating coconspirator, hereinafter referred to as “John Doe”

or “Doe,” was the leader of the BHB overall, and all of the 

generals, including Mix and Toliver, reported to him.

Individuals can become members of the BHB in three ways. 

The most common way is to “shoot a 31” whereby the person 

looking to join stands in the middle of five BHB members in a 

five-pointed star formation. The current members then beat the 

inductee for thirty-one seconds. Individuals can also be 

blessed in by current members of the gang. Finally, women, 

called rubies, can be “sexed in,” by having sexual intercourse 

with five members of the gang. John Doe estimated that at the 

time he was arrested along with Mix and Toliver, the BHB had 
5

between 300 and 400 members, mostly teenagers but with some 

members as young as nine.

Members of the gang from all chapters would meet every two 

to three months. During these meetings, the generals would 

report what was happening in their chapter, violations of gang 

rules would be cured by having the offending member shoot a 31, 

and members would be encouraged to “represent their flag” by 

letting others know they were part of the BHB. Toliver led most 

of these larger meetings, and Mix would also participate.

Within each chapter, the members of the BHB made money 

through home invasions, robberies, and sales of narcotics. 

Additionally, members were expected to “put in work,” to do an 

act of violence, such as a robbery or shooting, to represent the 

BHB. Rubies often put in work by attracting a robbery victim 

and leading him to a group of waiting gang members. If a YG or 

little homie refused to put in work, they would be disciplined 

by having to shoot a 31 again. If members seriously dishonored 

the gang, they could be killed.

The BHB has its own language and lingo that members use 

between themselves. For example, members avoid using words that 

begin with the letter “C” and instead change it to a “B” because 

the letter “C” is associated with the Crips, a rival gang. The 

BHB greet each other with the phrase “what’s poppin” or with the 

call “blllaat.” Additionally, members are required to learn 
6

oaths to be sworn to the gang. Generals would test YGs or 

little homies on their knowledge of the gang by walking up to 

them and “G Checking” them, asking them a question about gang 

protocol, which also served to make sure that someone was not

“false flagging” and pretending to be a member of the gang. The 

BHB’s symbol is a five-pointed star. Each point on the star has 

a meaning: body, unity, love, lust, and soul. The BHB wear red 

as an identifying color and put a red bandana in their right

back pocket. They use hand symbols such as “ck,” meaning Crip 

killer, and a five-pointed star. All of these identifying 

characteristics serve to brand the gang, both within its 

membership and to rival gangs and the public.

B.

In addition to being part of the overall command structure 

of the BHB, Toliver and Mix were involved in several violent 

incidents perpetrated by BHB members between March 2004 and 

November 2007.

1.

On March 5, 2004, a dance for teenagers was held at the VFW 

in Ocean View. Many members of the BHB and Crips attended. 

Tension between the gang members rose during the dance, so the 

attendees were sent outside by the organizers, and the dance 

ended. Once outside, a fight started, and a member of the BHB 

called Mix and told him to bring guns to the VFW. Mix then 
7

drove to the VFW and passed out four or five guns to the BHB 

members who were there. They started shooting into the crowd 

and one girl, who was uninvolved in the fight, was grazed in the 

head, requiring emergency care.

2.

On May 1, 2004, Samuel Oteng and Harold Gladden, two naval 

officers, rented a room at the Tides Inn in Norfolk, Virginia so 

that they could hold a going away party. Upon checking in, they 

noticed some women at the hotel and greeted them. The women, 

unbeknownst to the sailors, were members of the BHB. Oteng and 

Gladden invited the women to come to the party later that night, 

but they never showed. After the party had broken up around 

2:00 a.m. and the guests had left, Gladden and Oteng were 

confronted by three men carrying guns outside their hotel room. 

One of the men grabbed Oteng’s gold chain off his neck and then 

attempted to force him into the room. To avoid being trapped in 

the room with armed individuals, Oteng offered to let the men 

search his car for money, and the men took his keys and drove 

the car away. Oteng ran after them to see where the men were 

taking the car. As he was doing so, a shot was fired. One of 

the female members of the BHB present at the hotel that night

testified that Mix fired the shot and was one of the men who 

threatened the sailors that evening.
8

3.

In April 2006, John Doe, the leader of the BHB, heard that 

Rich Porter, a drug dealer, accused him of false flagging. In 

response, Doe ordered Toliver to get Porter and bring him to 

Doe’s house in Coleman Place. Toliver drove to Porter’s house, 

showed him a 9mm handgun, and demanded he get in the car. 

Toliver then drove Porter to Doe’s house where Doe interrogated 

him about the rumors he was spreading. Ultimately, Doe let 

Porter go.

4.

In spring 2007, two men broke into Andre Parham’s house and 

demanded money from him. Parham was a drug dealer with whom the 

BHB did business. The men hit Parham and burned him on his back 

with an iron before departing. Later that evening, the men came 

back and started pounding on his door. Parham responded by 

shooting through the door. On August 20, 2007, Parham was again 

the victim of a home invasion. He became unconscious after the 

men entered his home and beat him. He was again burned with an 

iron and cut on his arm. John Doe testified that Toliver was 

present at that home invasion with other members of the BHB and 

stole heroin and guns.

5.

In July 2007, Timothy Minter, Jamal Ashe, and James 

Robertson, Minter’s cousin, were all spending time together in 
9

Norfolk where Minter and Ashe were stationed with the Navy. One 

night, after dinner, they met two women in front of the pizza 

parlor where they ate. The women did not have a car, so they 

offered to drive the women home. Robertson asked for their 

phone numbers, but the women preferred to take his number from 

him.

Later, on July 27th, Robertson received a call from one of 

the women inviting him to hang out. He accepted and drove with 

Minter and Ashe to 16th Bay in Norfolk where the girls had

indicated they would be. When Robertson, Minter, and Ashe 

pulled into the parking lot, they saw seven girls as well as one 

man.

After Robertson, Minter, and Ashe exited the car, and began 

speaking with the group, ten men ran out from an alley and 

approached them holding guns. The men demanded money and 

started beating Robertson, Minter, and Ashe and stripped off 

their clothes. One of the women began to get nervous because of 

the level of beating, and she shouted “police” to get the 

attackers to scatter. Ashe and Minter were able to run away to 

safety, but Robertson was already unconscious. Minter and Ashe 

both suffered significant contusions and abrasions from the 

beating. Robertson never regained consciousness and died of 

acute brain injury due to blunt force trauma from being beaten 

in the head with a shotgun.
10

Through investigation and canvassing after the incident, 

the police found the vehicles involved in the robbery and murder 

and tracked them to a hotel room. There, they arrested six 

suspects, all members of the BHB, including the women who called 

Robertson. In interviews with the suspects, the police 

determined that Curtis Newby, also known as CK or Crip Killer, 

was the individual who had beaten Robertson. Skylar Hayward, a 

member of the BHB and one of the girls Robertson met earlier, 

stated that Curtis Newby, also a BHB member, told the girls to 

call Robertson because he wanted to rob him.

When John Doe saw a report on television about the murder, 

he called Mix and told him what had happened. Mix told him that 

CK had beaten a man to death with a shotgun that Mix owned. He 

said that he was going to take CK to New York to hide out with 

Cody in Mount Vernon.

6.

Also on July 27, 2007, John Doe accompanied Toliver and 

several other BHB members to Club Reign on Granby Street in 

Norfolk. After the club let out, Doe, along with the others, 

passed out copies of a CD he had made of rap about the BHB to 

patrons leaving the club. When a car occupied by two men 

refused to take a CD, the situation escalated, ending when 

Antonio Fulford shot both of the occupants of the car as they 

attempted to flee, one in the leg, one in the hand. To leave 
11

the scene of the shooting, all of the BHB members jumped in 

their car with Toliver driving. Responding to reports that a

white truck had fled the scene, a Norfolk police officer 

attempted to pull over the car that Toliver was driving. 

Instead of stopping, Toliver fled, and the resulting high speed 

chase ended when he crashed on an exit ramp.

7.

In October 2007, Gregory Lee, a gun and drug dealer with 

whom the BHB did business, had an argument with Toliver after 

Toliver shorted Lee $400 on a gun deal. At that time, Lee 

called Toliver a young punk. On November 15, 2007, at 9:00 

a.m., Lee heard pounding on his door and someone yell “DEA 

search warrant.” When he opened the door, two men ran in the 

house, pistol whipped him, handcuffed him, duct-taped him to the 

toilet, and hit him with a baseball bat. The men also stole 

$8,162 in cash from him. The men told Lee “we may be wearing 

black, but we are red inside,” which he took to mean that they 

were BHB members. They also told Lee that “the young punk sent 

us.”

C.

Mix and Toliver were also involved in a wide variety of 

drug trafficking activity. Because the instances of such 

conduct involved a large number of witnesses and occasions, we 

summarize the evidence in bullet form.
12

• 2002 - Angel Hines begins buying cocaine from Mix, 

purchasing eighteen ounces from him about every two 

weeks for two years.

• 2002 – Joyce Wright observes Mix with a quarter ounce 

of cocaine and a gun in his car.

• March 2003 – John Doe was supposed to sell Mix seven 

ounces of crack, and Mix wanted to trade for three 

guns. Doe would not accept the deal so Mix paid him

$250 for the seven ounces.

• Spring 2004 – Mix gives John Doe $5,500 to buy half a 

kilo of cocaine.

• January 2006 – Gregory Lee starts buying heroin from 

Toliver and buys an increasing amount from him daily 

until November 2007.

• 2006 – Doe supplies Mix with 2.25 ounces of crack 

twice a week for several months.

• 2006 – Doe supplies Toliver with nine ounces of 

cocaine every two days.

• Mid-2006 – Toliver asks Gregory Lee to purchase 

firearms for him, and Lee sells him twenty firearms 

total.

• November 2006 – Jamal Ruiz starts buying cocaine from 

Toliver and continues to purchase it through August 

2007.

• January 2007 – Toliver buys 3.5 grams of heroin from 

Lahmel Evans and shows him a handgun while doing so.

• Spring 2007 – Toliver gives Doe $75,000 to purchase 

three kilos of cocaine.

• Spring 2007 – Gregory Lee receivs raw heroin from 

Toliver and works to put it in gel caps.

• July 4, 2007 – Skylar Hayward buys marijuana from 

Toliver and sees him in possession of crack.
13

• October 2007 – Gregory Lee buys a quarter ounce of 

crack from Toliver, who carried a gun with him.

D.

In February 2008, Toliver and Mix, along with John Doe, and 

Antonio Fulford, were indicted for the above-described criminal 

activity. On May 7, 2008, the government filed a seventy-six 

count superseding indictment. While Fulford and Doe chose to 

plead guilty, Mix and Toliver proceeded to jury trial, which 

began on August 18, 2008, and continued for eight days. After 

the government had concluded its case-in-chief, it requested a 

dismissal of several counts of the indictment.2 The remaining 

counts were sent to the jury, which deliberated for three days 

before arriving at a verdict. The jury found Toliver guilty of 

all counts for which he was tried. The jury found Mix guilty of 

all of the offenses except as to Counts Four (possession of a 

firearm in furtherance of a violent crime), Five (assault with a 

dangerous weapon in aid of racketeering activity), Six (assault 

with a dangerous weapon in aid of racketeering activity) and 

Seven (possession of a firearm in furtherance of a violent 

crime), which related to the incidents at the VFW dance and the 

Tides Inn. At sentencing, Toliver was sentenced to life plus 

 2 Counts 23, 24, 30-36, 39-42, 44, 49, 50-53, and 55-57 were 

dismissed.
14

2,484 months. Mix was sentenced to life plus 480 months. This 

timely appeal followed.

II.

On appeal, Toliver and Mix raise issues concerning joinder, 

jury selection, photographic evidence of Toliver’s tattoos, and 

sufficiency of the evidence. We address each in turn and find 

all of their arguments unavailing.

A.

Toliver first raises the issue of prejudicial joinder. He 

argues that he was prejudiced by his joint trial with Mix and 

Elizabeth Horne3 because the allegations against the other 

defendants necessarily “spilled over” in the minds of the jury 

considering his guilt and influenced their verdict. 

Additionally, Toliver argues that the sheer volume of the 

evidence, including the murder Mix was charged with, confused 

the jury and prejudiced them against him. We find, however, 

that no specific trial right of Toliver’s was impaired by the 

joinder, and thus the defendants were properly joined.

 3 Horne was tried on several specific counts related to the 

home invasion of Andre Parham, her brother. She was acquitted 

of all charges.
15

1.

The district court’s denial of a motion for severance is 

reviewed for abuse of discretion. United States v. Jones, 356 

F.3d 529, 535 (4th Cir. 2004). This Court will reverse only if 

“the trial court’s decision to deny severance deprives the 

defendants of a fair trial and results in a miscarriage of 

justice.” United States v. Harris, 498 F.3d 278, 291 (4th Cir. 

2007) (citation omitted).

2.

Federal Rule of Criminal Procedure 8 governs joinder of 

defendants in the same action. It provides that “the indictment 

or information may charge 2 or more defendants if they are 

alleged to have participated in the same act or transaction, or 

in the same series of acts or transactions, constituting an 

offense or offenses.” Fed. R. Crim. P. 8(b). Even if properly 

joined in the indictment, the defendants must be tried 

separately when the joinder “appears to prejudice a defendant or 

the government.” Fed. R. Crim. P. 14. Therefore, if a 

defendant moves to sever his trial, he must show the requisite 

prejudice. The Supreme Court has held that to show prejudice as 

a result of joinder, the defendant must show that “there is a 

serious risk that a joint trial would compromise a specific 

trial right of one of the defendants, or prevent the jury from 

making a reliable judgment about guilt or innocence.” Zafiro v. 
16

United States, 506 U.S. 534, 539 (1993) (emphasis added). Thus, 

“a defendant is not entitled to severance merely because 

separate trials would more likely result in acquittal, or 

because the evidence against one defendant is not as strong as 

that against the other.” United States v. Strickland, 245 F.3d 

368, 384 (4th Cir. 2001) (citation and internal quotation marks 

omitted).

3.

This Court has never held that jury confusion requires 

severance of defendants properly joined in an indictment. See

United States v. Mandel, 591 F.2d 1347, 1371 (4th Cir. 1979) 

(“Severance will not be granted when the claim is based on the 

disparity of evidence adduced against individual defendants 

without a strong showing of prejudice.”). Indeed, this Court 

has enforced the Supreme Court’s decision in Zafiro, that the 

defendant must show a specific trial right that would be 

infringed by the joinder, and has found no abuse of discretion 

when the defendant merely pleads jury confusion between 

defendants.

Taking into account how this precedent weighs against his 

claim, Toliver intimates that joinder with Mix would violate 

Bruton v. United States, 391 U.S. 123, 129-31 (1968), which held 

that admission of the confession of a defendant at trial was 

prejudicial error when that confession implicated the 
17

codefendant. However, Bruton and the Sixth Amendment do not 

support such an expansive argument. General concerns about 

prejudice when being tried with another defendant who has 

committed bad acts does not rise to the level of a Bruton

problem when those acts do not implicate the defendant. Here, 

Mix’s connection with the robbery and murder of James Robertson 

did nothing to implicate Toliver because he was not mentioned at 

all in connection with the incident.

Therefore, because we do not find, and Toliver does not 

argue, any specific trial right of his which was impaired by the 

joinder, the district court did not abuse its discretion in 

denying his motion for severance.

B.

Toliver and Mix jointly raise the second issue on appeal 

concerning the dismissal of empanelled jurors. In this case, as 

described more fully below, two African-American female jurors 

were dismissed after the jury had been empanelled because of 

disqualifying conflicts they disclosed after they had been sworn 

in. The defendants argue that the district court erred in 

denying their motion for a mistrial because they were denied the 

use of voir dire by the jurors’ incomplete answers.

Additionally, they argue that striking two jurors at the 

beginning of the trial reinforced the “pervasive ambiance of 

fear” surrounding the trial and prejudiced them. We hold that 
18

the district court properly dismissed the jurors and replaced 

them with substitutes that had been empanelled for that specific 

purpose.

1.

As the defendants contemporaneously objected to the 

dismissal of the two jurors and substitution of the alternates, 

the district court’s decision is reviewed for abuse of 

discretion. United States v. Hayden, 85 F.3d 153, 156-57 (4th 

Cir. 1996). To establish that a new trial is warranted, the 

objecting party must establish first that the substitution was 

in error, and second that prejudice resulted from the 

substitution. United States v. Nelson, 102 F.3d 1344, 1349 (4th 

Cir. 1996). To determine prejudice, we have held that the 

district court should consider three general factors: (1) the 

closeness of the case; (2) the centrality of the issue affected 

by the error; and (3) the steps taken by the district court to 

mitigate that error. United States v. Callanan, 450 F.2d 145, 

151 (4th Cir. 1971).

2.

On the first day of the trial, jury selection began in the 

morning and continued until approximately 2:00 p.m., at which 

time the jury with two alternates was empanelled and sworn in. 

The court then recessed for lunch. One juror, during the lunch 

hour, notified the deputy that she recognized Toliver because 
19

his uncle attended her church and she went to school with his 

father. When questioned by the court, she stated that she had 

not said anything earlier because it did not occur to her that 

it was the same Toliver, and she could not see him. She was 

then dismissed for cause after she indicated that she could not 

be fair because she felt “empathy” for the defendant. The 

dismissed juror was an African-American woman; her replacement 

was a white man.

After the first day of trial was completed and before the 

second day began, the court received a note from another female 

African-American juror. The juror stated that she found out 

from her brother the night before that he was assaulted in New 

York by a gang six years earlier, and she could no longer be 

impartial because remembering the incident brought up strong 

emotions. When questioned, she told the court that she had not 

talked to her family about the case, but her relatives figured 

out which jury she was on, and her brother called her from New 

York and told her about the incident. She also was dismissed 

and replaced with a white male juror.

The defendants moved for a mistrial on the basis of the 

substitution of the jurors for members of another gender and 

race. They also moved for a mistrial on the suspicion of juror 

intimidation given the circumstances. The court found that 
20

there was no intimidation involved and that substitution was 

proper at this stage of the proceedings.

3.

Substitution of jurors at trial is regulated by Federal 

Rule of Criminal Procedure 24(c). It provides that alternate 

jurors are to “replace any jurors who are unable to perform or 

who are disqualified from performing their duties.” Fed. R 

Crim. P. 24(c)(1). A court replacing an empanelled juror with 

an alternate must have both a legally relevant reason and a 

factual basis for doing so. Hayden, 85 F.3d at 157. The court 

must also consider reasonable alternatives available to it 

instead of dismissing the juror and substituting an alternate, 

given the importance attached to keeping the original jury 

together if possible. Nelson, 102 F.3d at 1349.

However, this Court has concluded that the “right to have 

the selected jury render the verdict is not absolute and is 

subject to the inevitable vagaries of the many trial 

participants’ complex lives.” Id. at 1350. Thus, both in 

Hayden and Nelson, we affirmed a district court’s decision to 

dismiss jurors after jeopardy had already attached. In Hayden, 

the court dismissed a juror when a government witness, after he 

testified, alerted the court that he and the juror knew each 

other. Although the jurors had been questioned during voir dire 

about whether they knew any of the witnesses, the juror did not 
21

recognize the witness’s name because he only knew him by a 

nickname. The court dismissed the juror, and the defendant 

objected on the grounds that the juror dismissed was the only 

African-American on the jury. Hayden, 85 F.3d at 156-57. This 

Court held that the dismissal was proper because the juror was 

biased, and the district judge explained the dismissal to the 

jury. Id.

Additionally, in Nelson, the district court dismissed two 

jurors after the trial had begun because they had previously-set 

travel plans during the trial. The district court considered 

other alternatives, such as letting the jurors deliberate for a 

day and then continuing the trial during the period of the 

jurors’ vacations, but concluded that it was most important to 

have the jury deliberate on consecutive days and not to feel 

rushed in their verdict. Nelson, 102 F.3d at 1349. The 

defendant objected and argued that because the two jurors who 

were dismissed were African-American and were replaced with 

white jurors, a heightened standard for replacing jurors should 

be employed. We held, however, that “[i]n the absence of any 

evidence or allegation that the court acted because of race in 

replacing jurors with alternates, we find no basis to conclude 

that the court’s discretion should be exercised differently when 

it is considering for racially neutral reasons the replacement 

of black jurors with white alternates.” Id. at 1350.
22

4.

Despite our precedent in Nelson and Hayden, Toliver and Mix 

argue that this case is distinct because the conflict did not 

arise after the trial had begun, but rather existed before the 

jury was even empanelled. They thus argue that they were denied 

voir dire.

However, the district court certainly had legal cause and a

factual basis for dismissing the jurors as required by our 

precedent. It is without question that an outright statement by 

a juror that he cannot be impartial is a legally relevant reason 

for dismissing him. United States v. Capers, 61 F.3d 1100, 1105 

(4th Cir. 1995). Further, the facts in this case do not support 

a departure from this Court’s precedent which held that the same 

level of scrutiny should be applied, no matter the race of the 

dismissed juror. Indeed, in Hayden, the juror did not 

immediately recognize the name of a witness, so it was only 

after the trial had begun that the conflict was apparent. We 

held that dismissal of the juror and replacement with a white 

alternate was proper when there was a valid basis for removing 

the biased juror. Thus, we believe that Hayden controls the 

outcome of this case.

Additionally, this case is distinguishable from United 

States v. Rucker, 557 F.2d 1046 (4th Cir. 1977), the case relied 

upon by the defendants for their voir dire argument. In that 
23

case, two jurors did not fully answer a question on their jury 

questionnaire as to whether any mental or physical impairment 

would prevent them from serving on the jury. The defendant 

requested that the court question the jurors on their incomplete 

answers, and the judge denied that request. We held that when 

presented with a potential question of whether a venireman is 

fit to serve on the jury, it is reversible error for the 

district court to fail to question the juror, as it denies the

defendant the power of voir dire. Id. at 1047. This case has 

little in common with Rucker, however, because voir dire of the 

jurors here was complete. Indeed, the jurors were already 

qualified in this case and empanelled. Voir dire rights only 

exist in the pre-qualification stage of the trial, and the 

dismissals here demonstrated no bias by the district court. In 

fact the district court had no choice but to dismiss the jurors 

here when they stated that they could no longer be impartial.

Finally, it bears mentioning that while the defendants 

allege that there was a “pervasive ambiance of fear” surrounding 

the trial, there is no evidence in the record as to any 

intimidation in the case.4 Therefore, the district court did not 

 4 The defendants reference a newspaper article concerning 

juror intimidation in the case, but that article is not part of 

the record and the district court made no findings about 

intimidation.
24

abuse its discretion in denying the defendants’ motion for a 

mistrial and properly dismissed the two impartial jurors.

C.

The third issue on appeal is raised by Toliver and concerns 

photographic evidence of his tattoos which was admitted for the 

purpose of showing that he was a member of the BHB. Toliver 

argues that the admission of that evidence violated the Fifth 

and Sixth Amendments. We find each of these arguments without 

merit.

1.

Evidentiary rulings of the district court are reviewed for 

abuse of discretion if the defendant preserves his objection at 

trial. United States v. Basham, 561 F.3d 302, 325 (4th Cir. 

2009). When a district court commits an error of law, it has 

abused its discretion. Id. at 326. If a defendant does not 

make a contemporaneous objection, the admission of such evidence 

will be reviewed for plain error. This Court will only notice 

the error if the defendant can show (1) an error occurred, (2) 

the error was plain, (3) the error affected his substantial 

rights, and (4) the error “seriously affect[s] the fairness, 

integrity, or public reputation of judicial proceedings.” 

United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United 

States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal 

quotation marks omitted).
25

2.

On February 12, 2008, four days after his arrest, Toliver 

was required to allow the police to photograph his numerous 

tattoos. Those photographs were admitted into evidence, not for 

identification purposes, but rather as substantive evidence of 

his affiliation with the BHB. In particular, these photographs 

showed the following tattoos: the capital letters B.H.B. on the 

right side of his neck; the letter B with a five pointed crown 

on it on his right shoulder; the word GARRY burned into his 

flesh to form a scar; the words “known by many, loved by few,

respected by all” on his leg; the word LOVE on his right arm 

with the word LOYALTY on his left; and the word WAR on his right 

hand with the word VIEW on his left.

Each of the photographs was authenticated by the officer 

who took the pictures, State Police Special Agent Smith, a 

member of the drug enforcement unit. The government further 

offered Special Agent Smith as an expert, and he was qualified 

as such, in the area of the symbols, colors, customs, and 

protocols of the BHB. After the picture of each tattoo was 

authenticated by Special Agent Smith, the government asked him 

what meaning the tattoo had for the BHB. Special Agent Smith 

responded, for example, that the LOVE and LOYALTY tattoos on 

Toliver’s arms were two of the five prongs of the BHB creed, and 

the five pointed crown over the B stood for the five-pointed 
26

star that was the symbol of the Bloods. Special Agent Smith’s 

analysis of the meaning of each tattoo was based on his 

specialized training on the BHB gang.

3.

Toliver’s first argument concerning the photographs of his 

tattoos is that compelling him to be photographed violated his 

Fifth Amendment privilege against self-incrimination. We, 

however, find that Toliver’s tattoos are a physical trait, 

similar to his voice or handwriting, and therefore do not 

constitute testimony within the meaning of the Fifth Amendment.

The Fifth Amendment provides that no person “shall be 

compelled in any criminal case to be a witness against himself.” 

U.S. Const. amend. V. In general, the Fifth Amendment protects 

the accused from compelled verbal statements, but can also apply 

to compelled physical acts which constitute communications. It 

is well settled, however, that the protections of the Fifth 

Amendment do not apply to physical characteristics such as the 

giving of a blood sample, voice sample, or handwriting exemplar. 

Pennsylvania v. Muniz, 496 U.S. 582, 595-98 (1990); United 

States v. Dionisio, 410 U.S. 1, 7 (1973); Gilbert v. California, 

388 U.S. 263, 266-67 (1967). The key distinction as to whether 

the Fifth Amendment applies is whether the incriminating 

communications, verbal or physical, are testimonial in nature. 

United States v. Hubbell, 530 U.S. 27, 34 (2000).
27

Toliver likens this case to the situation in Hubbell where 

the Supreme Court held that the mere act of producing documents, 

in some cases, may be incriminating. Id. at 36. In that case, 

the production itself communicated a “statement[] of fact”; it 

proved that the documents existed, were authentic, and were in 

the custody of the producer. Id. at 36 (citation and internal 

quotation marks omitted). There, the Supreme Court held that 

the physical production was a violation of the Fifth Amendment 

because the preparation of the produced documents was the only 

means through which the government obtained the evidence which 

led to the indictment. Id. at 42-43.

This case, however, is more akin to the physical trait 

cases. Tattoos which are openly visible on the body are 

physical traits, as are voice, appearance, and handwriting. See

United States v. Bay, 762 F.2d 1314, 1315-16 (9th Cir. 1984) 

(holding that a defendant need not take the stand to be able to 

show the jury the tattoos on his hands which were an openly 

visible physical characteristic). Cf. United States v. 

Williams, 461 F.3d 441, 446-47 (4th Cir. 2006) (holding that a 

demonstration by the defendant that he could not physically wear 

the fanny pack as alleged by the police is not testimonial 

evidence). Here, except for the GARRY scar tattoo, the location 

of which is unknown, it is clear that all of Toliver’s tattoos 

were openly visible on his body. Indeed, most of them, 
28

including BHB on his neck, WAR and VIEW on his hands, the slogan 

on his leg, and LOVE and LOYALTY on his arms, were easily 

visible when he was wearing a tee-shirt. Only the B with the 

five point crown would have been covered up, and it would become 

easily visible were he to wear a tank top or take off his shirt. 

Thus, though the tattoos incriminated him because he had branded 

BHB slogans and symbols all over his body, they were an open 

physical characteristic outside the protections of the Fifth 

Amendment. Unlike in Hubbell, here the act of production was 

nothing more than merely allowing a cursory examination of 

Toliver’s body as opposed to painstakingly combing through 

records in order to deliver the government its case.

Therefore, we find no merit to Toliver’s Fifth Amendment 

challenge.

4.

Toliver’s second argument concerning his tattoos is that 

Special Agent Smith’s testimony violated the Confrontation 

Clause of the Sixth Amendment. He contends that Special Agent 

Smith based his expert opinion on testimonial statements by 

other gang members, thus importing those testimonial statements 

into the trial without giving him the opportunity to crossexamine the declarants. However, our precedent mandates the 

conclusion that Special Agent Smith’s testimony was not a 

violation of the Sixth Amendment.
29

The question of when expert testimony violates the 

Confrontation Clause is well-settled in the Fourth Circuit. As 

we recently stated: “An expert witness’s reliance on evidence 

that Crawford would bar if offered directly only becomes a 

problem where the witness is used as little more than a conduit 

or transmitter for testimonial hearsay, rather than as a true 

expert whose considered opinion sheds light on some specialized 

factual situation.” United States v. Johnson, 587 F.3d 625, 635 

(4th Cir. 2009). If, on the other hand, the expert is “applying 

his training and experience to the sources before him and 

reaching an independent judgment, there will typically be no 

Crawford problem. The expert’s opinion will be an original 

product that can be tested through cross-examination.” Id. In 

Johnson, this Court held that when experts testified as to the 

meaning behind intercepted phone calls concerning the sale of 

narcotics, their testimony did not violate the Confrontation 

Clause because the experts used their own considered judgments 

along with their training and information from informants. Id.

at 636.

Here, although Toliver alleges that Special Agent Smith 

relied on testimonial statements by gang members, there is no 

such evidence in the record. Rather, the only evidence is that 

Special Agent Smith relied on his formal training to interpret 

the tattoos. Furthermore, even if he had relied on such 
30

testimonial statements, Special Agent Smith’s testimony was 

certainly more than a parroting of the statements of others. 

Instead, he considered the tattoos on Toliver’s body and offered 

his independent opinion as to what each meant. Thus, his 

testimony poses no problem under the Confrontation Clause.

5.

Toliver’s final argument concerning the admission of the 

testimony and photos of his tattoos is that they violated both 

Federal Rule of Evidence 404(b) and the Due Process Clause of 

the Constitution because they constituted character evidence. 

He argues that because the photographs were not introduced for 

identification purposes, they necessarily had the purpose of 

convincing the jury that Toliver was a bad person, predisposed 

to participating in the crimes alleged.5 We find no violation of 

the Due Process Clause because evidence of the tattoos was 

properly admitted as evidence of his participation in the BHB, 

an element of the crime with which he was charged.

Rule 404 provides that “evidence of a person’s character or 

trait of character is not admissible for the purpose of proving 

action in conformity therewith on a particular occasion.” Fed. 

 5 Toliver also argues that the tattoos were used as improper 

impeachment evidence, but that argument certainly must fail 

because the evidence was introduced during the prosecution’s 

case-in-chief, and he never testified.
31

R. Evid. 404(a). That same evidence may, however, be used for 

purposes other than showing the defendant’s character, such as 

motive, intent, or identification, so long as the probative 

value of the evidence is not substantially outweighed by the 

danger of unfair prejudice to the defendant. Fed. R. Evid. 

404(b); Fed. R. Evid. 403.

Toliver was charged under the RICO statute, and thus the 

government was required to prove that he was “employed by or 

associated with any enterprise” affecting its purpose through 

racketeering activity. 18 U.S.C. § 1962(c) (2006) (emphasis 

added). The Supreme Court has held that an “enterprise” under 

the statute includes “a group of persons associated together for 

a common purpose of engaging in a course of conduct.” United 

States v. Turkette, 452 U.S. 576, 583 (1981); see also Boyle v. 

United States, 129 S. Ct. 2237, 2245-46 (2009) (holding that an

enterprise under RICO need not have a business-like structure 

and can have a rather informal organization). For an individual 

to be convicted of a RICO offense, therefore, the government 

must prove both that an enterprise exists and that the defendant 

participated in the enterprise through racketeering activity.

The enterprise alleged in this case was the BHB, a criminal 

gang dedicated to the sale of narcotics and pecuniary gain 

through robberies and home invasions. The evidence offered by 

the government regarding how individuals were inducted into the 
32

gang, its hierarchical structure, and the type of racketeering 

activity engaged in by its members was offered as proof of the 

existence of the enterprise. Thus, the government was required 

to prove that Toliver participated in the BHB and its 

racketeering activities. Given that the government was required 

to show Toliver’s membership in the BHB as one of the elements 

of the substantive crime, the presence of the gang tattoos all 

over his body tended to show Toliver was a member, and the 

evidence was properly admitted to show that membership.

Additionally, this Court has held that “the Rule 404(b) 

inquiry applies only to evidence of other acts that are 

‘extrinsic to the one charged.’” Basham, 561 F.3d 302, 326 (4th 

Cir. 2009) (quoting United States v. Chin, 83 F.3d 83, 87 (4th 

Cir. 1996)). “Evidence of uncharged conduct is not ‘other 

crimes’ evidence subject to Rule 404 if the uncharged conduct 

‘arose out of the same series of transactions as the charged 

offense, or if [evidence of the uncharged conduct] is necessary 

to complete the story of the crime on trial.’” United States v. 

Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (quoting United States 

v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)). Therefore, even 

if Toliver’s tattoos were considered evidence “extrinsic” to the 

charged crime of RICO, the photos would be admissible because 

the fact that Toliver had branded himself with BHB symbols 
33

arises out of the same series of transactions, namely 

participation in a criminal enterprise, the BHB.

Thus, each of Toliver’s challenges to the photographs and 

testimony concerning his tattoos must fail.

D.

The final issue raised by Mix and Toliver on appeal 

concerns sufficiency of the evidence. They both challenge their 

various drug and gun convictions, and Mix individually 

challenges his convictions for assault with a deadly weapon in 

aid of racketeering and accessory after the fact. We find that 

there was sufficient evidence such that a reasonable jury could 

have found all of the essential elements of the crimes charged, 

and affirm their convictions.

1.

In reviewing the evidence for sufficiency, this Court must 

view the evidence in the light most favorable to the government, 

drawing all inferences in the government’s favor, and must 

affirm the verdict if any rational trier of fact could have 

found the essential elements of the crime charged beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 

(1979); United States v. Stewart, 256 F.3d 231, 249 (4th Cir. 

2001) (“In evaluating the sufficiency of the evidence, the jury 

verdict must be upheld if there exists substantial evidence, 

including circumstantial and direct evidence, to support the 
34

verdict, viewing the evidence in the light most favorable to the 

government.”).

2.

Toliver and Mix jointly raise a sufficiency of the evidence 

challenge to their various drug and gun convictions. Their main 

contention is that given the complete lack of any physical 

evidence tying them to the crimes, in that no drugs or guns were 

introduced into evidence, it would be unconstitutional to uphold 

their sentences. However, the testimony at trial supports their 

convictions, and we affirm.6

Given the deference shown to the jury’s verdict upon 

appeal, we have held that the uncorroborated testimony of a 

single witness may be sufficient to uphold the conviction, even 

if that witness has credibility problems. United States v. 

Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that the 

uncorroborated testimony of an informant may be sufficient to 

sustain a conviction); United States v. Baker, 985 F.2d 1248, 

1255 (4th Cir. 1993) (uncorroborated testimony of an accomplice 

 6 We are mindful of the defendants’ argument that “Toliver 

and Mix were sentenced to the equivalent of several life terms 

based on the vague and unreliable testimony . . . [of] snitches 

and convicted felons seeking to feather their nest[s] for 

sentencing reductions or to stay out of jail entirely due to 

immunity agreements,” yet we decline to reverse a jury verdict 

which is in fact supported by the testimony at trial. Pet’r Br. 

at 57.
35

sufficient to support conviction). Furthermore, we are not to 

reweigh the credibility of witnesses upon appeal and are to 

assume that the jury found witnesses credible. United States v. 

Reavis, 48 F.3d 763, 771 (4th Cir. 1995). Thus, we inquire 

whether a reasonable jury, given the testimony before it, could 

have found the defendant guilty of the charge.

What the defendants charge is true: the evidence presented 

by the government was composed of testimony by coconspirators 

who testified as to general dates on which the firearm and drug 

offenses occurred. Additionally, it is true that much of the 

testimony about the gun and drug offenses had no corroboration, 

either from other witnesses or from physical evidence. However, 

in reviewing the charges on which the defendants were convicted, 

there was testimony at trial which corresponded to each of the 

convictions.7 Thus, the jury could have reasonably found that 

the defendants committed the drug offenses with which they were 

charged.

 7 The defense offered the incarceration records of Toliver 

in order to establish that he could not have been dealing drugs 

at the time stated by the witness because he was incarcerated 

then. Yet, the jury need not have found specific dates on which 

the offenses occurred, and we will not disturb its verdict if it 

could have rationally found the defendants committed the 

offenses.
36

3.

Mix then individually argues that his conviction for 

assault with a deadly weapon in aid of racketeering should be

reversed because the jury found him not guilty of possession of 

a firearm in furtherance of a violent crime in relation to the 

same offense. His challenge to this conviction is unavailing 

for two reasons. First and foremost, the Supreme Court has held 

that defendants may not challenge verdicts which appear to be 

inconsistent on the basis that the verdict was in error. United 

States v. Powell, 469 U.S. 57, 66 (1984). Secondly, there is 

not necessarily anything inherently contradictory about the

verdicts, as Mix was charged with aiding and abetting on the 

count for which he was convicted and there is no requirement 

that the principal be convicted in order for the aider and 

abetter to be convicted. United States v. Horton, 921 F.2d 540, 

543-44 (4th Cir. 1990). Thus, the jury rationally could have 

found that Mix aided and abetted in the assault with a deadly 

weapon in furtherance of racketeering without having possessed 

or aided in the possession of any firearm.

4.

Mix finally argues that his conviction for accessory after 

the fact related to the murder of James Robertson is not 

supported by sufficient evidence because of perceived 

inconsistencies in the testimony concerning the incident. 
37

However, viewing the evidence in the light most favorable to the 

government, there was certainly sufficient evidence to find that 

Mix aided in helping the killer, Curtis Newby, leave Virginia 

and hide out in New York. John Doe testified that Mix told him 

that he was taking Newby up to New York to hide out with Cody in 

Mount Vernon. Further, the jury heard testimony that, at the 

time of trial, Newby had just been extradited from New York to 

Virginia. A rational jury thereby could have found that Mix was 

an accessory after the fact to the murder.

III.

For the reasons detailed above, both Mix’s and Toliver’s 

convictions are

AFFIRMED.