**UN PUBLISHED** 
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. 0**  **8 -**  **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.

Appeal s 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 , 20192 Before GREGORY, AGEE , and DAVIS , Circuit Judges.

Affirmed by un published per curiam opinio n .

**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 T HE 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Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM: Gary Toliver (“Toliver”) and Mikal Mix (“Mix”) appeal their convictions for racketeering and various violent crime, gun, and drug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 activit y by the Bounty Hunter Bloo ds (“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 inv olving the defendants.
A . T he 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 neighbo rhoods 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. Toli ver, 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 ref erred to as “ John Doe ”

or “ Doe , ” was the lea der of the BHB overall, an d 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 stan ds in the middle of five BH B members in a five

- pointe d 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 intercou rse with five members of t he gang. John Doe estimated that at the time he was arrested along with Mix and Toliver, the BHB had5 between 300 and 400 members, mostly teenagers but with some members as young as nine. Member s of the gang from all chapters woul d meet every two to thr ee 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 woul d be enco uraged 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 sal es of narcotics. Additiona lly, members were expec ted 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 g ang membe rs. If a YG or little homi e refused to put in wor k, 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 themselv es. For example, members avoid usin g 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 .” Addit ionally, members are requir ed to learn6 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 serv ed to mak e sure that someone was not “false flagging” and p retending 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 k iller, 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 pu blic.
B. In addition to being part o f the overall command s tructure 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 VF W in Ocean View. Many memb ers of the BHB and Crip s 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 B HB called Mix and told him to bring guns to the VFW. Mix t hen7 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, requirin g 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 g reeted th em. The women, unbeknownst to the sailors, were m embers 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, Gladde n and Ote ng were confronted by three men carrying guns outs ide 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 offere d 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 t hat night testified that Mix fired t he 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 T oliver to get Porter and bring him t o
Doe ’s house in C oleman 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 spr eading. Ultimately, Doe let
Porter go. 4.
In s prin g 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 dep arting. 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, Mi nter’s co usin, were all spending tim e together i n9 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 16t h Bay in Norfolk where the girls had indicated t hey would be. When Robertson, Minter, and Ashe pulled into the parking lot, they saw s even girls as well as one

man. After Robertson, Minter, and Ashe exited the car, and began speaking with the group, ten m en ran ou t from an alley and
approac hed them hol ding 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 “ poli ce ” to ge t the attackers to scatter. Ashe and M inter 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

a cute brain injury due to bl unt force tr auma 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, th ey arrested six suspects, a ll members o f 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. S kylar Hay ward, a member of the BHB a nd one of th e 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 t old 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 Toliv er and

se veral other BHB members to Club R eign 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 escalat ed, e nding 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 leave11 the scene of the shooting, all of the BHB members jumped in their car with Toliv er drivin g. Responding to reports t hat 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 e xit ramp.
7. In October 2007, Gregor y 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 hear d pounding on his door and someo ne 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 w earing 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 obse rves 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 2 004

– 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 wit h 2.25 ou nces of crack twice a we ek 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

– Ja mal Ruiz starts buying cocaine f rom 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 th ree kilos of cocaine.

• Sp ring 2 007

– 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 oun ce of cra ck from Toliver, who c arrie d 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 supers eding ind ictment. While Ful ford 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 severa l counts of the indictment. 2 The re maining 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 (p ossession 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 f irearm in furtherance of a violent

c rime), which related to the incidents at the VFW dance and the Tides Inn. At sentencing, Toliver was sentenced to life plus

2 Count s 23, 24, 30

- 36, 39

- 42, 44, 49, 50

- 5 3, 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 ra ise issue s 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 prejudic ial joinder. He

a rgues tha t he was prejudiced by his joint trial with Mix and Elizabeth Horne 3 because the allegations against the other defendants necessarily “spilled over” in the minds of the jury considering his guilt and influenced their ver dict. Ad ditionally, Tolive r 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 joinde r, and th us the defendants were prop erly 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 d ecision t o deny severance d eprives t he 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 defendant s in the same action. It p rovides t hat “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 offens es.” Fed . R. Crim. P. 8(b) . Even i f 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 tria l, he mus t show the requisi te prejud ice. 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, o r prevent the jury from mak ing a rel iable 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 a cquittal, or because the ev idence ag ainst 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 con fusion re quires

severance o f defenda nts 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 defe ndants wi thout a strong sho wing of p rejudice.”). 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 defen dant merely pleads jury con fusion 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 admi ssion of the confession of a defenda nt at trial was prejudicial error when that confession implicated the17 codefendant. However, Bruton and the Sixth Amendment do not support such an expansive argument. General concerns about prejudice when being tried wi th anothe r defendant who ha s committ ed 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 h e was not mentioned at all in connec tion 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 mot ion for s everance.
B. Toliv er and Mi x 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 c onflicts 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. Ad ditionall y, 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 that18 the district court properly dismissed the jurors and replaced them with subst itutes th at had been empane lled 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 Sta tes v. Ha yden , 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.3 d 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 th e distric t court to mitigat e that er ror. 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 alter nates was empanelled and sw orn in. The court then recessed for lunch. One juror, during the lunch hour, notified the deputy that she recognized Toliver because19 his uncle attended her church and she went to school with his father. When questioned by the court, sh e stated that she had
not s aid 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” fo r the def endant. The dismi ssed juro r 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 jur or stated that she found ou t from he r 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 c ourt that she had not talke d 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 defe ndants mo ved for a mistrial on the b asis 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 that20 there was no intimidati on involv ed and that substi tution wa s 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 perf orm or wh o are disqualified from per forming 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

mu st also c onsider reasonable alternat ives 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 conc luded tha t the “right to ha ve the se lected 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 deci sion to d ismiss jurors afte r jeopard y 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 abo ut whether they kn ew any of the witnesses, the juror did not21 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 Afric an - Americ an on the jury. H ayden , 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 jur ors after the trial had beg un becaus e 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’ v acations, but concluded tha t 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 Af rican

- Ame rican and were rep laced wit h 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 alterna tes, we f ind no basis to co nclude th at 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 H ayden , To liver and Mix
argu e that th is 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 cert ainly 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. C apers , 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 immediate ly recogn ize 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 a rgument. In that23 case, two jurors d id 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 incomple te answers, and th e judge d enied 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 defendan t the power of voi r 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 i n the pre

- qualification sta ge 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 be ars menti oning that while t he defend ants 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 conce rning jur or 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 deny ing the d efendants’ motion for a mis trial 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 membe r of the BHB. Toliver
argu es that t he 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 pr eserves h is objection at
tr ial. Uni ted 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 r eviewed f or 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 f airness, integrity, or publ ic reputa tion 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 arres t, Toliver
was req uired 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 , th ese photo graphs 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, love d by few, respected by all” on his l eg; 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, Sta te Police Special Agent Smi th, a

mem ber 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 t attoo was authenti cated 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 B HB creed, and the five poin ted crown over the B stood for the five

- pointed26 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 argum ent conce rning the photogra phs of hi s 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 there fore do not consti tute test imony 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 Amendm ent prote cts the accused fr om compel led 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 suc h as the giving of a blood sample, v oice 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 w hether th e Fifth Amendment applies i s 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 h eld that the mere act of pr oducing d ocuments, 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 p roducer. Id. at 36 (citati on and in ternal 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 g overnment obtained the evid ence whic h 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 Uni ted State s v. Bay , 762 F.2d 1314, 13 15

- 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 ) (holdin g 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, i t is clea r that all of Toli ver’s tat toos 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

- sh irt. Onl y the B with the f ive 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 h is 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 comb ing throu gh records in orde r to deli ver 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 Clau se of the Sixth Amendment. He conte nds 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 cross

examine the de clarants. However, our pre cedent ma ndates 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 expe rt witnes s’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 who se consid ered 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 in dependent judgment, there w ill typic ally 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 interce pted phon e 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 Toliv er allege s that Special Age nt 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 ha d relied on such30 t estimonia l 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 mea nt. Thus , his testimony po ses no pr oblem 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 Co nstitution because they con stituted 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 participa ting 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 th at “evide nce 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 bec ause the eviden ce was intro duced 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 showi ng the de fendant’s characte r, such a s 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 wa s charged under the RICO st atute, an d 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 Cour t has hel d that an “enterpr ise” unde r 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. 2 237, 2245

- 46 (2009) (holdin g 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 enterpr ise exist s and that the def endant
pa rticipated 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. Th e evidenc e offered by the g overnment regarding how individuals were inducted into the32 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 gove rnment wa s required to prov e that To liver 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 tat toos all over his body tend ed to sho w 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 on e 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 cond uct is not ‘other crimes’ evidence subject to Rule 404 if the uncharged conduct ‘arose out of the same seri es of tra nsactions as the c harged of fense, 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)). Therefo re, 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 symbols33 arises out of the same series of t ransactio ns, namely partici pation 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 ev idence. They both challeng e their

v arious 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 reason able jury could ha ve 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 al l inferen ces in the governm ent’s fav or, 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. Stewa rt , 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 the34 verdict, viewing the evidence in the l ight most favorable to the
governmen t.”). 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, i n that no drugs or guns wer e 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 unc orroborat ed 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 t estimony of an informant ma y be suff icient 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 unrel iable tes timony .

. . [o f] 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 test imony at trial. Pet’r B r. at 57.35 sufficient to support conviction). Furthermore, we are not to reweigh the credibili ty of wit nesses 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 gui lty of th e charge. What the defendan ts 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 m uch of th e testimony about the gun a nd 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 t he 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 fo und speci fic dates on wh ich the offe nses 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 h as held
t hat defendants may not chal lenge 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 charg ed with a iding 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 (4 th Cir. 1 990). Thus, the j ury ratio nally 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 conv iction fo r 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 t o the
gov ernment, there was certainl y 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 Co dy in
Mou nt Vernon. Fur ther, the ju ry 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 re asons det ailed above, bo th Mix’s and Toliver’s convictions are
AFFIRMED .