UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONEARL B. SMITH, Defendant - Appellant, No. 10-3231 (D. Kan.) (D.C. No. 6:07-CR-10142-JTM-4 )

ORDER AND JUDGMENT *

Before HARTZ , O'BRIEN , and MATHESON , Circuit Judge.

Jonearl Smith was convicted by a jury of conspiring to engage in a racketeer influenced and corrupt organization (RICO) enterprise in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841 and 846. He seeks reversal of both conv ictions based on insufficiency of the evidence, erroneous jury instructions, and juror misconduct. We affirm.

* This order and judgment is an unpub lished decision, not bi nding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### February 2, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - I. FACTUAL BACKGROUND We provide only a brief background of the fa cts here; other pertinent facts will be set forth in the discussion of the issues. Smith is a member of the Crips street gang in Wichita, Kansas. The Crips gang consists of several sets including the “Neigh borhood Crips,” the “Insane Crips,” and the “Tre Five Seven Crips.” The Neighborhood Crips have further subsets—the “Rolling 60’s”, the “Deuce Trey Crips” and the “Grove Block Crips.” The Grove Block Crips are further divided into the “19s” and “17s,” whic h refer to streets in Wichita. Smith is a member of the Neighborhood Crips, Grove Block, 19s. There is no single leader of all the Crip s in Wichita. However, each set of Crips has its own leaders. A leader is called an “OG,” meaning “Original Gangster.” (R. Vol. 2, Part 4 at 1043.) An OG is either a foun der of the gang or someone who has earned the respect of fellow gang members. To join the Crips, an indi vidual is either “jumped in” (physically beaten by other Crip s members) or “blessed in” (no b eating) if he is a relative or close friend of another gang memb er. (R. Vol. 2, Part 3 at 712.) Crips members are required to “put in work” which means they are required to engage in various acts of reta liation (including fist fights and drive-by shootings) against rival gangs. (R. Vol. 2, Part 3 at 733.) Th ey frequently carry guns and engage in other criminal behavior such as drug dealing an d robberies. Smith has been found in possession of a gun on a number of occasions and robbed a re tail store during which he shot an employee. He also was involved in drug dealing (which we will set forth in more detail in Section III(B)).- 3 - Crips have certain unwritten rules. Ch ief among them is not to snitch on other Crips members and to represent and defend th e gang. Crips are also not to steal from other Crips or associate with rival gang memb ers. The Crips hold “court in the streets.” (R. Vol. 2, Part 4 at 1090.) If a member violat es the rules, he is subject to a “violation.” (R. Vol. 2, Part 3 at 739.) A “violation” usually involves being physically beaten by other Crips members but in some circumstan ces may involve being kicked out of the
gang. Crips hold meetings called “Cripnics” or “C ripcues.” (R. Vol. 2, Part 5 at 1234, Part 9 at 2132.) Initially, they met at various residences; eventually they began meeting at local parks. At these meetings, Crip s initiate new members into the gang, impose “violations” on certain members and discuss rival gangs. Crips have unique hand signs and handshak es. They also frequently wear blue clothing to represen t their memb ership. II. PROCEDURAL BACKGROUND Smith, along with nineteen co-defendant s, was charged in a 34-count Fifth Superseding Indictment. Smith was named in four counts: (1) participating in a RICO enterprise in violation of 18 U.S.C. § 1962(c) (Count 1); (2) conspiracy to participate in a RICO enterprise in violation of 18 U.S.C. § 1962(d) (Count 2); (3) conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841 and 846 (Count 28); and (4) conspiracy to distribute marijuana in viol ation of 21 U.S.C. §§ 841 and 846 (Count 29). Smith proceeded to trial with five co-defendants. After a lengthy trial, where the- 4 - government called over 100 w itnesses, the jury found hi m guilty on Counts 2 and 28 (RICO conspiracy and conspiracy to distri bute crack cocaine), acquitted him on Count 29 (conspiracy to distribute marijuana), and deadlocked on Count 1 (RICO substantive violation). The district cour t denied Smith’s post-trial mo tion for judgment of acquittal or in the alternative for a new trial. Smith was sentenced to 77 months imprisonment. III. DISCUSSION Smith raises six claims which we distill to five: Whether (1) the government was required to demonstrate the existence of an enterprise in order to convict Smith of conspiracy to participate in a RICO ente rprise under 18 U.S.C. § 1962(d); (2) the government presented sufficien t evidence to support Smith’s conviction for conspiracy to distribute 50 grams or more of crack cocaine ; (3) Smith’s requested jury instructions should have been given; (4) an evidentiary hearing was required regarding alleged juror misconduct; and (5) Smith’s convic tion of conspiracy to partic ipate in a RICO enterprise should have been v acated after his convictions for th e predicate acts supporting that conviction were set aside in a separate case.
A. Existence of an Enterprise The court instructed the jury (Instruction No. 32) that in order to find Smith guilty of conspiracy to participate in a RICO enterprise, the government must prove, inter alia , that “[a] conspiracy or agreement . . . existed between two or more persons to participate in the affairs of an enterprise that affected interstate commerce through a pattern of racketeering activity.” (R. Vol. 1 at 206 (empha sis added).) The jury was also told that the term “enterprise” had the same meaning as that used in C ount 1—the substantive- 5 - RICO charge—which defined “enterprise” as, inter alia , a “group of pe ople [who] have (1) a common purpose; and (2) an ongoing orga nization, either formal or informal; and (3) personnel who function as a continuing un it.” (R. Vol. 1 at 172.) However, the jury was also instructed that “the conspiracy a lleged in Count 2 is a different charge [than Count 1]” with “important distin ctions.” (R. Vol. 1 at 206.) Relevant here, the jury was told that unlike Count 1, “the government ne ed not prove . . . the alleged enterprise was actually established” for purposes of Coun t 2. (R. Vol. 1 at 206-07.) Rather, [t]he essential nature of Count 2 is th e conspiratorial agreement; the ultimate success or failure of the conspiracy is irre levant. An offense is established if the government proves that, if the conspir acy [was] completed as contemplated and the enterprise established, that: 1) the defendant would be employed by or associated with the enterpri se; and 2) that the enterprise affected interstate or foreign commerce. (R. Vol. 1 at 207.) Smith did no t object to this instruction. During deliberations, the jury sent the following ques tion to the court: Does the enterprise in coun t 1 have to be established before we can come to a verdict on count 2? For example [Instru ction 32] says the government need not prove the alleged enterprise was actua lly established yet the 1st element [of Instruction 32] says “to participate in th e affairs of an enterprise” & the term[] “enterprise” ha[s] the same mean ing as th[at] in Count 1. (Supp. R. Vol. 1, Part 2 at 300.) The court discussed the appropriate response with the parties. It initially proposed responding as follows: No, your decision on Count 1 does not contro l your decision on Count 2. It is possible to find the defendant not guilty on Co unt 1, but guilty on Count 2, or guilty on Count 1 but not guilty on Coun t 2. Of course you may also find the defendant not guilty or guilty on both of thos e counts as well. Count 1 focusses on the actual existence of an enterprise as reflected in at least- 6 - two prior criminal predicat e acts, while Count 2 focusses on the intent of two or more persons to accomplish su ch an enterprise regardle ss of whether the predicate acts occurred. You must read this an swer in conjunction with all of the instructions I have given you. (R. Vol. 3 at 76-77.) Smith objected to the pr oposed response, stati ng the jury should be directed to refer to the origin al jury instructions because they “contain the answer” and the court’s proposed response places “undue em phasis [on] instructions that are already in the Court’s original instructions.” ( Id. at 80-81.) The court then asked Smith: “[The proposed answer] may be unacceptable but [is it ] wrong? . . . Is there a misstatement of law in [the proposed answer]?” ( Id. at 81.) Smith replied: “Not to my knowledge . . . .” ( Id. ) In response to Smith’s objection as well as to those of his co-defendants, the court modified its response, retaining the first para graph but eliminating the second paragraph. It also referred the jury to Instructions 23-28 and 32-33 (the instructions regarding Counts 1 and 2) and instructed the jury to “read th is answer in conjunction with all of the instructions I have given you.” (R. Supp. Vo l. 1, Part 2 at 301.) Smith unsuccessfully renewed his objection to the m odified response. The jury did not reach a verdict on the substantive RICO charge but found Smith guilty of RICO conspiracy. Smith filed a post-trial motion for judgment of acquittal or in the alternative for a new trial. For the first time, he argued he could not be convicted of conspiracy to participate in a RICO enterpri se (Count 2) without a jury finding that an enterprise existed. Therefore, he contended Instru ction 32 which informed the jury that the government need not prove the alleged enterpri se was actually established was erroneous.- 7 - Moreover, he claimed the jury’s question regarding whether it needed to find the existence of an enterprise in order to convict on Count 2, co upled with the fact the jury did not reach a verdict on Coun t 1 (which explicitly required the government to show the existence of an enterprise), demonstrated the jury did not find the existence of an enterprise beyond a reasonable doubt. Cons equently, he said th ere was insufficient evidence to support the ju ry’s verdict on Count 2. The district court denied the motion. It refused to speculate whether the reason the jury did not reach a verdict on Count 1 was due to it being unab le to find the existence of an enterprise. In any event, it conclude d Instruction 32 was not erroneous because a defendant can be convicted of conspiracy without being convicted of the underlying substantive offense. Moreover, it determined there was sufficient evidence at trial to support the jury’s findi ng of an enterprise.
1. Standard of Review Smith repeats his arguments here—which essentially boil down to claiming the government must prove the existence of an ente rprise in order to convict a defendant of a RICO conspiracy under 18 U.S.C. § 1962(d). The government cont ends Smith is not entitled to review of this issue because he invited the error below by not objecting to Instruction 32 or lodging a legal objection to the court’s respons e to the jury’s question. Indeed, in objecting to the cour t’s proposed response to the ju ry’s question, Smith stated the court should refer the jury to the original jury instructions, including Instruction 32, which informed the jury it need not find the existence of an actual enterprise in order to convict on Count 2. Even a ssuming we reach the merits of the issue, the government- 8 - says our review should be for plain error based on Smith’s failure to object. We disagree with the government that Sm ith is not entitled to review of this issue because he invited the error below. We distinguish between wa iver and forfeiture. “[W]aiver is the intentional relinquishm ent or abandonment of a known right,” United States v. Olano , 507 U.S. 725, 733 (1993) (quotati ons omitted); it occurs when a party “deliberately considered the unraised issue and made an intentional decision to forego it.” United States v. Zubia-Torres , 550 F.3d 1202, 1206 (10th Cir. 2008) (emphasis added). Forfeiture, on the other hand, “is the failure to make the timely assertion of a right.” Olano , 507 U.S. at 733. In other words, “wai ver is accomplished by intent, but forfeiture comes about through neglect.” Zubia-Torres , 550 F.3d at 1205 (quotations omitted). One who has waived a right is not entitled to appellate review whereas one who has forfeited a right obtains plain error review. United States v. Cruz-Rodriguez , 570 F.3d 1179, 1183 (10th Cir. 2009). The invited error doctrine is a form of waiver. ClearOne Commc’ns, Inc. v.
Bowers , 643 F.3d 735, 771 (1 0th Cir. 2011). It “precludes a party from arguing that the district court erred in adopting a proposition th at the party had urged the district court to adopt.” Id. (quotations omitted); see also United States v. Edward J. , 224 F.3d 1216, 1222 (10th Cir. 2000) (“The inv ited error doctrine prevents a party from inducing action by a court and later seeking reversal on the gr ound that the request ed action was error.”) (quotations omitted). It prohibits a party “ from lying in wait for potential mistakes, and then seeking to reverse the outcome of trial.” United States v. Oldbear , 568 F.3d 814, 826 (10th Cir. 2009).- 9 - Smith did not object to Inst ruction 32. Nor did he propose that instruction to the court. Therefore, his failure to object c onstitutes a forfeiture, not an invited error. Smith’s handling of the jury’s question is a closer issue. The jury’s question suggested it was confused as to whether Count 2 required pr oof of an enterprise to convict. And, in objecting to the court’s proposed response, Smith told the court it should simply refer the jury to the original instruc tions. Those instructions incl uded Instruction 32, which told the jury the government was not required to prov e the actual existence of an enterprise in order to convict on Count 2. Moreover, th e court’s initial propos ed response included a statement setting forth the differen ce between Count 1 and Count 2, i.e. , Count 1 requires the existence of an actual enterprise whereas Count 2 simply requires the intent of two or more persons to accomplish such an enterprise. And Smith stat ed this proposed response did not “to [his] knowledge” misstat e the law. (R. Vol. 3 at 81.) Nevertheless, taken in context, these actions do not amount to invited error. Smith did not affirmatively urge the court to inform the jury that an enterprise need not be established in or der to convict on Count 2. Rather, his position was simply that the court should refer the jury to the orig inal instructions so as not to place undue emphasis on certain instructions to the exclus ion of others. While his actions teeter on the edge, they ultimately fall on the side of ne glect, rather than intent. His failure to properly object to the jury’s question is a forfeiture, rather than an invited error. Our review is for plain error. Under the plain error test, Smith “mus t demonstrate the district court (1) committed error, (2) the error wa s plain, and (3) the plain e rror affected his substantial- 10 - rights. If these factors are met, we may exer cise discretion to correct the error if (4) it seriously affects the fairness, integrity, or pu blic reputation of judi cial proceedings.” United States v. Cordery , 656 F.3d 1103, 1105 (10th Cir. 2011) (citation omitted).
2. Analysis Smith contends the government was re quired to prove the existence of an enterprise in order to convic t him on Count 2. The government disagrees, claiming all it was required to prove was Smith “ agree[d] to facilitate ” the commission of a substantive RICO offense. (Appellee’s Br. at 34.) In the alternative, the government claims any error did not affect Smith’s substantial rights because “the evidence overwhelmingly showed that the Crips qualified as an asso ciation-in-fact enterprise . . . .” ( Id. at 39.) Smith relies on our decision in United States v. Smith , 413 F.3d 1253 (10th Cir. 2005), overruled on other grounds by United States v. Hutchinson , 573 F.3d 1011, 1021 (10th Cir. 2009), to support his claim that the ex istence of an enterprise is an element of RICO conspiracy under 18 U.S.C. § 1962(d). There, the defendan t, a member of the King Mafia Disciples street gang, was convicte d by a jury of a RICO conspiracy under 18 U.S.C. § 1962(d). He argued the evidence was insufficient to support his conviction. In analyzing that argument, we said a defendant can be convicted of a RICO conspiracy “upon proof that the defendant knew about or agreed to fac ilitate the commission of acts sufficient to establish a [18 U. S.C.] § 1962(c) violation.” Smith , 413 F.3d at 1265. We then incorporated the el ements of the substantive offense (§ 1962(c)) into that definition, saying: [W]e hold that in order to convict a defendant for violating § 1962(d), the- 11 - Government must prove beyond a reasona ble doubt that the defendant: (1) by knowing about and agreeing to facilitate the commission of two or more acts (2) constituting a pattern (3) of racketeeri ng activity (4) participates in (5) an enterprise (6) the activities of which affect interstate or foreign commerce. Id. at 1266 (emphasis added). Be cause the defendant alleged, inter alia , that the government had failed to present sufficien t evidence of the existence of a RICO enterprise, namely that the Ki ng Mafia Disciplines was an “e nterprise,” we analyzed that narrow issue, concluding the gove rnment had met its burden. Id. at 1266-68. Smith also relies on decisions from the Third and Seventh Circuits. In United States v. Riccobene , the Third Circuit said: “To estab lish an ‘enterprise’ conspiracy [under § 1962(d)], the government mu st prove beyond a reasonable doubt that an ‘enterprise’ did in fact exist , and that the individual de fendants knowingly agreed to participate in the ‘enterprise’ through a pattern of racketeering.” 1 709 F.2d 214, 220-21 (3d Cir. 1983) (emphasis added). In United States v. Neapolitan , the Seventh Circuit was

1 The government says the Third Circuit ha s since renounced its view that a RICO conspiracy requires prove of the existence of an enterprise. It points to Instruction 6.18.1962D of the Third Circuit’s Criminal Pattern Jury Instru ction which explicitly states “the government is not required to prove that the alleged enterprise actually existed” in order to obtain a co nviction for RICO conspiracy. See Third Circuit Model Criminal Jury Instructions, Instruct. 6.18. 1962D. The comments to the instruction acknowledge that Riccobene stated to the contrary but refe r to that statement as dicta and claim later Supreme Court cases, namely Salinas v. United States , discussed infra , and Third Circuit cases hold otherwise. The government’s reliance on the pattern jury instruction as demonstrating the Third Circuit has abandoned its holding in Riccobene is misplaced. The pattern jury instructions were drafted by a committee of judges. See Committee on Model Criminal Jury Instructions, Third Circuit. However, “[ n]either the Court of Appeals nor any judge of that Court participated in the dr afting of the model instructions and the Court of Appeals has not in any manner appro ved the use of these instructions .” Id. at n.* (emphasis added).- 12 - called upon to decide whether a RICO conspi racy requires an agreement by the defendant to personally commit two predicate acts or ra ther merely an agreem ent by the defendant that members of the conspiracy will commit tw o predicate acts. 791 F.2d 489, 494 (7th Cir. 1986). The court concluded it was the latter. Id. at 497-98. To c onclude otherwise, it reasoned, would require “a degree of involvemen t in the affairs of the conspiracy that is not required in any other type of conspiracy, where agreeing to a prescribed objective is sufficient.” Id. at 498. While recognizing that RI CO has been used more broadly than anticipated by its legislative history, th e court emphasized two aspects of RICO conspiracy that limit its scope: (1) “the na ture of the agreemen t required,” i.e., “an agreement to conduct or participate in the affa irs of an enterprise a nd an agreement to the commission of at least two predicate acts,” and (2) “ the necessity of proving the existence of an enterprise .” Id. at 498-99 (emphasis added). For its part, the government relies on Salinas v. United States , 522 U.S. 52 (1997), and Boyle v. United States , 556 U.S. 938, 129 S. Ct. 2237 (2009). Salinas, like Smith, was charged with both a s ubstantive RICO violation a nd RICO conspiracy but only convicted of the latter. Th e question before the Court wa s whether a RICO conspiracy conviction requires proof that the defendant himself committed or agreed to commit the two predicate acts required for a substa ntive RICO violation under § 1962(c). Salinas , 522 U.S. at 61. In addressing the issue, the Court laid out the “predominant” elements of a § 1962(c) violation as “(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity” and noted the statute de fines “pattern of racketeering activity” as requiring at least two acts of racket eering, i.e., two predicate acts. Id. at 62.- 13 - Nevertheless, while a substantive RICO viol ation requires proof that the defendant himself committed two predicate acts, the Court determined nothing in the RICO conspiracy statute required proof that the defendant himself committed or agreed to commit two predicate acts. Id. at 63-64. That is because the RICO conspiracy statute (unlike the general conspiracy statute, 18 U. S.C. § 371) simply made it unlawful for any person to “conspire” to violate § 1962(c); there is no requirement of some overt or specific act in the statute. Id. at 63. And, under general cons piracy principles, while “[a] conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offens e,” he need not actua lly commit or agree to commit the substantive crime. Id. at 64-65. Indeed, “[i]t is elementary that a conspiracy may exist and be punished whether or not the substantive cr ime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so puni shable in itself.” Id. at 65.
In Boyle , the Supreme Court held an associati on-in-fact enterprise must have at least three structural features—“a purpose, re lationships among those associated with the enterprise, and longevity sufficient to perm it associates to purs ue the enterprise’s purpose.” 129 S. Ct. at 22 44. It rejected Boyle’s attempt to demand more. Id. at 2245. It also rejected his argument that requiring more structure would prevent merger of § 1962(c) with conspiracy to commit one or more crimes listed as RICO predicate offenses under 18 U.S.C. § 371. Id. at 2246. The Court said: [P]roof that a defendant conspired to commit a RICO predicate offense—for example, arson—does not nece ssarily establish that the defendant participated in the affairs of an arson enterprise through a pattern of arson crimes. Under § 371, a- 14 - conspiracy is an inchoate crime that may be completed in the brief period needed for the formation of the agreement and the commission of a single overt act in furtherance of the conspiracy. Section 1962(c) demands much more: the creation of an “enterprise”—a group with a comm on purpose and course of conduct—and the actual commission of a pattern of predicate offenses. Id. (citation omitted). None of the cases urged upon us resolve the question. Although Smith “held” and Riccobene said the existence of an enterprise was an element of a § 1926(d) violation, the issue was not before either court. Indeed, in both cases, it appears th e jury was instructed that the government was required to prove th e existence of an enterprise in order to convict for RICO conspiracy. On appeal, th e government did not argue the instruction was erroneous; both parties apparently assu med an existing enterprise was a necessary element. Therefore, the “holding” in Smith and the statement in Riccobene are dicta. See Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1184 (10th Cir. 1995) (“Dicta are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved no r essential to determination of the case in hand.”) (quotations omitted); see also Smith v. Orr , 855 F.2d 1544, 1550 (Fed. Cir. 1988) (“Broad language in an opinion, which language is unnece ssary to the court’s decision, cannot be considered binding authority.”); United States v. Crawley , 837 F.2d 291, 292 (7th Cir. 1988) (“[D]ictum [is] a statement in a judi cial opinion that coul d have been deleted without seriously impairing the analytical foundations of the holding--that, being peripheral, may not have received the full a nd careful consideration of the court that uttered it.”) (quotations om itted). While “a panel of this Court is bound by a holding of a prior panel of this Court[,] [it] is not bound by a prior panel’s dicta .” Bates v. Dep’t of- 15 - Corr. of State of Kan. , 81 F.3d 1008, 1011 (10th Cir. 19 96) (emphasis added). Moreover, Riccobene is an out of circuit decision, whic h is neither binding nor persuasive. See Grimland v. United States , 206 F.2d 599, 601 (10th Cir. 1953) (although decisions from other circuits “are persuasive and entitled to gr eat weight,” we are not bound by them). Similarly, while Salinas suggests the actual existenc e of an enterprise is not necessary to establish a RICO conspiracy, the holding in Salinas was limited to deciding that a defendant need not himself commit or agree to commit the two requisite acts required for a substantive RICO offense unde r § 1962(c) in order to be convicted of RICO conspiracy under § 1962(d). 2 Finally, neither Neapolitan nor Boyle is helpful. Neapolitan , another out-of-circuit decision, merely decided a RICO conspiracy requires an agreement by the defendant that members of the conspiracy will commit two pr edicate acts rather than an agreement by the defendant to personally commit two predi cate acts. Therefore, its suggestion that RICO conspiracy requires the existe nce of an enterprise is also dicta . And Boyle simply addressed the requirements of an enterprise. Although it distinguished § 1962(c) and § 371 based in part on the fact the former re quires the creation of an enterprise while the latter does not, it did not distinguish § 1962(c) and § 1962(d) on that basis. Rather, in

2 Shortly before this case was he ard, the Second Circuit decided United States v. Applins , 637 F.3d 59 (2d Cir. 2011). Ther e, the court “concluded that Salinas counsels that the establishment of an en terprise is not an element of the RICO conspiracy offense.” Id. at 75. While we agree Salinas suggests this, we need not decide the issue as our review is for plain error and Salinas is far from being clear or obvious on this issue. See United States v. Trujillo-Terrazas , 405 F.3d 814, 818 (10th Cir. 2005) (“To be plain, an error must be clear or obvious under we ll-settled law.”) (quotations omitted).- 16 - comparing these two statutes, the Court simply said “in pr actice” their elements “are similar.” 3 Boyle , 129 S. Ct. at 2246. “To be plain, an error must be clea r or obvious under well-settled law.” See United States v. Trujillo-Terrazas , 405 F.3d 814, 818 (10t h Cir. 2005) (quotations omitted). “In general, for an error to be co ntrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” United States v. Story , 635 F.3d 1241, 1248 (10th Cir. 2011) (quotations omitte d). Here, there is no controlling Supreme Court or Tenth Circuit precedent as to whet her the existence of an enterprise is an element of a RICO conspi racy under § 1962(d). Smith , Salinas and Boyle are not on point. See Story , 635 F.3d at 1246, 1248 (stating Te nth Circuit case which addressed the issue in dicta did not constitute well-settled la w for purposes of the plain error standard); United States v. Whitney , 229 F.3d 1296, 1309 (10th Cir. 2000) (same). And Riccobene and Neapolitan are not only not on point but ar e also non-binding out-of-circuit decisions. Even assuming, arguendo , there was plain error, we can not say the error affected Smith’s substantial rights (the third prong of the plain error test). For an error to have affected substantial rights, “the error must ha ve been prejudicial: It must have affected

3 In addressing the requirements of an enterprise, namely wh ether its structure must go “beyond that inherent in the pattern of racketeering activity,” the Court noted that “[i]f the phrase is interprete d to mean that the existence of an enterprise is a separate element that must be proved, it is of course correct.” Boyle , 129 S. Ct. at 2244-45. However, the Court was not necessarily referri ng to the elements of a RICO conspiracy as Boyle was also charged and convicted of a substantive RICO offense. Id. at 2241-42. In any event, Boyle merely addressed the requ irements of an enterprise; it was not asked to determine whether an enterprise is a necessary element of a RICO conspiracy.- 17 - the outcome of the district court proceedings.” Olano , 507 U.S. at 734. The burden to establish prejudice to substantial rights is on the party failing to raise the issue below-- Smith. Id. At oral argument, Smith conceded th e government presented evidence of an enterprise, i.e. , the Crips. Nevertheless, he claims th e jury did not find the existence of an enterprise because it failed to reach a verdict on Count 1, wh ich specifically required the jury to find the existen ce of an enterprise. He says the fa ilure to prove the existence of an enterprise was the reason the jury did not convi ct on Count 1 and this is evident from (1) the jury’s question asking whethe r the enterprise in Count 1 ha d to be established before it could render a verdict on Count 2 and the court’s response “No” and (2) an e-mail received by a co-defendant’s counsel from a ju ror after deliberations stating that there were only two jurors “that did not see the organization necessary to prove the [RICO] charge” and “[t]he only reason count 2 was decided the way it was, was because the government didn’t have to prove anything actua lly happened.” (Supp. R. Vol. 1, Part 2 at 322.) Smith has failed to meet his burden of sh owing any error affected his substantial rights. The evidence overwhelmingly showed the existen ce of an enterprise—the Crips gang. The evidence demonstrated the Crips gang is an asso ciation-in-fact whose purpose is to engage in various acts of violence a nd intimidation as well as robberies and drug trafficking. It has leaders and rules of conduc t (albeit unwritten) for its members. It also has its own “initiation procedures” and “justi ce system.” It holds meetings. Members frequently wear blue clothing and use hand signals to indicate their membership.- 18 - Members protect other members a nd the reputation of the gang. See Boyle , 129 S. Ct. at 2244-45, 2247 (discussing necessary sh owing to establish RICO enterprise); see also c.f. United States v. Applins , 637 F.3d 59, 77 (2d Cir. 2 011) (concluding evidence was sufficient to show Elk Block street gang wa s a RICO enterprise—members congregated daily in their territory, marked their territory with graffiti, received tattoos signifying their membership, flashed the Elk Block hand sign to represent their membership, and had a common purpose (selling drugs and protecting their territo ry and other members)); United States v. Phillips , 239 F.3d 829, 844 (7th Ci r. 2001) (finding government presented sufficient evidence th at the Dawg Life gang was a RICO enterprise—gang was a long-established and ongoing organization w ith a definite structure and hierarchical decision-making process which was i nvolved in drug distribution). Smith speculates as to th e reason the jury did not re turn a verdict on Count 1; insisting it was due to the government’s failure to prove an enterpri se. While the jury questioned whether the enterprise in Count 1 had to be estab lished before a verdict could be reached on Count 2 and the co urt said “no,” we cannot say with any confidence that a lack of proof on the existenc e of an enterprise was the re ason for the jury’s verdict on Count 1. Moreover, while the juror’s e-mail le tter to co-defendant’s counsel indicates the lack of the existence of an enterprise was the reason for th e jury’s verdict on Count 1, Rule 606(b) of the Federal Ru les of Evidence pr events us from considering that letter because it addresses a “matter . . . occurring during the course of the jury’s deliberations” and the effect certain evidence, or a lack thereof, had on he r and another’s juror’s “mind- 19 - or emotions.” 4 See Fed. R. Evid. 606(b); 5 see also United States v. Benally , 546 F.3d 1230, 1233 (10th Cir. 2008) (“[Rule 606(b)] in sulates the deliberati ons of the jury from subsequent second-guessing by the judiciary. Jury decision- making is designed to be a black box: the inputs (evidence and argument ) are carefully regulated by law and the output (the verdict) is public ly announced, but the inner wo rkings and deliberation of the jury are deliberately insula ted from subsequent review.”). In sum, the district court did not plainl y err but even if it did, the error did not affect Smith’s substantial rights.

4 There are three exceptions to the rule: “[A] juror ma y testify about (1) whether extraneous prejudicial inform ation was improperly brought to the jury’s attention, (2) whether any outside influence was improperl y brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verd ict form.” Fed. R. Evid. 606(b). None of these exceptions apply here. 5 Effective December 1, 2011, Rule 606( b) was amended and divided into two subsections: Prohibited Testimony or Other Evidence. During an inquiry in to the validity of a verdict or indictment, a juror may not testif y about any statement made or incident that occurred during the jury’s delib erations; the effect of anythi ng on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juro r’s statement on these matters.
Exceptions. A juror may testify about whether: (A) extraneous prejudicial informati on was improperly brought to the jury’s attention; (B) an outside influence was improperl y brought to bear on any juror; or (C) a mistake was made in enteri ng the verdict on the verdict form.
Even under the amended rule, we cannot consider the juror’s e-mail letter as it pertains to two jurors’ “mental processe s concerning the verdict” and none of the exceptions apply.- 20 - B. Sufficiency of the Evidence on Count 28 Smith claims the government presented insufficient evidence to sustain his conviction on Count 28—conspiracy to distribut e 50 grams or more of crack cocaine. According to Smith, the only evidence presented on this charge was testimony concerning two drug transactions he cond ucted with Detective Goodwyn. Because a conspiracy cannot exist between a defenda nt and a law enforcement officer, Smith contends the evidence cannot su pport his conviction. Even assuming Smith obtained the crack cocaine he sold Goodwyn from another Crips member, he contends that evidence only shows the existence of a buyer-seller re lationship between Smith and the other Crips member, which is insufficient to establish a conspiracy. Smith also contends the evidence failed to establish hi s agreement with other Crips members to distribute crack cocaine, his knowing and voluntar y participation in that agreem ent, or interdependence. He says the evidence established that Crips members who sold drugs did so for their own benefit—they did not share their drug profits with other Crips members and did not rely on other Crips members to make their sales. Finally, he claims even if there was evidence showing his knowing pa rticipation in a conspiracy to distribute drugs, his incarceration for approximately thirteen year s of the alleged fifteen-year conspiracy constituted a withdrawal from the conspiracy. We review sufficiency-of-the-evidence challenges de novo, considering both direct and circumstantial evidence, and a ll reasonable inferences therefrom, in the light most favorable to the government. We may not disturb the jury’s credibility determinations, nor weigh the evidence in performing this analysis. The evidence is sufficient under these tests if a reasona ble jury could have found the defendant guilty beyond a reasonable doubt.- 21 - United States v. Acosta-Gallardo , 656 F.3d 1109, 1123 (10th Cir.), cert. denied , 132 S. Ct. 540 (2011) (citations and quotations omitted). “To obtain a conspiracy convi ction, the government must prove: (1) an agreement by two or more persons to violate the law; (2) knowledge of th e objectives of the conspiracy; (3) knowing and voluntary in volvement in the conspiracy; and (4) interdependence among co-conspirators.” United States v. Foy, 641 F.3d 455, 465 (10th Cir.), cert. denied , 132 S. Ct. 467 (2011). An agre ement to distribute drugs can be inferred from the facts and ci rcumstances of the case. United States v. Evans , 970 F.2d 663, 669 (10th Cir. 1992). Howe ver, “mere presence is not su fficient in and of itself to establish a conspiracy, nor is it sufficient for the government to show only mere association with conspirators k nown to be involved in crime.” United States v. Caldwell , 589 F.3d 1323, 1331 (10th Cir. 2009) (quota tions omitted). “Likewise, the government must do more than show there were casual transactions between the defendant and the conspirators.” Id. (quotations omitted). Interdependence “requires proo f that the conspirators in tended to act together for their shared mutual benef it within the scope of the conspiracy charged.” United States v. Hamilton , 587 F.3d 1199, 1208 (10t h Cir. 2009) (emphasis and quotations omitted). “The requirement is satisfie d if the alleged coconspirato rs were united in a common unlawful goal or purpose and if a defenda nt’s activities facilitated the endeavors of another alleged coconspirator or f acilitated the venture as a whole.” Id. (emphasis and quotations omitted); see also United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995) (“[I]nterdependence exists wh ere each co-conspirator[’s] activities constituted essential- 22 - and integral steps toward the realizati on of a common, illicit goal.”). However, the interdependence elemen t does not require proof “the co conspirators know the identities or details of each scheme or have connections with all other members of the conspiracy.” Foy , 641 F.3d at 465 (q uotations omitted). The government presented sufficient evid ence to convict Sm ith on Count 28. First, the evidence showed the Crips gang engaged in drug dealing. Crips members have crack houses or “spots”-- residences where th ey “hang out,” cook cr ack cocaine, and sell drugs. (R. Vol. 2, Part 5 at 1204.) Se veral Crips gang members testified to having purchased powder and crack co caine from fellow Crips member s and having sold powder or crack cocaine to other Crips members. Smith was a member of the Crips and well aware of the gang’s activities. Second, the evidence showed Smith dealt drugs. On June 14, 2006, Goodwyn learned from a source that Smith was selling co caine. Goodwyn had the source set up a controlled buy with Smith. Going undercove r, Goodwyn, accompanied by the source, purchased approximately four grams of powder cocaine fro m Smith for $120. Goodwyn asked Smith about purchasing la rger amounts of powder and crack cocaine; Smith told him the prices. Two days later, Goodwyn bou ght 14 grams of crac k cocaine from Smith for $300. They agai n talked about future purchases. On October 19, 2006, office rs observed Smith making a short visit to a crack house operated by fellow Crips members El ton Profit and Lonnie Wade. Officers stopped Smith’s vehicle immediately thereafter. After Smith consented to a search of his vehicle, officers discovered 29.96 grams of cr ack cocaine under the vehicle’s gas tank lid.- 23 - Officers also found $600 in cash in his pocket in numerous denominations. Prentice Bryd, a fellow Crips member, testif ied to having started selling crack and powder cocaine in 2004. He sometimes gave powder or crack cocaine to other Crips so they could make money. He gave Smith 3. 5 grams of crack cocain e to sell when Smith was released from prison and also sold Smith powder cocaine several times throughout
2006. A search of Smith’s residence on Apr il 6, 2007, also connected him to drug trafficking. Officers uncovered a digital s cale with white residue, letters to Smith from incarcerated Crips requesting cocaine and mar ijuana, and a bucket containing marijuana. 6
A reasonable inference from this evidence is that Smith had an agreement with other Crips members, including Bryd, Wade and Profit, to di stribute crack cocaine and he was a knowing and willing partic ipant. Contrary to Smith ’s argument, the evidence consisted of more than just the transactions with Goodwyn or a buyer-seller relationship between Smith and another Crips member—the evidence showed a larger conspiracy among Crips members to distribute drugs, incl uding crack cocaine, and that Smith was a knowing and willing member of that conspiracy. 7 Smith contends the Crips members who tes tified at trial stated they sold drugs for their own personal profit, not to benefit the gang. Smith is referring to the testimony of

6 Smith was incarcerated at the time of the search and had been so since his arrest on October 19, 2006. 7 Several Crips members testified that wh ile Crips smoke mariju ana, they do not use crack cocaine as “crack heads” cannot be tr usted. (R. Vol. 2, Part 9 at 2184.) A reasonable inference is that Smith’s receipt of crack cocaine from Bryd, Wade and Profit was not for personal use.- 24 - Dontae Davis and Prentice Byrd. Davis testified he sold dr ugs for his own benefit and kept the proceeds; Byrd tes tified he provide d drugs to other Crip s members to sell for their own benefit. The fact Crips members di d not share their profits is immaterial. The evidence showed Crips members sold either powder or cr ack cocaine to other Crips members. The buyers in turn would either sell the crack cocaine they obtained or cook the powder cocaine into crack cocaine and sell it. Therefore, the sellers and buyers acted together for their shared mu tual benefit—the sellers prof ited from their sales to the buyers and the buyers in turn profited fro m their subsequent sales to consumers. Moreover, while Davis sold drugs for his own pe rsonal financial benefit, he also said he preferred to deal drugs with other Crips me mbers to keep the money among them. He also trusted other Crips not to involve the police. According to Smith, his extended periods of incarceration during the conspiracy period constituted withdrawal, but “[n]either arrest nor incarceration automatically triggers withdrawal from a conspiracy.” United States v. Fishman , 645 F.3d 1175, 1196 (10th Cir.), cert. denied 2011 WL 5834667 (2012) (quo tations omitted). Rather, “to withdraw from a conspiracy an individual mu st take affirmative action, either making a clean breast to the authorities or communica ting his withdrawal in a manner reasonably calculated to reach co-conspirators.” United States v. Parnell , 581 F.2d 1374, 1384 (10th Cir. 1978). “[C]essation of ac tivities alone is not enough.” Id. The defendant bears the burden of establis hing withdrawal. Id. Other than showing he was only out of prison intermittently for 21⁄2 years of the fifteen-year conspiracy (which the government stipulated to), Smith failed to show he- 25 - took any affirmative action to withdraw from the conspiracy. Indeed, Byrd testified he gave Smith 3.5 grams of crack cocaine to se ll after Smith was released from prison. Moreover, the search of Smith’s residence re vealed several letters from incarcerated Crips seeking drugs. A reasonable inference from this evidence is that incarceration did not stop drug dealing. 8
C. Denial of Requested Jury Instructions Smith requested jury instruc tions informing the jury that “[a] government agent cannot serve as the seco nd party in a conspiracy to dist ribute drugs” and “[t]here can be no conspiracy established by proving a me re buyer-seller relationship between the defendant Jonearl Smith and the purchaser, o fficer Ron Goodwyn.” (Supp. R. Vol. 1, Part 2 at 286-87.) The district court refu sed the requested instructions. Error, Smith claims, because the only evidence of the allege d conspiracy was his sale of crack cocaine to Goodwyn on two occasions. According to him, refusing the requested instructions led the jury to wrongfully believe he entered into a conspi racy to sell crack cocaine with Goodwyn. We review a district court’s refusal to give a requested instruction for abuse of discretion. In assessing whether the distri ct court exercised its discretion properly,

8 Importantly, the jury wa s instructed that a defendant may withdraw from a conspiracy if he shows “some affirmative act ion taken to disavow or defeat the purpose of the conspiracy.” (R. Vol. 1 at 156.) It was also told it could “c onsider evidence of an individual’s imprisonment during the course of the conspiracy on the issue of withdrawal.” ( Id. ) Despite these instructions and hearing evidence in the form of a stipulation that Smith had been in prison for almost thirteen years of the fifteen-year conspiracy, the jury nevertheless found him gu ilty on Count 28. As stated above, the evidence supports the jury’s implicit conc lusion that Smith’s imprisonment did not constitute withdrawal.- 26 - we review the jury instruc tions de novo to determine whether, as a whole, they accurately state the governing law and pr ovide the jury with an accurate understanding of the relevant legal standards and factual issues in the case. A defendant is entitled to an in struction on his theory of the case if the instruction is a correct statement of the law, and if he has offered suffici ent evidence for the jury to find in his favor. United States v. Crockett , 435 F.3d 1305, 1314 (10th Cir. 2006) (citations omitted). Smith does not contest the legal accuracy of the instructions given on Count 2. Rather, he believes his requested instructions were necessary to prevent the jury from convicting him based on a supposed conspiracy with Goodwyn. “It is settled law in this circuit that proof of the existence of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy.” See United States v. Williamson , 53 F.3d 1500, 1518 (10th Ci r. 1995) (quotations omitted). However, this rule only applies to the buyer. See United States v. Flores , 149 F.3d 1272, 1277 (10th Cir. 1998) (explaini ng “the purpose of the buyer-s eller rule is to separate consumers, who do not plan to redistribute dr ugs for profit, from street-level, mid-level, and other distributors, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy”; concludi ng the buyer-seller rule did not apply to defendant who was not a purchaser but a seller of drugs) (quotations omitted); see also United States v. Fox , 902 F.2d 1508, 1514 (10th Cir. 1990) (“We have held that proof of the existence of a buyer-seller relationship, with out more, is inadequate to tie the buyer to a larger conspiracy. One who merely pur chases drugs or other property from a conspirator does not thereby become a member of the conspiracy. The reason is that guilt remains individual and personal, even as respect s conspiracies, and is not a matter of- 27 - mass application.”) (citations and quotations omitted). In th is case, Smith was the seller in the drug transactions with Goodwyn. T hus, the evidence did not support giving the requested “buyer-seller relationship” instruction. As to the other requested instructi on, it correctly states the law. See United States v. Barboa , 777 F.2d 1420, 1422 (10th Cir. 1985) (“[T]here can be no indictable conspiracy involving only the defendant an d government agents or informers.”). However, even assuming the court erred in no t giving the instruction, any error was harmless beyond a reasonable doubt. See United States v. Smith , 888 F.2d 720, 723 (10th Cir. 1989) (failure to give a requested jury in struction is reviewed for harmless error; “[i]n doing so, we must determine whether we ca n declare a belief that failure to give [a requested instruction] was harmless beyond a reasonable doubt.”) (quotations omitted); see also United States v. Schuler , 458 F.3d 1148, 1156 (10th Cir. 2006) (“Reversal of a conviction is warranted on ly where the failure to give an in struction is prejudicial in view of the entire record.”). Contrary to Smith ’s contention and as demonstrated above ( see Section III(B)), the government’s evidence of Smith’s par ticipation in the alleged conspiracy consisted of more than just his dr ug transactions with Goodwyn; it showed he conspired with other Crips members, includi ng Byrd, Wade and Profit, to distribute crack cocaine.
D. Denial of Evidentiary H earing on Jury Misconduct The jury began its deliberations on Marc h 30, 2009. On Apr il 8, 2009, the jury informed the court it had reached a verdict on sixteen counts but were at an impasse on- 28 - the remaining eighteen counts. 9 The court then gave a modified Allen 10 instruction. On the afternoon of April 14, 2 009, the jury informed the court that “after strongly considering [the Allen instruction],” it had reached a verdict on twenty-six counts but were still at an impasse on eight counts. (Supp . R. Vol. 1, Part 2 at 305.) The court did not answer the jury’s question. The next morning, the jury returned a verdict on all but six counts. 11 Immediately after the jury’s verdict was accepted and the jury discharged, the court allowed the jury to meet with counsel from both sides to discu ss the case. At that time, the presiding juror provided a typed le tter to government’s counsel thanking them and praising them for their handling of the ca se. The juror also o ffered to meet with government’s counsel to discuss the case, jury deliberations and “anything else that may help you in an effort to rid th is cancer in our society.” (Supp. R. Vol. 1, Part 2 at 321.) The next day, another juror sent an e-mail to a co-defendant’s counsel. The e-mail stated in relevant part: To be perfectly honest, when I entere d deliberations, I was prepared to vote

9 The indictment alleged thirty counts. However, because some counts pertained to more than one defendant, while others applied only to one defendant, the number of “counts” or findings the jury ha d to make was thirty-four. 10 See Allen v. United States , 164 U.S. 492, 501 (1896). 11 It is unclear from the record whether the jury continued to deliberate after informing the court on the afternoon of Apr il 14th that it had reached a verdict on all but eight counts or before the verdict was taken on April 15th. The record only indicates the question was written at 2:35 pm on the 14th and the court took the verdict the next morning at 8:30 am. The fact the ultimat e verdict was rendered on all but six counts indicates further deliberations may have occurr ed either on the afternoon of the 14th or the morning of the 15th, unless the jury’s letter included a miscalculation.- 29 - everyone not guilty. It was with a heavy heart that I ma de some of the decisions I made, especially in regards to your client . I came to the quick realization that apparently my view of the law was differe nt tha[n] most of the other jurors, and ironically that of the law itself. I ultimat ely had to make my decision on the law, even though I did have a hard time belie ving some of the witnesses, especially when there was nothing else to back it up. (Supp. R. Vol. 1, Part 2 at 322.) Relying on the letter from the presiding juror, Smith mo ved for a new trial or at the very least an evidentiary hearing based on juror misco nduct, namely, juror bias in favor of the government. He claimed the fa ct the letter was typed showed it was written prior to the close of deliberations. And its contents revealed th e presiding juror was biased in favor of the government, going so fa r as to call him and the Crips organization a “cancer in our society.” (Supp. R. Vol. 1, Pa rt 2 at 321.) According to Smith, that bias, considered in conjunction with the e-mail fro m another juror to a co-defendant’s counsel, demonstrated the jury was pressured into reaching the verdict it did. The court denied relief. It noted the verdict was split betw een hung counts and guilty and not guilty verd icts and reasoned: To speculate that the presiding juror b ecame a pseudo-prosecu tor based upon his comments in his letter overlooks the ve rdict that was returned because the presiding juror had to vote to acquit on several charges. As such, the post-trial communication by the jurors certainly do[e s] not rise to the level of misconduct, and do[es] not merit setting the verdict . . . [a]side. (R. Vol. 1 at 290-91.) Smith renews his juror misconduct arguments here. He again claims the district court should have granted a new trial or at th e very least held an evidentiary hearing to determine whether there was actual bias.- 30 - “We review the denial of a motion for new trial based upon juror misconduct for an abuse of discretion.” United States v. Simpson , 950 F.2d 1519, 1521 (10th Cir. 1991). The relevant inquiry is “whether actual bias existed or whether the circumstances compel an imputation of inherent bias to the juror as a matter of law such th at the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” 12 United
States v. Lawrence , 405 F.3d 888, 903 (10th Cir. 2005). “The trial court’s decision as to how to proceed in response to allegations of juror misconduct or bi as will [also] not be reversed absent an abuse of discretion.” United States v. Youts , 229 F.3d 1312, 1320 (10th Cir. 2000). However, “[w]hen a party’s suggestion that a jury is biased is not frivolous, the district court ordinarily shou ld undertake an adequa te inquiry into the questions of whether the bias actually existed and whether it was prejudicial.” United
States v. Bradshaw , 787 F.2d 1385, 1390 (10th Ci r. 1986) (quotations omitted). We see no abuse of discretion—either in the court’s denial of the motion for new trial or its failure to hold an evidentiary hearing. First, to the extent the presiding juror’s letter touches on a matter occurring during ju ry deliberations, it is not admissible under Rule 606(b) of the Federa l Rules of Evidence. See Benally , 546 F.3d at 1231 (juror’s testimony concerning racial bias during ju ry deliberations proh ibited by Rule 606(b)). Even assuming we could consider the letter, it indicates a distas te for gang activity.

12 In Remmer v. United States , the Supreme Court held: “In a criminal case, any private communication, contact, or tampering dire ctly or indirectly, with a juror during a trial about the matter pending before th e jury is, for obvious reasons, deemed presumptively prejudicial . . . .” 347 U.S. 227, 22 9 (1954). Because there is no claim of juror tampering during trial, prejudice is not presumed.- 31 - Distaste for those who violat e the law does not mean a ju ror disregarded his solemn obligation to determine whether the a ccused was, in fact, a lawbreaker. There is no indication the presiding juror exer cised bias during deliberations. Indeed, as the court pointed out, the jury, including the presiding juror, acqu itted Smith and his co-defendants on some charges. Moreover, it is pure spec ulation the letter was authored during deliberations. Given that the court took the ve rdict early on the 15th, the juror could have typed the letter after deliber ations concluded on April 14. 13
E. Subsequent Vacation of Smith’s Predicate Act Convictions On April 17, 2007, two year s before the trial in this case, Smith pled guilty pursuant to a plea agreement to one count of possession of a controlled substance with intent to distribute and two counts of distri bution of a controlled substance (Case No. 06- 10237-01-MB). The three coun ts were based on Smith’s tw o drug transactions with Goodwyn in June 2006 and the finding of crac k cocaine in the gas cap of Smith’s vehicle in October 2006. The plea agreement cont ained no promise the government would not file any additional charges against Smith ar ising out of the con duct to which he was pleading guilty. 14 Smith was sentenced to 150 mont hs imprisonment, which was later reduced to 125 months based on the retroac tive application of th e amendments to the crack cocaine sentencing guidelines.

13 As stated previously, we are prohibite d from considering the juror’s e-mail to co-defendant’s counsel under Rule 606(b). In any event, the letter does not indicate the presiding juror pressured that juror into finding in favor of the government; indeed, it indicates that juror made her decisions based on the law. 14 Such promise is typical in most plea agreements.- 32 - After pleading guilty, Smith was indicted in this case and his three convictions were used as predicate acts. After unsuccessfu lly seeking to have the charges in this case dropped based on his plea and convictions in Case No. 06 -10237-01-MB, Smith moved to vacate the three convicti ons in Case No. 06-10237- 01-MB based on ineffective assistance of counsel. Namely, he claimed his attorney had told him his plea in Case No. 06-10237-01-MB would prevent him from being charged in this case and had he known otherwise, he would not have pled guilty. On July 19, 2010 , while Smith was awaiting sentencing in this case, the court granted Smith relief in Case No. 06-10237-01-MB, vacating his three convictions and setting the case for trial. Smith subsequently moved to dismiss the case on double jeopardy and co llateral estoppel gro unds; the motion was denied. We affirmed. See United States v. Smith , No. 11-3062, 2011 WL 6739424, at *4 (10th Cir. Dec. 23, 2011) (unpublished). Prior to sentencing in this case, Smith argued his RICO conspiracy conviction should be set aside because his convictions on the underlying predicate acts had been vacated. It is unclear whether the district c ourt formally ruled on th e issue as the record contains no such ruling. Nevertheless, the court obviously denied relief as it sentenced Smith on Count 2. Smith repeats his argument here. He sa ys to be convicted under 18 U.S.C. § 1926(d), the government must prove he knowingly agreed to facilitate the commission of two or more acts. At trial in this case, th e government alleged the three drug transactions as the predicate acts against Sm ith and used his convictions to prove them. Because the jury could have based its ve rdict on Count 2 on the now va cated convictions, Smith says- 33 - his conviction on Count 2 cannot stand. While Smith raised this issue in a sentencing memora ndum (his first opportunity to raise the issue after his co nvictions were vacated), it is essentially an argument for judgment of acquittal. Ou r review is de novo. United States v. Eaton , 260 F.3d 1232, 1236 (10th Cir. 2001). We see no error.
In Salinas , the Supreme Court said there is no re quirement in § 1962(d) of an overt act. 522 U.S. at 63. Therefore, a defendan t can be guilty of RICO conspiracy under § 1962(d) even though he himsel f “does not . . . commit or agree to commit the two or more predicate acts” required to prove the substantive offense. Id. at 65. Thus, the fact Smith’s convictions on the predicate acts were vacated does not preclude his RICO conspiracy conviction given the evidence showed other Crips members committed various predicate acts and Smith knew about and agreed to facilitate them, namely, he obtained crack cocaine from a drug house main tained by Lonnie Wa de and Elton Profit (Racketeering Act 39) and engaged in a conspi racy to distribute 50 grams or more of crack cocaine (Racketeering Act 43). See id. at 66. Moreover, the government did not use Smith’s convictions to establish his predicate acts. Instead, it called witnesse s to do so. Indeed, it was Smith, not the government, who introduced evidence of his co nvictions of these predicate acts. The- 34 - government’s evidence, independent of Smith’s prior convictions, sufficiently established the predicate acts. AFFIRMED.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge