NOT RECOMMENDED FOR PUBLICATION File Name: 13a0854n.06 Nos. 11-1170, 11-1208 11-1221, 11-1223, 11-1349, 11-1354 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.
AREF NAGI, MICHAEL CICCHETTI, GARY BALL, JR., LEONARD MOORE, JOSEPH WHITING, and ANTHONY CLARK, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges. SILER , Circuit Judge. Aref “Steve” Nagi, Michael “Cocoa” Cicchetti, Gary “Junior” Ball, Leonard “Dad” Moore, Joseph “Little Joe” Whiting, and Anthony “Mad Anthony” Clark members of the Highwaymen Motorcycle Club were charged and convicted of numerous crimes, including violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); Violent Crimes in Aid of Racketeering (“VICAR”), 18 U.S.C. § 1959(a)(3); drug conspiracy, 21 U.S.C. § 846; conspiracy to transport stolen motor vehicles, 18 U.S.C. §§ 2312 and 371; conspiracy to alter or remove vehicle identification numbers, 18 U.S.C. §§ 511 and 371; and the illegal use of firearms, 18 U.S.C. § 924(c). They appeal their convictions and sentences on various grounds. For the following reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings.Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al.

I. The Highwaymen Motorcycle Club (“HMC”) is a multi-state organization with its national headquarters located in Detroit, Michigan. In its prime, HMC included approximately ten chapters, mostly in and around Detroit. Each chapter, with its own officers and internal leadership structure, operated within the hierarchy of the organization as a whole. Members earned their HMC “colors” after going through a probationary period and could earn lightning rods a symbol worn on the HMC vest by committing various types of criminal activity in the interest of the Club. Illegal drugs were common within the HMC. Trial testimony suggested that many members did not hold regular jobs and met their obligation to pay weekly dues by selling drugs. Nagi, for instance, sold cocaine and marijuana. Cicchetti purchased cocaine from HMC member Gerald Peters both for distribution and personal use. On multiple occasions, Cicchetti brought his work crew to the HMC clubhouse so that they could obtain cocaine there. Robert Burton, a major cocaine dealer, testified that Defendant Ball was as big a cocaine distributor as himself. Clark worked with HMC member Daniel Sanchez to sell drugs. And Moore and Whiting, as senior members of the HMC, often received free cocaine from other HMC members. HMC members also were involved in the theft and resale of motorcycles. During “bike week” in Myrtle Beach, South Carolina, HMC members including Nagi and Ball stole motorcycles and transported them back to Detroit via U-Haul. Later, some of the stolen bikes were found in the possession of HMC members. While executing a search warrant at Ball’s family business, “Pal’s Auto,” agents found numerous stolen motorcycles and cars with altered vehicle identification - 2 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al.

n u m b er s. Trial testimony reve aled that Cicchetti, Ba ll, and Whit ing all possessed vehicles wit h altere d VI Ns. The HMC also has a history of violent a cts. Many of the g roup’s violent acts wer e done to further the Cl u b ’s crimi nal enter prise and to protec t the authority and reputa tion of the HMC
among st rival g ang s. For e x ample, in 2003, HMC member Bur ton a ttempted to buy coca ine from Ruben Guzman. When Guzman’s coca ine broker refused t o p ro ce ed with the deal, Guzman kept the money that Bur

ton had alre ady g iven him. I n reta liation, Bur ton and fellow HMC members pistol-whipped and robbed Guzman befor e locking him inside the trunk of a car and driving awa y . Guzman, was able to esca pe by activating the trunk’s e merg ency rele ase. Hig hly rele vant to this case is a 2005 incident at a Detroit-a rea bar called the Wheat & Ry e. Following an alterc ation at another bar, sever al HMC members assaulted Alan Kirchof f at the Wheat & Ry e by punching him and brea king g lass bot t l es o v er his head. HMC member Erick Manner s brandished a

g un, pointed it at Kirchoff , and proc eede d to fire two rounds i nto the ceiling. P olice office rs who responde d to the scene pursued a black pick-up truck that was speeding awa y from the bar. The truck came to a stop on a dead- end street and office rs observe d an individual running awa y from the driver’ s side of the truck. When the office rs approa ched the truck , t h ey o b s erved Def endants Cicchetti and Nag i still inside, along with a Hig hway men vest in the cab. A Glock pistol wit h h o l l o w point bullets was located on the g round near by , althoug h law enfor ceme nt officia ls deter mined that it was not the g un that was fired inside the Wheat & Ry e. Wiretapped telephone

conver sations betwee n Nag i and Bo Moore, “Da d” Moore’ s son and fellow HMC member, confirme d Nag i’s and Cicche tti’s involvement in the incident. - 3 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. I n 2006, some HMC members suspected that Ger ald Dee se had stolen their proper ty

. Bur ton

encour ag ed HMC members to confr ont Dee se. They did so, striking him with a shovel handle until he lost consciousness. L ater , in an eff ort to dissuade Dee se from pressing char g es, Whit ing and Dad Moore a rra ng ed for Dee se to rec eive se vera l thousand dollars in cash. L ater in 2006, a rival g ang called the L atin Counts lear ned that the FB I was investiga ting both the Counts and the HMC. Be lieving that HMC member Doug Bur nett was the informant, Whit ing, who was the HMC national president at the time, sanctioned the elimination of Bur nett by either the Counts or HMC members. Bur nett’s picture was display ed in the HMC c lubhouse along with the caption “ra t.” Whit ing, along with Detroit Chapter president Ronald Hatmake r, offe red a bounty on Bur nett’s life, a s well as a r ewa rd of time aw ay

from HMC business. II. The di strict

court proper ly denied Nagi’s mot ion to sup press wiretapped conversat ions, as well as his reques t f o r an evidentiary hearing und er Franks v. De laware, 438 U.S. 154 (1978). During its investiga tion, the g overnme nt obtained multipl e Title I I I wireta p orders, authorizing the interce ption of thousands of telephone calls among HMC members. One such order , and extensions there of, authorized the interce ption of Nag i’s telephone number from October 2005

t hroug h May 2006. Prior to trial, Nag i unsucce ssfully moved on various g rounds to suppres s t h e interce pted calls. Whil e we revie w the district cour t’s fac tual finding s for c lear err or and its leg al conclusions de novo, United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002), the issuing judge ’s deter mination wit h respe ct to an elec tronic surveillance order is entitled to signific ant defe renc e. United States v. Corrado, 227 F.3d 528, 539 ( 6th Cir. 2000). - 4 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. Nagi argues that the wiretaps did not meet the necessity requirement of 18 U.S.C. § 2518(1)(c). Specifically, he argues that the affidavits used to obtain judicial authorization did not

1 establish that less intrusive investigatory techniques were insufficient to meet law enforcement needs. However, law enforcement officials are required only to “give serious consideration to the non-wiretap techniques prior to applying for wiretap authority” and inform the court of the reasons for their belief that non-wiretap techniques “have been or will likely be inadequate.” Stewart, 306 F.3d at 305 (quoting United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985)). The initial electronic surveillance affidavit detailed the reasons officials believed that a wiretap was necessary. It stated that while three confidential informants had been used, they had not shed light on all of the participants in the conspiracy. It also explained that at least one informant was reluctant to wear awire due to safety concerns. Further, traditional surveillance techniques were hampered by countersurveillance techniques employed by the HMC. Nagi also argues that the government failed to minimize the intercepted calls to avoid unnecessary intrusion on private, non-criminal conversations, as required by 18 U.S.C. § 2518(5). However, defendants seeking to suppress wiretapped phone conversations must do more than identify particular calls that should not have been intercepted “they must establish a pattern of interception of innocent conversations which developed over the period of the wiretap.” United States v. Lawson, 780 F.2d 535, 540 (6th Cir. 1985). The burden of persuasion with respect to

Wiretaps applications are required to include “a full and complete statement as to whether 1 or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). - 5 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. minimi zation rests with Nag i. See U nited States v. Giacalone

, 853 F.2d 470, 482 ( 6th Cir. 1988). He ha s failed to make the re quisite showing. The wire tap orde rs at issue state: All of the interce ptions will be minimi zed in acc ordanc e with Chapter 119, Title 18, United States Code. I nterc eptions will be minimi zed when it is deter mined throug h voice identification, phy sical s u rv ei l lance or otherwise that none of the named interce ptees or their confe der at es , when identified, are participa nts in the conver sation, unless it is determined the conve rsation is criminal in nature

. At a Fe bruar

y 2010 hear ing, the g overnme nt descr ibed in detail the mini m i z ati on proce dures it employ ed. Nag i fails to identify any particula r conver sations that should not have been monitored, stating only that “[i] t does not appea r as if minimi zation consistent with the statute and case law took place .” He relies on statistical data alone, claiming that when viewed in light of the low number of calls involving crime, an unrea sonable perc entag e of calls was minimi zed. He g oes on to state that

s ome of the interce pted conver sations wer e “per sonal” and did not rela te to targ ets of t h e investiga tion. These conclusory arg uments simply are insufficient to mandate reve rsal of the district court’s de nial of his motion to s uppress the phone calls. Finally , Nag i arg ues that the interce pted calls should have been s u p p resse d beca use the
g overnme nt did not provide sealing order s during discovery

. As Nag i points out, “[i] mmediately
upon the expiration of the period of the order , or extensions there of, such rec ording s shall be made available to the judge issuing such order and seale d under his direc tions.” 18 U.S.C. § 2518(8)( a). Nag i implies that the g overnme nt delay ed in making the rec ording s at issue available to the judge s who issued the wireta

p order s. His express complaint, howeve r, is that the g overnme nt should have provided him with the sealing order s issued by the judge s afte r the rec ording s wer e made available - 6 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al.
to them. I n response to Nag i’s motion to suppress, the g overnme nt explained that “houseke eping items” such as sealing order s ordinarily are not provided in discovery

. Nonethele ss, the g overnme nt provided the order s to Nag i upon his reque st. Nag i has failed to identify any prejudice resulting from the g overnme nt’s alleg ed delay in pr oviding the sealing order s to him. Acc ording ly , his arg ument with respec t to the sealing order s is without m erit. Nag i also fails to demonstrate that the district court err ed in deny ing him a hear i n g u n der Franks v. Delaware, 438 U.S. 154 (1978). To mandate an evidentiar y hear ing under Franks, “[t] here

must be alleg ations of delibera te falsehood or of rec kless disreg ard for the truth

. ” Id

. at 1 7 1

. Fur ther, the alleg edly false statement must have been nece ssary to the finding of probable cause for the wireta

p order

. Id. at 155-56. Other than the ar g uments outlined above, Nag i identifies no defic iencies with respe ct t o the wire tap orde rs or the a ffidavits used to obtain them. Ac cording ly , Nag i’s attack doe s not warr ant re versa l of the district court’ s decision to deny a hea ring

. III. Moore ’s m otion f

or seve rance was properly denied. We reviewa district cour t’s denial of a mot ion to sever for an abuse of discretion. United States v. Cody, 498 F.3d 582, 586 (6th Cir. 2007)

. Since Moore did not rene w his motion to se ver at the close of evide nce, how ever , we can reverse only upon a showing of plain err or. See United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002). Genera l l y , persons jointly indicted should be tried toge ther beca

use “ther e is almost alway s common evidenc e ag ainst the joined defe ndants that allo ws for the economy of a single trial.” Id. (interna l citation omitted). Severa nce should be
g rante d only “if there is serious risk that a joint trial would compromise a specific trial rig ht of one - 7 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. of t he defenda

nts, or prevent t he jury from making a reliable judgme nt about gui l t o r i n n o cenc e.” Id. (interna l citation omitted). That a defe ndant might stand a better chanc e of acquittal if his trial

wer e sever ed does not require the court to g rant his motion. Id. M o o re asser ts that he suffe red compelling , specific , and actua l prejudice from being tried along with his co-de fenda nts beca use he

was convicted based on his “mer e association with the HM C

. ” T h i s i s prec isely the ty pe of
g ener alized arg ument that cannot sustain a mot ion to sever , particula rly when viewed through the defe rential lens of

plain-er ror r eview. IV. The governm ent’s evidence at trial did not cre ate a variance from or a construct ive am endm ent to t he ind ictm ent. “A varia nce to the indictment occur s when the char g ing terms of the indictment are unchang ed, but the evidenc e at trial proves fac ts materia lly differ ent from tho s e al l ege d in the indictment.” United St a t es v. Ca ve r , 470 F.3d 220, 235 (6th Cir. 2006). “A varia nce is not

reve rsible err or unless the defe ndant demonstrates prejudice .” United States v. Nance, 481 F.3d 882, 886 (6th Cir. 2007). I f a varia nce is serious enoug h, it become s a constructive amendment. United States v. B u d

d , 4 9 6 F.3d 517, 521 (6th Cir. 2007). This occur s “only when the varia nce cre ates a substantial likelihood that a defe ndant may have been convicted of an offe nse other than that char g ed by the g rand jury .” Nance, 481 F.3d at 886. Reviewing t h e d i strict court’s ruling de novo, see Nance, 481 F.3d at 886, we conclude that the g overnme nt’s p ro o f d i d n o t cre ate a varia nce or constructive a

mendment.

- 8 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. Both Nagi and Moore argue that the government varied from Count 2 of the Superseding Indictment conspiracy to violate RICO. Nagi argues that the government deviated from the indictment because “the HMC was a defendant in this case, as alluded to by the government in declaring it a criminal organization directly benefitting from the actions of its members.” He contends that, at trial, the government “stated that the HMC was not a criminal organization, and it was not illegal to join the HMC, an organization it originally charged as a criminal enterprise.” Essentially, Nagi argues that rather than proving one large racketeering conspiracy, the government introduced evidence of several different drug conspiracies involving HMC members. Contrary to Nagi’s assertion, however, the HMC was never named as a defendant in this case. Further, the evidence used to prove the existence of a RICO conspiracy necessarily overlaps with evidence of the specific criminal acts of members of the conspiracy. While the existence of a RICO conspiracy was a question for the jury to decide, the question of the conspiracy’s existence certainly did not create a variance from or a constructive amendment to the indictment. Under Nagi’s theory, the government’s failure to carry its burden of proof with respect to RICO would automatically constitute a variance from the indictment. This is an untenable proposition and is without support in the law. Likewise without merit is Whiting’s argument that the government varied from Count 13 of the Superseding Indictment conspiracy to commit murder. Whiting acknowledges that, per the indictment, he was charged with conspiring with Cicchetti, Moore, and Ball to kill Burnett. He argues that, during trial, the government presented evidence that he conspired separately with Anthony Viramontez, leader of the rival gang, Latin Counts, to murder Burnett. Whiting takes issue - 9 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. with the fac t that Viramontez was not listed as a c o-conspira tor in Count 13 of the indictment and that Count 13 did not contain the lang uag e “a nd others known a

nd unknown.” I n United States v. Pingleton, 216 F. App’x 526 (6th Cir. 2007), two individuals wer e char g ed with ag ree ing to commit

a drug offe nse, b u t t h e p roof at trial implicated a third individual who was not named in the indictment. As is the case here , the indictment failed to include the customary “and others known and unknown” lang uag e. Id. at 529. We concluded tha t, a lthough the lack of customary lang uag e

was aty pical, no varia

nce or constructive amendment had o cc u rr ed beca use the complaining defe ndant had otherw i s e re ce ived not ice reg arding the uncharg ed conspirator. Id

. We also noted the g ener al rule that the prosec ution is not require d to furnish co-c onspirators’ names so long as the defe ndant has notice of the conspirac y with which he is char g ed. Id. (citing United States v. Rey , 923 F.2d 1217, 1222 (6th Cir. 1991)). As in Pingleton, there is no doubt that Whit ing rec eived notice of the conspirac y with which he was char g ed an d t h at Vi ramontez was thought to be part of the conspirac y . At the very least, Viramontez’s involveme n t w a s discussed during a May 2009 detention hear ing and his name was mentioned in at least 30 discovery documents that Whit ing rec eived well befor e trial. Ac cording ly , Whit ing’ s arg ument is without m erit. V. The jury instructions di d not sh if t the burden of

proof to Defend ants. Def endants Ba ll, Moore, Whit ing, and Clark arg ue that, when instructing the jury , the district

court impermissibly shifted the burden of proof to the defe ndants. The instruction portion of th e orig inal trial transcr ipt reve aled the following statement: “I n order to conv i ct a defe ndant on the RI CO conspirac y offe nse char g ed in Count 2, the defe n d an t m u s t prove all of the following five - 10 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. elements beyond a reasonable doubt . . . .” The court reporter reviewed the audio recording of the trial, however, and acknowledged that the word “defendant” was a typographical error the instruction actually given had placed the burden of proof on the government. Based on the error, the court reporter filed a corrected transcript. None of the defendants addresses the government’s argument or acknowledge the existence of the corrected transcript. Although Ball and Moore filed reply briefs, neither addressed this issue. Considering these circumstances, it seems that the defendants do not seriously dispute that the district court applied the correct burden of proof. Accordingly, the defendants’ argument with respect to the jury instruction fails. VI. The defendants have not established prosecutorial misconduct. Defendants argue that their trial was substantially affected by prosecutorial misconduct and that, as a result, their convictions should be overturned. Much of the defendants’ quarrel with the government’s conduct centers around the payment of money to witnesses. As part of its case-in-chief, the government called several cooperating witnesses to testify. Some of those witnesses had previously received money from the government mainly to compensate them for relocation expenses. At a pretrial hearing in March 2010, the government gave to defense counsel a letter that described the payments made to six of the cooperating witnesses. On April 19, 2010 during trial, but well before Philip McDonald’s May 11 testimony the government delivered another letter to defense counsel detailing a payment in excess of $44,000 to McDonald for relocation expenses. The defendants contend that the government’s “delayed” production of the - 11 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. information concerning the payment to McDonald constitutes a violation of the rule established in Brady v. Maryland, 373 U.S. 83 (1963). However, “ Brady is concerned only with cases in which the government possesses information which the defendant does not, and the government’s failure to disclose the information deprives the defendant of a fair trial.” United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). Because the information was provided in a manner that gave the defendants ample time to cross-examine witnesses regarding the payments, the Brady concern is not present here. Defendants also argue that the government committed misconduct by promising another witness, Burnett, a bonus at the conclusion of the case. There is no indication in the record, however, that Burnett was promised a bonus that was contingent upon conviction or the nature of the testimony given. Accordingly, the defendants’ opportunity to cross-examine Burnett was a sufficient safeguard against impropriety. See United States v. Grimes, 438 F.2d 391, 395-96 (6th Cir. 1971); see also United States v. Levenite, 277 F.3d 454, 462-463 (4th Cir. 2002) (describing additional safeguards that are necessary when payment is contingent upon conviction or testimony of a specific nature). Additionally, Ball argues that the prosecution committed misconduct by proceeding to trial against him on Count 13 conspiracy to commit the murder of Burnett and then dropping the charge prior to jury deliberations. There is no indication, however, that the government had an improper motive for proceeding in the way that it did. Law enforcement’s investigation revealed Ball to be among those implicated in the plan to kill Burnett. Prior to trial, essential witnesses became unavailable, leading the government to conclude that it would be unable to prove the charge against Ball. Further, the jury did not receive a copy of the indictment until the conclusion of the case, so - 12 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. it never knew that Ba ll fac ed the char g e and, thus, c ould not have bee n prejudice d ag ainst Ba ll on that basis. VII. Clark’s indi ctm ent was n ot barre d by th e stat ute of limitat ions. We revie w the district court’s denial of Clark’s motion to dismiss de novo. See United States

v. Cunningham, 679 F.3d 355, 373 (6th Cir. 2012). The five-y ear statute of limit ations b egi n s running “only when the purposes of the conspirac y have either been acc omplished or abandone d.” United States v. Tocco, 200 F.3d 401, 425 n. 9 (6th Cir. 2000) (quoting United States v. Salerno, 868 F.2d 524, 534 ( 2d Cir. 1989)). Fur ther, A RI CO conspirac y char g e is not time ba rre d, even w here the individual defe ndant has not committed a predic ate act within the five -y ear limit ations period, wher e there is no sug g estion that the defe ndant withdrew f rom the conspira cy

at any time. United State s v. Saadey, 393 F.3d 669, 677-78 (6th Cir. 2005). Clark has offe red no evidenc e that he abandone d his involveme nt in the HMC’s criminal activities. Although he was no longe r national president a t the time, notes from a 2005 HMC meeting reve al t hat C lark was prese nt, revie wing a list of honorar y m em bers of the club. Additionally , Clark offe rs no arg ument that the second
superse ding indictment fails to re l at e b ac k to the orig inal. See United States v. Garcia, 268 F.3d 407, 414-16 (6th Cir. 2001) (super seding indictments might not rela te back for statute-of- limit ations
purposes when the char g es there in are materia lly broade ned from those in the previous indictment). Even if the second superse ding indictment did not rela te back to the first, howeve r, Clark’s arg ument still fails. The second superse ding indictment was filed on Dec ember 15, 2009. Clark’s documented

- 13 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. HMC activity within five y ear s of that date rende rs the char g es ag ainst him within the statute of limit ations. VIII. Suf fi cient evidence e xists to supp ort e ach Defendan t’s c onviction.
E ac h defe ndant challeng es hi s conviction based on the s ufficie ncy of t he evidence ag ains t him. I n considering such challeng es, “the rele vant question is w hether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia, 443 U.S. 307, 319 (1979). A. Nagi Nag i was convicted of multipl e counts, including violations of RI CO, conspirac y to violate RI CO, assault with a dang erous wea pon i n ai d of rac ketee ring , conspirac y to transport stolen
proper ty , conspira cy to alter vehicle identification numbers, conspirac y to possess with intent to distribute coca ine, and use of a firea rm in rela tio n to a crime of violence. He claims that the
go v er n m ent did not provide sufficient evidence to establish the enterprise element of R I CO. Th e RI CO statute define s “ente rprise” to include “any individual, partne rship, corpor ation, association,

or other leg al entity , and any union or g roup of individuals associate d in fa ct althoug h not a leg al entity .” 18 U.S.C. § 1961(4). F urther, the enter prise is an entity , for prese nt purposes a g roup of persons associate d toge ther fo r a co m m o n purpose of eng ag ing in a course of conduct

. . . . [This element] i s proved by evidenc e of an ong oing org anization, formal or informal, and by evidenc e that the var ious associates f unction as a c ontinuing unit.

- 14 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. United States v. T

u r kette, 452 U.S. 576, 583 (1981). And while there must be some structure to distinguish an enter

prise from a mere conspirac y , there does not have to be much. United States v. Johnson, 440 F.3d 832, 840 (6th Cir. 2006) (citing United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir. 1996)). The g overnme nt does not need to prove that the particula r defe ndant at issue committed

or ag ree d that he, himself, would commit two pr edica te acts, or even that any overt acts have been committed. Saadey, 393 F.3d 669, 676 ( 6th Cir. 2005). Specifica lly , Nag i relies on United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999), to support the proposition that the defe ndants wer e disparate drug deale rs and, there fore , did not form an
enter prise. Gibbs is distinguished easily , howeve r. Gibbs involved a g roup called the “Short North Posse” and their alleg ed conspirac y to monopoliz e the cra ck coca ine trade in a cer tain section of Columbus, Ohio. There , we found that the g overnme nt had failed to prese nt any specific evidenc e that the defe ndants ag ree d to participa te in a conspirac y . Gibbs, 182 F.3d at 423. Whil e some HMC

m em b er s t es t i fied that they and others in the org anization sold drug s “for themselves,” there was ample evidenc e from which a jury could have conclude d that the defe ndants actua lly committed the criminal acts in their ca

pacities as members of the HMC

. Also, unlike the S hort North P osse, t he HM C had a clea

rly define d hiera

rchy and held reg ular meeting s, supporting the notion that they

wer e, indee d, an ente rprise f or purpose s of RI CO. There was also sufficie nt evidenc e to satisfy the “continuity plus” require ment. See United States v. Fowl er, 535 F.3d 408, 419 (6t h Cir. 2008). This test require s a relationship betwee n the predic ate acts and a threa t of continued activity

. Id. at 419-20. “Predic ate acts do not nece ssarily need to be direc tly interre lated,” but “they must

. . . be connec ted to the aff airs and opera tions of the - 15 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. criminal enterprise.” Corrado, 227 F.3d at 554. The jury was well within reason to conclude that the HMC’s acts of violence were based on the group’s rivalries and loyalties, as well as protecting the reputation of the group itself. The theft of vehicles and alteration of VINs came about as the result of HMC “runs,” and drug dealing was widespread throughout the club and took place in the clubhouse. Additionally, there is no question that the racketeering acts presented a threat of continued activity. Ample evidence suggests that the predicates can be attributed to the defendants, operating as part of a long-term association which existed for criminal purposes. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 243 (1989) (continuity requirement is satisfied where predicate acts are a part of an ongoing entity’s “regular way of doing business”). The evidence belies the defendants’ suggestion that the group’s racketeering acts were sporadic, unrelated activities. Nagi also argues that there was insufficient evidence to support his conviction for Racketeering Act 8, Count 15 (conspiracy to transport stolen property in interstate commerce) and Count 16 (conspiracy to alter, remove, and obliterate vehicle identification numbers). In addition to the testimony of fellow HMC member Lou Fitzner, Burnett testified that HMC members, including Nagi, stole motorcycles in Myrtle Beach and transported them back to Michigan. Fitzner testified that Nagi worked with others to alter the serial number on a stolen motorcycle that Nagi stored in his garage. Based on the testimony of Fitzner and Burnett, rational jurors could have concluded that Nagi was guilty of the charges. Finally, Nagi contends that there was insufficient evidence to convict him of aiding and abetting under 18 U.S.C. § 924(c) use of a firearm during and in relation to a crime of violence in relation to the incident at the Wheat & Rye. To sustain a conviction under section 924(c), the - 16 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. government must prove “that the defendant, as the accomplice, associated and participated in the use of the firearm in connection with the underlying . . . crime.” United States v. Franklin, 415 F.3d 537, 554-55 (6th Cir. 2005). As the district court concluded, there was sufficient evidence from which a reasonable jury could have inferred that Nagi was inside the Wheat & Rye during the assault, that he knew Manners possessed a gun, and that he acted with the intent to assist or influence the commission of the underlying crime of assault with a dangerous weapon. Fitzner testified that Nagi told him that he was inside the Wheat & Rye during the assault. Officers responding to the scene observed Nagi and others speeding away from the bar and later observed a pistol on the ground near the parked vehicle. Nagi’s own statements to Bo Moore and Dennis Vanhulle, obtained through intercepted phone calls, further confirmed his involvement in the incident. This evidence is sufficient to support the verdict against Nagi. B. Cicchetti Cicchetti argues that there was insufficient evidence to convict him on Counts 7 (assault with a dangerous weapon in aid of racketeering) and 31 (use of a firearm during and in relation to a crime of violence) both based on the assault on Kirchoff at the Wheat & Rye Bar. As Cicchetti notes, a defendant cannot aid or abet a section 924(c) violation without knowing that a gun will be used or carried in relation to the underlying crime. See Wright v. United States, 182 F.3d 458, 465 (6th Cir. 1999). A reasonable juror could have determined that the government made this showing with respect to Cicchetti. Fitzner testified that Nagi told him that both he and Cicchetti were inside the Wheat & Rye when the shots were fired. Police officers identified Cicchetti, along with Nagi, inside a truck that was fleeing the scene. The intercepted phone calls between Nagi and his HMC - 17 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. confida nts confirme d that Cicchetti was an active participa nt in the Wheat & Ry e incident. Fur ther,
g iven the HMC’s pencha

nt f or violence, under these circ umstances, it was fair for the jury to inf er that Cicchetti was awa

re of and encour ag ed this pa rticular use of a firea

rm. I n his statement to the police, Kirchof

f stated that “a g roup of about ten people busted in” and he immediately started being hit f rom all sides. Following the attack, Kirchof f visited Bo Moore and told him, “Your boy s shot

at me; they jumped me and hit me with be er bottles a nd stuff.” I t w as within r eason for the jury to infer, ba sed on the e vidence prese nted, that Cicchetti was one of those who “busted in” a nd beg an hitting Kirchof

f with bottles. Acc ording ly , Cicchetti’s conviction on Count 7 also is suppor ted by sufficie nt evidence

. Cicchetti also arg ues t h at t h er e was insufficient evidence to support his convictions based

on Counts 2 (RI CO conspirac y ) and 19 (conspira cy to possess with intent to distribute less than one kilogr am of coca ine). As to the R I CO conspirac y , he contends that there was no evidenc e that he had a leade rship role in the HMC enter prise or that he was involved in the aff airs of the enter

prise. The rec ord contains ample evidenc e, howeve r, from which a jury could have found the elements of the crime satisfied. First, “RI CO liability is not limit ed to those with primary responsibility for the

enter prise’s aff

airs.” Ouwing a v. Benistar 419 Plan Servs., Inc., 694 F.3d 783, 791-92 (6th Cir. 2012). Rather, the defe ndant need only have participa ted in the manag ement or opera tio n o f the

enter prise. Id. at 792. Cicchetti’s manag ement role can be inferr ed based on his membership in the “committee,” as well as his two tenure s as Detroit Chapter President. There was ample evidenc e that he wa s involved in the aff airs of the enter

prise, including that of his involvement in the assault on Kirchof f, as well as his using and selling drug s with other HMC members. There was also sufficie nt - 18 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. evidenc e fro m wh i ch the jury could have conclude d that Cicchetti ag ree d that someone would commit at least two of t h e p re d i cate rac ketee ring acts alleg ed in the indictment. Testimony from Bur nett and Bur

ton reg arding Cicchetti’s drug use and sales in connec tion to the HMC supports the conclusion that he conspired to distribute controlled substances, as alleg ed in Racke teer ing Act 11. Fur ther, Bu rt o n t es t i fied that he distributed coca ine to Cicchetti and that he saw Cicchetti in possession of and using coca ine. Ba sed on this testimony , the jury rea sonably could have inferr ed that Cicchetti ag ree d that Bur ton, among others, would distribute coca ine, as alleg ed in Racke teer ing Act 9. Peters testified that Cicchetti boug ht a lot of drug s from him a nd that he would sell enoug h

to pay for them. Additionally , wireta pped phone conver sations betwee n Cicchetti and Nag i wer e prese nted, in which the two discussed coca ine. This evidenc e would have all o wed the jury to

co n clude that Cicchetti ag ree d to the conspirac y to distribute controlled substances alleg ed in R ac k et ee ri ng Act 11. Ba sed on the testimony of Nat Sanchez and L ou Fitzner, the jury al s o

rea sonably cou l d h av e conclude d that Cicchetti ag ree d that HMC members would beat and rob members of the L iberty Riders Motorcy cle Club, as alleg ed in Racke teer ing Act 7. For the rea sons alre ady discussed, there is sufficie nt evidenc e to support the jury ’s finding that Cicchetti is g uilty of Count 19, invol ving le ss than one kilog ram of c ocaine

. C. Ball Ba ll arg ues that beca

use he was mere ly involved in a “handf ul of ordinary b u y

/ sell drug

transac tions,” there was insufficient evidenc e to support his drug conspirac y convictions under Counts 19 and 20. Severa l witnesses testified as to Ba ll’s extensive drug dealing activities. Bur nett executed at least three controlled buy s of coca ine from Ba ll. Eac h buy was for about four and a half - 19 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. ounces of coca ine, which cost arou n d $3,400. Bur ton, a former HMC member, testified that Ba ll

was his competitor when it came to selling coca ine and that the two men had a phy sical alterc ation when Ba ll acc used Bur

ton of stealing one of his customers. I n April 2006, afte r executing a sear ch

war rant at Ba l l ’s home, ag ents seized 175.3 g rams of coca ine. Ba ll’s challeng e to his conspirac y conviction (Count 2) fa ils for the re asons alre ady g iven. Ba ll also arg ues that the g overnme nt did not establish that he participa ted in the “oper ation

or m anagem ent” of t he criminal enter prise for purposes of Count 1. See Reve s v. Ernst & Y

oung, 507 U.S. 170, 179 (1993). Howeve r, Ba ll was an important member of the HMC. He was an “honora ry ,” having achie ved senior status , and also was the president of the Detroit East Side Chapter and o p ened his own chapte r at Eig ht Mile. His principal role in stealing motorcy cles in My rtle B eac h also demonstrate s his key position i n the org anization’s illega l acts. Additionally , Ba ll contends that the trial co u rt er re d by failing to g rant his motion for a mistrial following a s p e c ta to r ’ s o u tb u

r s t d u r in g th e testimony of cooper ating witness Daniel Sanchez. During Sanchez’s testimony , a woman in the g allery stood up and alleg edly pointed in the direc tion of Ba ll and the other defe ndants, shouting, “they murdere d my son.” After the jury was excused, the specta tor informed the court t h at her outburst was motivated by her belief that Sanchez had been
g iven immunit y for the murder of her son, based on his testimony ag ainst the defe ndants. The trial judge is in the best position to evalua te the prejudicia l eff ect of a specta tor’s o u t b urst. See, e.g., Staton v. Parke, 12 F.3d 2 1 4 (6 t h Cir. 1993) (table) ; United States v. Brooks, 670 F.2d 148, 152 (11th Cir. 1982). I n this case , the district court immediately instructed the jurors to disreg ard the

statement and noted that the jurors nodde d their hea ds in unde rstanding

. I n the case of a specta tor - 20 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. outburst, a hear ing to deter mine jury impact is not nece ssarily require d. See W hite v. Smith, 984 F.2d 163, 166 (6th Cir. 1993)

. “This is pa rticularly true when, as in this case , the trial judge follows up with a statement to the jury , allay ing a ny appre hensions.” Id. at 166-67. At this point , signific ant

resour ces had been expended in try i n g t h e case , and the trial judge was within her discretion to deter mine that the defe ndants would not be prejudice d by the outburst. Fur ther, we find no merit in Ba ll’s arg uments reg arding his inability to c r o s s - e xa mine Sanchez about his involvement in a murder that was the subject of an ongoing investiga tion. After reje cting Ba ll’s motion in limine to crossexamine Sanchez reg arding the murder, the district court reje cted his second reque st to crossexamine following t h e s pecta tor outburst. The dist rict court adher ed to its previous rationale t hat under F eder al Rule of Evidence 608(b), evidenc e of the murder w as not probative of truthfulness. Fur ther, it rea soned, in the context of the outburst, cross-e x amining Sanchez about a murder the jury knew nothing ab o u t wo u l d be of no benef it to the defendants. The dist rict court did not abuse its d i s cr et i o n in restric ting the defe ndants’ ability to cross-e x amine Sanchez about the murder. See United States v. Franc o, 484 F.3d 347, 353 ( 6th Cir. 2007) (providing standard of revie w). D. Moore Moore arg ues that beca

use he was acquitted of the predic ate acts in t h e substantive RI CO count, he cannot be convicted for conspirac y to violate RI CO. L ike Ba ll , he also arg ues that the

ev idence was insufficient to show that he had a role in the “oper ation or manag ement of the

enter prise.” Rev es, 507 U.S. at 179. Howeve r, Moore was known a s the “g odfathe r” of the HMC and was likely the most power ful mem b er of the org anization. Trial testimony reve aled that all signific ant club decisions had to g o throug h him. As previously stated, it is not nece ssary that Moore - 21 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. committed the predicate acts himself. Rather, he is a conspirator because he agreed to facilitate acts leading to the substantive offense. See Saadey, 393 F.3d at 676. Moore routinely accepted gifts of narcotics for his own personal use from drug dealing HMC members. Based on the totality of the evidence, it was reasonable for the jury to infer that, while Moore might not have been on the street committing illegal acts himself, he was aware of and directing HMC members’ activities such that he was guilty of conspiring to violate RICO. E. Whiting Whiting argues that the government failed to present sufficient evidence to convict him on his four guilty counts racketeering, conspiracy to commit racketeering, conspiracy to commit murder in aid of racketeering, and possession of stolen vehicles. First, Whiting argues that there was no evidence demonstrating that he conspired to kill Burnett and that, rather, he was ambivalent about the situation. While there is no indication of an express command to “kill” Burnett, Whiting did say that Burnett “needed to go if anybody found him” and, at HMC meetings, if “anyone finds [Burnett], get his ass.” Considering the contemporaneous talk amongst the HMC and rival gang Latin Counts concerning the need to eliminate Burnett the “snitch” a jury could have reasonably inferred that Whiting agreed to murder Burnett. Whiting also argues that there was insufficient evidence to convict him of Count 47 (receipt and possession of stolen vehicles). Former HMC member McDonald testified, however, that club members had brought “quite a few” stolen bikes back from South Carolina and that Whiting showed him one, telling him that it was from Myrtle Beach. That particular bike did not have a motor on it, and Whiting said that he was going to “bring it out” after replacing the motor an act the HMC often - 22 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. did with stolen bikes. A reasonable jury could have inferred from this testimony, and other testimony about HMC members stealing bikes from Myrtle Beach, that Whiting had received a stolen motorcycle and that he was in the process of altering it when he showed it to McDonald. F. Clark Like Moore, Clark argues that his acquittal on Count 1 (substantive RICO charge) precludes a finding of guilty on Count 2 (conspiracy to violate RICO). To be convicted of conspiracy to commit RICO, the defendant must have “agreed to join a racketeering enterprise and [have] agreed to the commission of any two of the various predicate acts charged in the indictment.” Callanan v. United States, 881 F.2d 229, 235 (6th Cir. 1989). The defendant, however, does not have to agree that he will commit the predicate acts only that someone will commit at least two predicate acts. See United States v. Russo, 796 F.2d 1443, 1462 (11th Cir. 1986). While Clark was acquitted of both of the racketeering acts with which he was charged, there was sufficient evidence to support the jury’s conclusion that he agreed that someone would commit at least two of the racketeering acts alleged in Count 1 of the indictment. For example, while Clark was acquitted of Racketeering Act 9 (conspiracy to distribute cocaine), there is ample evidence from which the jury could have concluded that Clark agreed that other HMC members would distribute cocaine. The same can be said of Racketeering Act 11 (conspiracy to distribute controlled substances). While Clark was not charged with this act, the jury easily could have found that Clark agreed for other HMC members to commit it. The record reveals that Clark conspired with Sanchez and others to purchase cocaine and provide that cocaine to other HMC members often for sale/distribution to the general public. Additionally, Nagi and Ball shared drugs with the HMC leadership, and Clark held leadership - 23 -Nos. 11-1170, 11-1208, 11-1221, 11-1223, 11-1349, 11-1354

United States v. Nagi, et al. positions during the time of the conspiracy. Clark even brought his employees to the HMC clubhouse so that they could purchase cocaine. That, combined with the fact that HMC leadership condoned drug use and sales at the clubhouse is sufficient evidence from which the jury could have inferred that Clark had conspired with other HMC members to distribute controlled substances. See United States v. Driver, 535 F.3d 424, 429 (6th Cir. 2008) (formal agreement not required tacit understanding among the parties is sufficient for conspiracy). IX. Clark and Moore are entitled to a limited remand for resentencing on Count 2. All other Defendants’ sentences are proper. A. Nagi Under the United States Sentencing Guidelines (“USSG”), Nagi was assigned a range of 324- 405 months and sentenced to 324 months in prison. He argues that, in relation to his Count 2 RICO conspiracy conviction, he was incorrectly sentenced based on the conduct of his co-defendants. In examining the district court’s application of the Guidelines, we review factual findings for clear

error. See United States v. Hamilton, 929 F.2d 1126, 1130 (6th Cir. 1991). Whether the facts determined by the district court warrant the application of a particular guidelines provision is a purely legal question, however, and is reviewed de novo. United States v. Partington, 21 F.3d 714, 717 (6th Cir. 1994). USSG § 1B1.3(a)(1)(A) and (B) allows the court to take into account during sentencing “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” as well as “all reasonably foreseeable acts and omissions of

- 24 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. others” in the case of “jointly underta ken criminal activity .” The exis tence of rele vant conduct for calc ulating a base offe nse level is de termined by the court a t se ntencing by a preponde ranc e of the evidenc e. Corrado, 227 F.3d at 541-42. The district court eng ag ed in a leng thy and detailed analy sis

conce rning the conduct of other HMC members that was rele vant to deter mining Nag i’s base offe nse level. The court deter

mined that, beca

use of Nag i’s role of authority within the org anization, USSG § 1B1.3( a)( 1)(A) was satisfied. The rec ord indicates that the HMC was very transpar ent conce rning drug activity , crimes of violence, and theft, so Nag i rea sonably should have fore seen the acts of his cohorts. Acc ording ly , the di strict court did not err in sentenc ing Nag i based on t h e p re d icate acts committed by

others. B. Ball On a Guidelines rang e of 360 months t o l i fe , Ba ll rec eived a sentenc e of 360 months in prison. He ar gu es that the district court incorre ctly calc ulated his drug quantity and improperly enhanc ed his se ntence with a leade rship role pursuant to USSG § 3B1.1( a). He corr ectly contends that beca use t he dis trict court failed t o ask t he Bos t i c question, the reasonablene ss of hi s sentenc e is revie wed for abuse of discretion rathe r than plain err or. See United States v. Ross, 703 F.3d 856, 884-85 (6th Cir. 2012). The district court’s interpre tation of the Guidelines is revie wed de novo and its fac tual findi n gs are revie wed for clea r err or. Gall v. United States, 552 U.S. 38, 46 (2007). Review of whether a defe ndant had an “org anizer or leade rship role,” howeve r, is defe rential, in light of our de cision in United States v. W ashington, 715 F.3d 975, 982- 84 (6th Cir. 2013). Ba ll arg ues that he should not have been sentenc ed based on drug amounts attributed to his

co-c onspirators. Howeve r, a defe ndant is liable for quantities of drug s distributed by co-c onspirators - 25 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. provided such amounts are rea sonably fore seea ble to the defe ndant. United States v. Lloyd, 10 F.3d 1197, 1219 (6th Cir. 1993). D u r i n g B a l l ’ s s e n t e n c i n g h e a r i n g , t h e d i s t r i c t c o u r t d i s c u s s e d extensively the rea sons it assig ned him the drug quantity it did. The court applied the same analy sis that it had to Nag i and deter mined that the drug quantities tied to other conspirators constituted rele vant conduct for purposes of sentenc ing Ba ll. Fur ther, the district court noted that Ba ll had “an active leade rship role with r espec t to the distribution of controlled substances in the club” and that he was “one of the longe st time, old-time members, an honorar y member.” The court also found that “he was in a leade rship role in this club as president of the Eig ht Mile Chapter, and he cer tainly was in a leadership role and ex tremely active in the distributi on of all kinds of controlled substances.” As discussed with reg ard to Ba ll’s sufficie ncy -of- the-e vidence claim, the conclusions by the district

court a re suppor ted by the re cord. C. Whitin g Wit h a Guidelines rang e of 360 mont h s t o life, Whit ing was sentenc ed to 420 months impriso n m en t

. He arg

ues that the sentenc e was unrea sonable and that he should not have been

sentenc ed based on the acts of his co-c onspirators. Howeve r, the district court considere d the fac tors in 18 U.S.C. § 3553(a) and deter mined that a downwar d varia nce was not appropr iate. L ike the other defe ndants, Whit ing arg ues that he should not be held responsible for the drug traff icking of his coconspirator s. Th e d i strict court conducte d a rea soned analy sis, holding him acc ountable only for those acts that wer e fore seea ble to him. Whit ing was national president during much of the time at issue, and it was rea sonable for the district court to infer that Whit ing was involved in and fore saw the drug dealing activities of the Club. - 26 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. D. Moore On a Guidelines r ang e of life , Moore wa s sentence d to life in prison. I t is well established that “[o] ther than the fac t of a prior conviction, any fac t that incre ases the penalty for a crime bey ond the presc ribed statutory maxi mum must b e s ubmitted to a jury , and proved bey ond a rea sonable doubt.” Apprendi v. New J ersey , 530 U.S. 466, 490 (2000); see also Alley ne v. United States, 133 S. Ct. 2151, 2158 (2013). The statutory maxi mum for a violation of the RI CO statute i s t we n t y y ear s, unless the violation is based on a rac ketee ring activity for whi ch the maxi mum penalty includes life imprisonment. See 18 U.S.C. § 1963(a)

. Whil e Racke teer ing Acts 1, 2, 4, 6, 9, 11, and 13 are all violations for which the maxi mum pe nalty includes life, the jury never made any specia l finding s as to Moore’ s participa tion with these acts. Acc ording ly , he is entitled to a limit ed rema nd for r e-se ntencing with respec t to Count 2. See Corrado, 227 F.3d a t 542. E. Clark On a Guidelines rang e of 292-365 months in p ri s o n , Clark was sentenc ed to 292 months. Clark, like Moore, was convicted of conspirac y to violate RI CO, but acquitted of the substa n t i ve RI CO ch arg e. Be cause his sentenc e ex cee ds the s tatutory maxi mum of t wenty y ear s, like Moore, he is entitled to a limit ed rema nd for rese ntencing with respe ct to Count 2. Clark’s other arg uments
reg arding his sentenc e are without merit. For the rea sons alre ady discussed, the district court did not

err in concluding that Clark acte d as a leade r in the drug conspirac y and that he is liable for the acts of his co-c onspirators.

- 27 -Nos. 11-1170, 11-1208, 11- 1221, 11-1223, 11-1349, 11- 1354

United States v. Nagi, et al. X. Def endants’ convictions are AFFI RM ED

. Howeve r, beca use Moore and Clark rec eived

sentenc es g rea ter than the statutory maxi mum of twenty y ear s without a specia l finding by the jury , their judgme nts are REVERSED and REMAND ED to the district court for rese ntencing consistent with this opi nion.

- 28 -