PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

Nos. 17-2111, 17-3191, 17-3373, 17-3586, 17-3711, 

17-3777, 18-1012, 18-1324, 18-2468 and 19-1037

__________

UNITED STATES OF AMERICA

v.

JABREE WILLIAMS, 

a/k/a “MINUTE”

Appellant in 

No. 17-2111

ROLANDO CRUZ, JR.,

Appellant in 

No. 17-3191

MARC HERNANDEZ, 

a/k/a Marky D. 

Appellant in 

No. 17-3373

ROSCOE VILLEGA,

Appellant in 

No. 17-3586
2

EUGENE RICE,

also known as “B MOR”

Appellant in 

No. 17-3711

DOUGLAS KELLY,

Appellant in 

No. 17-3777

ANGEL SCHUEG, a/k/a “POCKO”

Appellant in 

No. 18-1012

MAURICE ATKINSON,

Appellant in 

No. 18-1324

ANTHONY SISTRUNK

a/k/a “KANYE”

Appellant in 

No. 18-2468

TYREE EATMON, a/k/a Ree,

Appellant in 

No. 19-1037

__________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D. C. Nos. 1-14-cr-00070-017:1-14-cr-0070-004;

1-14-cr-0070-001; 1-14-cr-00070-003;1-14-cr-00070-011;1-

14-cr-0070-002;1-14-cr-00070-012; 1-14-cr-00070-008; 1-

14-cr-00070-009;1-14-cr-00070-006)
3

District Judge: Honorable Yvette Kane

__________

Argued December 10, 2019

Before: RESTREPO, ROTH and FISHER, Circuit Judges.

(Filed: September 10, 2020)

Jonathan W. Crisp

Crisp & Associates

4031 North Front Street

Harrisburg, PA 17110

Counsel for Jabree Williams

Jeremy B. Gordon

Suite 106

1848 Lone Star Road

Mansfield, TX 76063

Counsel for Rolando Cruz, Jr.

Peter Goldberger [ARGUED]

50 Rittenhouse Place

Ardmore, PA 19003

Counsel for Marc Hernandez

Edson A. Bostic, Federal Public Defender

Tieffa N. Harper
4

Office of Federal Public Defender

800 King Street, Suite 200

Wilmington, DE 19801

Counsel for Roscoe Villega

G. Scott Gardner

2117 West 4th Street

Williamsport, PA 17701

Counsel for Eugene Rice

Richard F. Maffett, Jr

2201 North Second Street

Harrisburg, PA 17110

Counsel for Douglas Kelly

Terrence J. McGowan

Killian & Gephart

218 Pine Street

P.O. Box 886

Harrisburg, PA 17108

Counsel for Angel Schueg

John F. Yaninek [ARGUED]

Thomas Thomas & Hafer

305 North Front Street, 6th Floor

Harrisburg, PA 17101

Counsel for Maurice Atkinson

Daniel M. Myshin [ARGUED]

P.O. Box 33

Hummelstown, PA 17036

Counsel for Anthony Sistrunk
5

Andrew J. Shubin

333 South Allen Street

State College, PA 16801

Counsel for Tyree Eatmon

David Freed, United States Attorney

Michael A. Consiglio [ARGUED]

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

__________

OPINION OF THE COURT

__________

FISHER, Circuit Judge.

In mid-September 2014, a federal grand jury in the U.S. 

District Court for the Middle District of Pennsylvania returned 

an indictment of twenty-one men from the South Side neighborhood of York, Pennsylvania. All twenty-one were charged 

on counts of racketeering conspiracy, drug-trafficking conspiracy, and drug trafficking. Four were also variously charged 

with federal firearms offenses related to the alleged trafficking.

Although so called because of its geographic location in the 

city, South Side, the indictment alleged, had constituted since 

2002 the identity of a criminal enterprise associated through its 

upper echelons with the Bloods, a national street gang. At the 

heart of the enterprise, it was said, lay an extensive drug-traf-
6

ficking operation, conducted across a defined territory and nurtured in part through sporadic episodes of occasionally deadly

violence involving rival gangs, gang affiliates, and, collaterally, members of the general public.

Over the course of the ensuing year, several of the defendants pleaded guilty. Twelve, however, proceeded to a joint

trial, held over eight weeks from September to November

2015. The jury heard from well over one hundred witnesses, 

including some of the original twenty-one who chose to cooperate with the Government in the hope of a reduced sentence.

The picture that emerged was of lives characterized by cycles 

of crime and incarceration, stretching across more than a decade and punctuated by moments of significant and sometimes 

reckless violence. The witnesses depicted widespread drug 

dealing in crack cocaine and heroin. They told of territorial rivalries, market competition, and personal feuds. They recounted episodes of threat and retaliation, attack and retribution. But they also described friendship, loyalty, and loss; pride

and fear; ambition, and great ability left unrealized. In the end, 

all twelve defendants were convicted on one or more of the 

charges against them, and in the years thereafter were sentenced to, among other things, terms of imprisonment ranging 

from sixty months to life.

Ten of the twelve (the Defendants) now appeal their 

convictions and sentences on a variety of grounds, advanced 

both severally and collectively. These issues, which span more 

or less all the relevant phases of a criminal prosecution, can be 

divided into five categories. First, most of the Defendants contend that because the District Court’s closure of the courtroom 

to the public during jury selection violated their Sixth Amendment right to a public trial, their convictions should be reversed

and a new trial ordered under Federal Rule of Criminal Procedure 52(b). Second, two Defendants claim that the District 
7

Court’s in camera disposition of a challenge under Batson v. 

Kentucky, 476 U.S. 79 (1986), both violated their constitutional right to personal presence at all critical phases of their

criminal trial and was sufficiently prejudicial to warrant reversal of their convictions. Third, several Defendants bring evidentiary challenges. Two appeal the District Court’s denial of 

their motions to suppress evidence collected from their residences pursuant to search warrants. Still more Defendants assert various errors regarding the admission and use of evidence

at trial. Fourth, nearly all the Defendants contend that the evidence was insufficient to support one or more of the verdicts 

against them. These challenges ask us to clarify, among other 

things, the effect of our recent decision in United States v. 

Rowe, 919 F.3d 752 (3d Cir. 2019)—and thereby of the Supreme Court’s decision in Alleyne v. United States, 570 U.S. 

99 (2013)—upon our case law regarding the elements of a

drug-trafficking conspiracy under 21 U.S.C. § 846. Finally, all 

the Defendants appeal their sentences, principally alleging procedural defects in the District Court’s judgments.

For the reasons that follow, we will affirm the Defendants’ judgments of conviction. We will also affirm the judgments of sentence of Jabree Williams and Eugene Rice. But we 

will vacate either in whole or in part the other Defendants’

judgments of sentence, and remand the cases of Marc Hernandez and Angel Schueg for resentencing proceedings consistent 

with this opinion.
8

I. BACKGROUND

A. Investigation and Indictment

These cases began with an act of cooperative federalism.1 At the initiation of, and together with, local law enforcement, the federal Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF) conducted a multiyear investigation into 

drug trafficking and violence in the city of York, Pennsylvania.

The investigation centered on what the Government called “the 

Southside Gang,” after the neighborhood in which it was said 

to operate. Over the first decade of the current century, York 

law enforcement officials perceived in the city a pattern of escalating violence that they attributed primarily to a rivalry between the South Side and Parkway, another supposed gang, 

named for a public housing project in the northern part of York.

The Government associated this violence, which also occasionally involved other neighborhood groups, with the widespread drug trafficking throughout the South Side. It was believed that the principal sources of these drugs—and concomitantly of the increased violence—were individuals affiliated 

with the Bloods, who had developed the South Side’s existing 

drug trafficking into a more organized operation.

Legal proceedings began in mid-March 2014, when a 

grand jury in the Middle District of Pennsylvania returned an 

indictment of three men, Hernandez, Roscoe Villega, and 

Douglas Kelly, charging them on counts of drug-trafficking 

conspiracy and drug trafficking. Shortly thereafter, govern1 We provide here a broad overview of the cases’ factual and 

procedural background, with particular attention to the five categories of issues described above. More detailed factual description will be provided where relevant in Parts II-VI below.
9

ment officials obtained and executed search warrants for several locations across York, seizing (among other things) drugs, 

drug paraphernalia, cellphones, and money. Some of this evidence, as well as some seized later, became the subject of an 

ongoing contest between the parties. Hernandez, Villega, and 

Kelly all pleaded not guilty, but before they could proceed to 

trial, a superseding indictment added Rolando Cruz, Jr. to the 

list of defendants and supplemented the drug counts with two 

federal firearms charges. Cruz also pleaded not guilty, but yet 

again, before a trial could occur, matters developed further.

In September, the grand jury returned a second superseding indictment that vastly expanded the scope and ambition

of the prosecution. The indictment now listed twenty-one defendants, including the original four. It charged all twenty-one

on three counts: (I) conspiracy to violate 18 U.S.C. § 1962(c) 

of the Racketeer Influenced and Corrupt Organizations Act 

(RICO), 18 U.S.C. § 1962(d); (II) conspiracy to distribute a

controlled substance, 21 U.S.C. § 846; and (III) distribution of 

a controlled substance, 21 U.S.C. § 841(a). Counts II and III

specified drug quantities of 5 kilograms or more of powder cocaine, and 280 grams or more of crack cocaine.

2 Distribution 

at these quantities carries increased penalties. See 21 U.S.C. 

§ 841(b)(1)(A). The indictment also included vestiges of its 

earlier iterations: three additional firearms charges against 

Cruz, Hernandez, Villega, and Kelly. Counts IV and V variously charged Hernandez and Cruz with the use of a firearm in 

2 The statutory term “cocaine base,” 21 U.S.C. 

§ 841(b)(1)(A)(iii), (b)(1)(B)(iii), encompasses but is not limited to crack cocaine, covering all forms of “cocaine in its 

chemically basic form.” DePierre v. United States, 564 U.S. 

70, 89 (2011). Because we are concerned here specifically with 

crack, however, we will refer simply to it.
10

relation to or in furtherance of a drug-trafficking crime, 18 

U.S.C. § 924(c).

3 And Count VI charged Cruz, Hernandez, Villega, and Kelly4 under 18 U.S.C. § 924(o)—conspiracy to violate § 924(c).

B. Jury Selection

One year later, in September 2015, twelve of the 

twenty-one defendants proceeded to a consolidated trial before 

the Honorable Yvette Kane. On Friday, September 18, with 

jury selection set to begin the following Monday, the District 

Court issued a series of orders related to the upcoming voir 

dire. See D. Ct. Dkt. Nos. 733-40. One such order stated:

AND NOW, on this 18th day of September, 

2015, IT IS HEREBY ORDERED THAT due to 

courtroom capacity limitations, only (1) court 

personnel, (2) defendants, (3) trial counsel and 

support staff, and (4) prospective jurors shall be 

allowed in the courtroom during jury selection. 

No other individuals will be present except by 

express authorization of the Court.

App. 10.5 Other than the concern with “courtroom capacity 

limitations,” there is no further indication in the record of the 

3 The District Court later dismissed Count IV on the Government’s motion at the conclusion of its case in chief.

4 Also on the Government’s motion at the end of its case in 

chief, the District Court dismissed Count VI as to Villega and 

Kelly.

5 All references to the Appendix simpliciter are to three consecutively paginated appendices: Volumes I and II of the Hernandez Appendix (pages 1-295), the Government’s Supplemental Appendix in Rice’s case (pages 296-6902), and the Villega Appendix (pages 6903-7018).
11

District Court’s rationale for conditionally barring the public 

from the jury-selection proceedings. There is also no evidence 

of an objection to the order by either the prosecution or the defense, nor is there any evidence of a news organization or other 

member of the public either seeking the District Court’s “express authorization” or being turned away by court officials after attempting to attend the proceedings.

Jury selection lasted for two days, concluding on Tuesday, September 22. During the process, Cruz’s trial counsel,

Michael Wiseman, brought a Batson challenge to the Government’s first peremptory strike of a prospective juror. The District Court heard the objection in chambers rather than in the 

courtroom itself, announcing its decision to do so in open 

court. The District Court ultimately ruled that the Government’s strike was not motivated by purposeful discrimination.

After the hearing, several defense counsel, led by John Yaninek, counsel for Maurice Atkinson, objected to the District 

Court’s decision to hear the challenge out of open court. The 

District Court provided a detailed description of the hearing 

and the reasons for its ruling, and Yaninek pursued the objection no further at the time. All defense counsel thereafter professed themselves satisfied with the jury members, who were

duly sworn.

The trial commenced the next day, September 23, 2015. 

It appears that all other proceedings were open to the public.

C. Trial

The Government’s theory was that the defendants’ identification with the South Side constituted a continuing, willful

participation in a criminal enterprise. The defense generally 

countered that, despite the illegal activity that undoubtedly occurred, expressions of a South Side identity reflected at most a 

kind of autochthonous pride, a loyalty borne of a common 
12

home, and did not amount to the existence of a South Side gang 

or criminal organization.

Witnesses depicted widespread drug trafficking that 

was organized, or at least differentiated, according to street 

blocks. Each block had a group, or “crew,” of individuals who 

would “affiliate with each other,” chiefly through selling 

drugs, and in particular crack cocaine. App. 1523. Some crews’ 

operations were more organized or structured, but a person 

from any of the crews could, without incident, sell drugs 

throughout the South Side. The most prominent of these groups

was located at Maple and Duke Streets, near what was called 

the Jungle—an area formed by four streets, George, Queen, 

South, and Maple, with Duke running through it. The Maple 

and Duke crew was said to be made up largely of an older generation of South Side drug dealers. At various points, witnesses 

associated Rice, Schueg, Atkinson, Anthony Sistrunk, and 

Tyree Eatmon with Maple and Duke, while Williams was said

to be part of another crew, Maple and Manor. By contrast, witnesses described Cruz, Hernandez, and Kelly as principally 

distributors of crack to street-level dealers. Villega was identified as an associate of Cruz and Hernandez who dealt in crack 

and heroin.

Together with the descriptions of drug trafficking were 

accounts of episodic violence. Members of the crews would 

carry or store away firearms for protection, and they would often retaliate when a fellow South Side member was attacked. 

These episodes frequently involved individuals from Parkway, 

who were described as rivals, but also occasionally other persons. Witnesses recalled, among other incidents, reprisals for 

the wanton killing of a nine-year-old girl, Ciara Savage, on 

Mother’s Day in 2009, a violent altercation between South 

Side and Parkway members at a gas station and store named 

Rutter’s, and the severe beating and eventual murder of a man 
13

in the parking lot of a York restaurant called MoMo’s. Such

episodes, the Government charged, were overt acts in furtherance of the criminal enterprise, reflecting among other things 

the preservation of territory and reputation. In general, the defense sought to present these acts of violence as the product of 

personal feuds, rather than as indicative of a commitment to a 

larger operation.

D. Verdicts and Sentencing

The jury returned its verdicts on November 16, 2015, 

announcing them seriatim, with only the relevant defendant 

present. All twelve defendants were found guilty on one or 

more of the counts against them. They were subsequently sentenced to various periods of incarceration and ordered to pay 

certain fines and costs.

The convictions and sentences of imprisonment of the 

ten Defendants who have appealed to our Court are as follows:

• Williams: Convicted on Count III; sentenced to 60 

months of imprisonment.6

• Cruz: Convicted on Counts I, II, III, V, and VI; sentenced to life terms of imprisonment on Counts I-III, 

5 years on Count V, and 20 years on Count VI. The 

terms on Counts I-III and VI are concurrent; the term 

on Count V is consecutive to those sentences.

• Hernandez: Convicted on Counts I, II, III, V, and VI; 

sentenced to life terms of imprisonment on Counts 

I-III, 20 years on Count VI, and 60 months on Count 

V. The terms on Counts I-III and VI are concurrent; 

the term on Count V is consecutive to the other sentences.

6 Williams’s conviction on Count III was for 28-280 grams of 

crack cocaine and some marijuana.
14

• Villega: Convicted on Counts I, II, and III; sentenced to 300 months in prison on each count, to be 

served concurrently.

• Rice: Convicted on Counts II and III; sentenced to 

200 months in prison on each count, to be served 

concurrently.

• Kelly: Convicted on Counts I, II, and III; sentenced 

to life terms of imprisonment on each count, to be 

served concurrently.

• Schueg: Convicted on Counts II and III; sentenced 

to 165 months in prison on each count, to be served 

concurrently.

• Atkinson: Convicted on Counts I, II, and III; sentenced to life terms of imprisonment on each count, 

to be served concurrently.

• Sistrunk: Convicted on Counts I, II, and III; sentenced to 360 months in prison on each count, to be 

served concurrently.

• Eatmon: Convicted on Counts I, II, and III; sentenced to 260 months in prison on each count, to be 

served concurrently.

On appeal, these Defendants raise numerous issues, described 

above, touching their convictions and sentences.

7 We have jurisdiction to resolve these issues under 28 U.S.C. § 1291 and 

7 While these appeals were pending, on several occasions our 

Clerk’s Office encouraged the Defendants to adopt, pursuant 

to Federal Rule of Appellate Procedure 28(i), portions of already-filed briefs rather than raise and argue duplicative issues. 

We appreciate that the Defendants followed those suggestions, 

but we have also made clear that general statements of adoption under Rule 28(i) will not be regarded. We will not serve 
15

18 U.S.C. § 3742(a).8

II. THE PUBLIC-TRIAL ERROR

We begin with the District Court’s closure of the courtroom to the public during jury selection. Because a ruling for 

the Defendants on this issue would entail a reversal of their

convictions and remand for a new trial, we confront this question at the outset. For the reasons that follow, we will not exercise our discretion to correct the error.

A. Our Review Is for Plain Error

Review of a constitutional error of criminal procedure

is at bottom a matter of rights and remedies: whether a constitutional right has been violated, and whether a remedy shall be

provided for that violation. The District Court’s closure of the 

courtroom undoubtedly violated the Defendants’ Sixth 

Amendment right to public trial, Presley v. Georgia, 558 U.S. 

209, 213 (2010) (per curiam), and under Supreme Court precedent that sort of violation is a “structural” error, see Arizona 

v. Fulminante, 499 U.S. 279, 310 (1991) (citing Waller v. 

Georgia, 467 U.S. 39, 49 n.9 (1984)). Ordinarily contrasted 

with constitutional errors subject to “harmless-error analysis,”

Fulminante, 499 U.S. at 306, this category represents “a limited class of fundamental constitutional errors that,” Neder v. 

as a Defendant’s lawyer, “scour[ing] the record” for him and 

determining “which of the many issues of his codefendants 

[are] worthy of our consideration.” United States v. Fattah, 914 

F.3d 112, 146 n.9 (3d Cir. 2019). We will resolve only those 

issues specifically and explicitly identified by each Defendant, 

noting where relevant a Rule 28(i) adoption. All else results in 

“abandonment and waiver.” Id.

8 The District Court had jurisdiction under 18 U.S.C. § 3231.
16

United States, 527 U.S. 1, 7 (1999), by their very nature, “affect substantial rights” and so cannot be “disregarded,” Fed. R. 

Crim. P. 52(a). As a result, in determining the availability of a 

remedy, no further inquiry may be necessary beyond the fact 

of the violation itself: the injured parties are entitled to “automatic reversal.” Neder, 527 U.S. at 7.

Yet the Federal Rules of Criminal Procedure also distinguish between preserved and unpreserved errors. A party 

can invoke Rule 52(a) on appeal only if he timely objected to 

the error, thus giving the district court the opportunity to rectify, or at least respond to, the purported problem. See Fed. R. 

Crim. P. 51(b) (describing the procedure for contemporaneous 

objection). If the Defendants had done so here, and the District 

Court responded inadequately, then they would indeed be entitled to a new trial. But they did not object; and regardless of 

the nature of the error, in direct appeals from judgments of conviction in the federal system, when there is no contemporaneous objection in the district court, our review must be for plain 

error under Federal Rule of Criminal Procedure 52(b). Johnson 

v. United States, 520 U.S. 461, 466 (1997).

A federal appellate court’s authority to remedy an unpreserved error “is strictly circumscribed.” Puckett v. United 

States, 556 U.S. 129, 134 (2009). Following the text of Rule 

52(b), the Supreme Court has described a four-part inquiry for 

plain-error review. There must: (1) be an “error” that (2) is 

“plain” and (3) “affects substantial rights.” United States v. 

Olano, 507 U.S. 725, 732 (1993) (alteration omitted) (quoting 

Fed. R. Crim. P. 52(b)). If these three conditions are satisfied, 

then it is “within the sound discretion of the court of appeals” 

to correct the forfeited error—but only if (4) “the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” Id. (alteration omitted) (quoting United 

States v. Young, 470 U.S. 1, 15 (1985)). “Meeting all four 
17

prongs is difficult, as it should be.” Puckett, 556 U.S. at 135 

(internal quotation marks omitted). In this appeal, the Government concedes that the District Court committed an error, and 

that the error is plain. The dispute concerns Olano’s third and 

fourth prongs.

B. Olano Prong Three

“[I]n most cases,” for an unpreserved error to affect substantial rights it “must have been prejudicial”—that is, “[i]t 

must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. The defendant ordinarily has the 

burden of showing “a reasonable probability that, but for the 

error claimed, the result of the proceeding would have been 

different.” United States v. Dominguez Benitez, 542 U.S. 74, 

82 (2004) (alteration omitted) (quoting United States v. Bagley, 

473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)). However, the Court in Olano also acknowledged that “[t]here may 

be a special category of forfeited errors that can be corrected 

regardless of their effect on the outcome.” 507 U.S. at 735.

Hernandez urges us not only to associate this “special category” with structural error, but also to give the error here the 

same effect it would have in the Rule 52(a) context—automatic 

reversal of the convictions. We cannot accept this argument.

The Supreme Court has never held that Olano’s “special 

category” includes or is the same as that of structural error. It 

therefore remains at least unclear whether a structural error 

ipso facto satisfies Olano’s third prong. The Court has consistently acknowledged but declined to address this possibility.

See United States v. Marcus, 560 U.S. 258, 263 (2010); Puckett, 556 U.S. at 140-41; United States v. Cotton, 535 U.S. 625, 

632-33 (2002); Johnson, 520 U.S. at 469; see also Dominguez 

Benitez, 542 U.S. at 82 (suggesting that Olano’s third prong 

should be treated as “[]tethered to a prejudice requirement” in 
18

cases of “nonstructural error”). We too find it unnecessary to 

take that doctrinal leap here. Because, as detailed below, a federal appellate court’s evaluation of Olano’s fourth prong is independent of whether the third has been satisfied, and the District Court’s error in this case did not “seriously affect the fairness, integrity or public reputation of judicial proceedings,”

Olano, 507 U.S. at 736, we do not need to decide whether the

error also affected the Defendants’ substantial rights.9

C. Olano Prong Four

1. Structural Error Generally

The fact that a type of error has been deemed “structural” has no independent significance for applying Olano’s 

fourth prong. In all direct appeals arising in the federal system, 

“the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal 

Procedure.” Johnson, 520 U.S. at 466. Rule 52(b) states that a 

court “may” consider “[a] plain error that affects substantial 

rights.” If Olano’s first three prongs are satisfied, the court of 

appeals has the “authority” to notice the error, “but is not required to do so.” Olano, 507 U.S. at 735. “[A] plain error affecting substantial rights does not, without more, satisfy” 

Olano’s fourth prong. Id. at 737. Thus, even if we accepted that 

9 Our dissenting colleague would presume prejudice given the 

nature of the error at issue here. See Dissenting Op. at III.A. 

We emphasize that in declining to conduct an inquiry at prong 

three, we intend no suggestion that the present error, or any 

structural error, does not warrant a presumption of prejudice. 

Our conclusion at prong four simply renders a decision on that 

question unnecessary, and we will not go out of our way to 

make new law. The dissent, by contrast, must address prong 

three because of its contrary conclusion at prong four.
19

a structural error necessarily affects substantial rights, our decision would still be an exercise of discretion, calling for an

independent inquiry on the fourth prong.10

Nevertheless, although a structural error is not to be

given automatic effect in the Rule 52(b) context, the same considerations that in other contexts render its correction automatic may coincide with the appropriate exercise of judicial 

discretion to notice an unpreserved error. A structural defect is 

an error “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” 

Fulminante, 499 U.S. at 310. When such an error occurs over 

a contemporaneous objection, the trial “cannot reliably serve 

its function as a vehicle for determination of guilt or innocence, 

and no criminal punishment may be regarded as fundamentally 

fair.” Id. (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).

The origins of Rule 52(b) lie in the recognition that “if a plain 

error was committed in a matter so absolutely vital to defendants,” the reviewing court is “at liberty to correct it.” Wiborg 

v. United States, 163 U.S. 632, 658 (1896). When the error 

threatens “the fair and impartial conduct of the trial,” the fact 

that it was not raised contemporaneously “does not preclude 

[the appellate court] from correcting [it].” Brasfield v. United 

States, 272 U.S. 448, 450 (1926). As the Supreme Court said

in its most recent case on this issue, “the public legitimacy of 

our justice system relies on procedures that are neutral, accu10 It is true, as Hernandez points out, that our Court has in the 

past “assume[d]” in dictum that a structural error “would constitute per se reversible error even under plain error review.” 

United States v. Syme, 276 F.3d 131, 155 n.10 (3d Cir. 2002). 

Yet we are not bound by that statement, and it is in any event 

contrary to the Supreme Court guidance just detailed.
20

rate, consistent, trustworthy, and fair, and that provide opportunities for error correction.” Rosales-Mireles v. United States, 

138 S. Ct. 1897, 1908 (2018) (internal quotation marks omitted).

Therefore, even when confronting a structural error, a 

federal court of appeals should evaluate the error in the context 

of the unique circumstances of the proceeding as a whole to 

determine whether the error warrants remedial action. See id.

at 1909 (“[A]ny exercise of discretion at the fourth prong of 

Olano inherently requires ‘a case-specific and fact-intensive’ 

inquiry.” (quoting Puckett, 556 U.S. at 142)). The very nature 

of the error may warrant a remedy in the ordinary case, id. at

1909 n.4, and actual innocence is dispositive, Olano, 507 U.S. 

at 736, but these are not the same as automatic reversal. In all

direct appeals from a criminal conviction in the federal system, 

the discretion contemplated by Rule 52(b) is to be preserved.

2. Public-Trial Error Specifically

This conclusion receives additional support from our 

own and the Supreme Court’s case law on violations of the 

Sixth Amendment right to a public trial.

The presence of a contemporaneous objection is an important reason why violations of that right were deemed structural error. As early as 1949—in a case, like the present ones,

from the Middle District of Pennsylvania—our Court reversed 

a criminal conviction and remanded for a new trial due to a 

Sixth Amendment public-trial violation. United States v. Kobli, 

172 F.2d 919, 924 (3d Cir. 1949) (en banc). In doing so, we

held “that the Sixth Amendment precludes the general indiscriminate exclusion of the public from the trial of a criminal 

case in a federal court over the objection of the defendant.” Id.

at 923 (emphasis added). Further, in a later case we maintained 

that “a defendant who invokes the constitutional guarantee of 
21

a public trial need not prove actual prejudice” on appeal.

United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d 

Cir. 1969) (en banc).

The Supreme Court has expressed similar sentiments. 

Like Rundle, Waller concerned a Sixth Amendment challenge 

to a state trial court’s closure of a suppression hearing. Under 

its First Amendment precedent, the Court noted, “the right to 

an open trial” is generally, but not absolutely, paramount. Waller, 467 U.S. at 45 (citing, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). To justify a closure, there 

must be “an overriding interest that is likely to be prejudiced, 

the closure must be no broader than necessary to protect that 

interest, the trial court must consider reasonable alternatives to 

closing the proceeding, and it must make findings adequate to 

support the closure.” Id. at 48. Waller extended this framework 

to the Sixth Amendment, holding “that under the Sixth Amendment any closure of a suppression hearing over the objections 

of the accused must meet the tests set out in Press-Enterprise 

and its predecessors.” Id. at 47 (emphasis added). The Court

later applied this standard to a state court’s closure of jury selection to the public. Presley, 558 U.S. at 213. As in Waller, 

defense counsel had objected contemporaneously. Id. at 210. 

Under these cases, then, a violation of the right to a public trial

is a reversible error when a party lodges a contemporaneous 

objection and the trial court fails to articulate the interest behind the closure or to make the appropriate findings.

The Supreme Court’s first consideration of a Sixth 

Amendment public-trial violation in the absence of a contemporaneous objection came in Weaver v. Massachusetts, 137 S. 

Ct. 1899 (2017). Yet that case arose not under Rule 52(b), but 

rather in a state collateral proceeding, on a claim of ineffective 

assistance of counsel. The Court held that, in this context, the 

proper standard to apply is the familiar one under Strickland v. 
22

Washington, 466 U.S. 668 (1984). See 137 S. Ct. at 1910-12. 

While the Sixth Amendment public-trial right “is important for 

fundamental reasons,” the Court explained, “in some cases an 

unlawful closure might take place and yet the trial still will be 

fundamentally fair from the defendant’s standpoint.” Id. at 

1910. This reality underlines the importance of a contemporaneous objection, which gives the trial court “the chance to cure 

the violation either by opening the courtroom or by explaining 

the reasons for closure.” Id. at 1912. The Court also noted that 

“when state or federal courts adjudicate errors objected to during trial and then raised on direct review, the systemic costs of 

remedying the error are diminished to some extent.” Id. By 

contrast, an ineffective-assistance-of-counsel claim first raised 

in postconviction proceedings “‘can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,’ thus undermining the finality of jury verdicts.” 

Id. (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). 

The Court concluded that Weaver had not carried his burden to 

show either that he had been prejudiced or that the trial was 

rendered fundamentally unfair. Id. at 1913.

Our principal question must be whether and how 

Weaver’s analysis in the collateral-review context informs

plain-error review of public-trial violations. The conclusion 

that not every public-trial violation results in fundamental unfairness supports the particularized inquiry described above. 

And while the concern with the finality of judgments might ostensibly distinguish Weaver’s context from the present one, it 

is nevertheless true that reversal for an error raised for the first 

time on direct review carries its own “systemic costs.” The 

unique considerations raised by appeal on an unpreserved error

should not be disregarded simply because of the nature of the 

error. They may be overcome, but not disregarded. See Puckett, 
23

556 U.S. at 135 (“We have repeatedly cautioned that any unwarranted extension of the authority granted by Rule 52(b) 

would disturb the careful balance it strikes between judicial efficiency and the redress of injustice.” (alteration and internal 

quotation marks omitted)); United States v. Atkinson, 297 U.S. 

157, 159 (1936) (observing that the practice of not correcting 

unpreserved errors is in part “founded upon considerations . . . 

of the public interest in bringing litigation to an end after fair 

opportunity has been afforded to present all issues of law and 

fact”).

In sum, both our own and the Supreme Court’s jurisprudence on the Sixth Amendment right to a public trial support

the application here of the “case-specific and fact-intensive inquiry” that a federal appellate court is normally to conduct under Olano’s fourth prong. Rosales-Mireles, 138 S. Ct. at 1909

(internal quotation marks omitted).

3. The Legal Standard

Given the relative novelty of a public-trial error reviewed under Rule 52(b), our inquiry must look to general 

principles discernible in our own and the Supreme Court’s case 

law on Olano’s fourth prong and its antecedents. Because 

“each case necessarily turns on its own facts,” an appellate 

court’s exercise of discretion is properly based on its evaluation of which result would most “promote the ends of justice.” 

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 240 

(1940). In conducting this evaluation, the Court has frequently

weighed the costs to the fairness, integrity, and public reputation of judicial proceedings that would result from allowing the 

error to stand with those that would alternatively result from 

providing a remedy. We will adopt this standard here.

First, in determining the costs of inaction, the Supreme 

Court has focused chiefly upon the error’s effect on the values 
24

or interests protected by the violated right. For example, at 

stake in Rosales-Mireles—which involved a Sentencing 

Guidelines calculation error—was the defendant’s liberty, and 

an error “reasonably likely to have resulted in a longer prison 

sentence than necessary” sufficiently compromised that interest to advise correction. 138 S. Ct. at 1910. A reasonable citizen, the Court noted, would “bear a rightly diminished view of 

the judicial process and its integrity” if the error were allowed 

to stand. Id. at 1908 (quoting United States v. Sabillon-Umana, 

772 F.3d 1328, 1333-34 (10th Cir. 2014)); see also United 

States v. Dahl, 833 F.3d 345, 359 (3d Cir. 2016).

Similarly, in other contexts, the Court has looked to the 

error’s effect on the jury’s verdict. In Cotton and Johnson, the 

interests underlying the right at issue11 were not so compromised that correction was warranted—in each case, notwithstanding the error, the evidence supporting conviction was 

“overwhelming” and “essentially uncontroverted.” Cotton, 

535 U.S. at 633; Johnson, 520 U.S. at 470; see also United 

States v. Vazquez, 271 F.3d 93, 105-06 (3d Cir. 2001) (en

banc). Likewise, in Young, the harmful effects of a prosecutor’s inappropriate statements—a violation of his “duty to refrain from overzealous conduct,” 470 U.S. at 7—were sufficiently “mitigated,” both by improper statements of defense 

counsel and by “overwhelming evidence,” id. at 16-19.

Evaluation of the degree to which an error has compromised the violated right’s underlying values or interests does 

not, however, necessarily reduce to a determination of whether 

11 A criminal defendant is entitled to “a jury determination that 

[he] is guilty of every element of the crime with which he is 

charged, beyond a reasonable doubt.” Apprendi v. New Jersey, 

530 U.S. 466, 477 (2000) (alteration in original) (quoting 

United States v. Gaudin, 515 U.S. 506, 510 (1995)).
25

the error likely altered the outcome of the proceeding. Though 

a “court of appeals should no doubt correct a plain forfeited 

error that causes the conviction or sentencing of an actually innocent defendant,” the Supreme Court has “never held that a 

Rule 52(b) remedy is only warranted in cases of actual innocence.” Olano, 507 U.S. at 736 (emphasis in original); see also

Rosales-Mireles, 138 S. Ct. at 1906. In cases predating Cotton, 

Johnson, and Young, for example, the Court held that the error

at issue sufficiently compromised the fairness and impartiality 

of the trial that correction was justified. See Brasfield, 272 U.S. 

at 450; Clyatt v. United States, 197 U.S. 207, 222 (1905). At 

the same time, apart from cases of actual innocence, an altered 

outcome does not in itself necessitate correction of the error. In 

Rosales-Mireles, the Court allowed that “countervailing factors [could] satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved 

absent correction,” though it did not elaborate on what such 

factors might be, concluding only that none existed in the case 

before it. 138 S. Ct. at 1909.

Second, against these considerations of the costs of inaction, the Court has weighed the costs to the fairness, integrity, and public reputation of judicial proceedings that would 

alternatively result from noticing the error. In Rosales-Mireles,

the Court noted “the relative ease of correcting the error,” id.

at 1908, commenting that “a remand for resentencing, while 

not costless, does not invoke the same difficulties as a remand 

for retrial does,” id. (quoting Molina-Martinez v. United States, 

136 S. Ct. 1338, 1348-49 (2016)); see also United States v. 

Williams, 399 F.3d 450, 456 (2d Cir. 2005) (“A legal system 

seeks to protect rights, but it also takes into account the costs 

in time, resources, and disruption in the lives of participants . . 

. that result when a case must be tried a second time.”). And in 

Cotton and Johnson, the Court perceived “[t]he real threat . . .
26

to the fairness, integrity, and public reputation of judicial proceedings” to be if the error were corrected “despite the overwhelming and uncontroverted evidence that” the outcome of 

the proceeding would have been the same regardless. Cotton, 

535 U.S. at 634 (internal quotation marks omitted); see also 

Johnson, 520 U.S. at 470.

4. Application and Resolution

Applying this standard, we conclude that the District 

Court’s error does not warrant reversal of the Defendants’ convictions and remand for a new trial.

12

First, the costs of inaction, while not negligible, do not 

rise to the level recognized in other cases where a remedy has 

been provided. The Sixth Amendment’s public-trial guarantee 

is “for the benefit of the accused.” Waller, 467 U.S. at 46 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). It 

is a means of ensuring the fairness of the trial—“that the presence of interested spectators may keep [the defendant’s] triers 

keenly alive to a sense of their responsibility and to the importance of their functions.” Id.; see also United States v. Lnu, 

575 F.3d 298, 305 (3d Cir. 2009) (“The knowledge that every 

criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse 

12 We acknowledge that one of our sister circuits has reached a 

different conclusion. See United States v. Negrón-Sostre, 790 

F.3d 295, 306 (1st Cir. 2015). However, that case was decided

prior to Weaver and Rosales-Mireles, and it relied in part upon 

circuit precedent that Weaver subsequently abrogated. See id.

(stating that Owens v. United States, 483 F.3d 48 (1st Cir. 

2007), “guides our analysis”); see also Lassend v. United 

States, 898 F.3d 115, 122 (1st Cir. 2018) (acknowledging 

Weaver’s abrogation of Owens).
27

of judicial power.” (quoting Gannett, 443 U.S. at 380)). More 

broadly, public access to trial proceedings helps sustain public 

confidence that standards of fairness are being observed. See 

Press-Enterprise, 464 U.S. at 509.

The District Court’s September 18 order stated that, 

“due to courtroom capacity limitations,” only court personnel, 

defendants, trial counsel and support staff, and prospective jurors would be allowed in the courtroom during jury selection.

App. 10. All other individuals could be present only “by express authorization of the Court.” Id. As noted above, the record gives no further indication of the District Court’s rationale 

for issuing the order. There is no evidence that any party or 

member of the press or public objected to the order, nor is there 

any evidence of an individual or news organization either seeking authorization from the District Court or being turned away 

after attempting to attend the proceedings. Jury selection ultimately lasted only two days, September 21 and 22, with the

trial beginning on September 23. All other proceedings were 

open to the public, and a transcript of the jury voir dire was 

later made available.

Even on this sparse record, there are facts that suggest 

some costs should the error remain uncorrected. The closure 

order came from the District Court itself and extended across 

an entire phase of the trial. The Court apparently issued the order unprompted, and there is no indication that it—albeit without objection to the order by the parties, counsel, or the public—considered reasonable alternatives. It is undeniable that 

the order to some degree compromised the values underlying 

the public-trial right. It had the potential to call into question

the fairness, integrity, and public reputation of judicial proceedings because it stamped the violation of the Defendants’ 
28

Sixth Amendment right with the imprimatur of the federal judiciary itself, thereby undermining public confidence in its impartiality.

Nevertheless, there are several countervailing factors 

that sufficiently mitigate this possibility. For one, although the 

closure encompassed all of the jury-selection phase, those proceedingslasted only two days; the public had access to all other 

phases of the trial, which in total lasted longer than seven 

weeks. See, e.g., Weaver, 137 S. Ct. at 1913 (“The closure was 

limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial.”); Press-Enterprise, 464 

U.S. at 510 (finding it significant that “[a]lthough three days of 

voir dire in this case were open to the public, six weeks of the 

proceedings were closed” (emphasis in original)). Further, a 

transcript of the proceedings was produced and later disclosed.

See D. Ct. Dkt. Nos. 974-993, 997-1005, 1024-1027; see also 

Weaver, 137 S. Ct. at 1913; Press-Enterprise, 464 U.S. at 513.

And as our Court has said, “[i]t is access to the content of the 

proceeding—whether in person, or via some form of documentation—that matters.” United States v. Antar, 38 F.3d 1348, 

1359-60 (3d Cir. 1994) (emphasis omitted).

13 Moreover, 

knowledge both of the media’s attention to the trial and of the 

transcript’s production (which ensures publicity in perpetuity)

may have had a similar effect on the proceedings’ participants

as real-time public access would have had, keeping them

13 This is not to suggest, as Antar makes clear, that subsequent 

release of the transcript may substitute for closure. See 38 F.3d

at 1360 n.13. Our point here is that, for purposes of plain-error 

review, subsequent disclosure of the transcript, while not a perfect substitute, at least mitigates the harm caused by the closure.
29

“keenly alive to a sense of their responsibility and to the importance of their functions.” Waller, 467 U.S. at 46 (quoting 

Gannett, 443 U.S. at 380). In addition, although the general 

public was not, absent authorization, able to be present at jury 

selection, as in Weaver, “there were many members of the venire who did not become jurors but who did observe the proceedings.” 137 S. Ct. at 1913. Finally, there has been “no suggestion of misbehavior by the prosecutor, judge, or any other 

party; and no suggestion that any of the participants failed to 

approach their duties with the neutrality and serious purpose 

that our system demands.” Id.

The ways, then, in which the closure potentially compromised the values protected by the Defendants’ Sixth 

Amendment right are answered by countervailing factors suggesting that those values were in other respects substantially

vindicated—that, in spite of the closure, the jury-selection proceedings possessed the publicity, neutrality, and professionalism that are essential components of upholding an accused’s 

right to a fair and public trial. Allowing the error to stand would 

not leave in place an unmitigated nullification of the values and 

interests underlying the right at issue.

Second, the costs of remedial action here would be significant. Unlike in Rosales-Mireles, we are confronted with a 

remand for a new trial in ten consolidated cases whose original

trial occurred almost five years ago, spanned approximately 

two months, and involved well over one hundred witnesses.

But even in the absence of the heavy burdens specific to these

cases, the prospect of retrial demands “a high degree of caution,” Rosales-Mireles, 138 S. Ct. at 1909, and implicates more 

fully the Supreme Court’s admonition that we exercise our discretion under Rule 52(b) “sparingly,” id. (quoting Jones v. 

United States, 527 U.S. 373, 389 (1999)). Moreover, when the 
30

Supreme Court in Waller acknowledged a public-trial error under the Sixth Amendment, it did not automatically reverse the 

convictions and remand for a new trial. Even there, on review 

of a preserved error, it cautioned that “the remedy should be 

appropriate to the violation” and contemplated the possibility 

that in some instances “a new trial . . . would be a windfall for 

the defendant, and not in the public interest.” 467 U.S. at 50.

The same general consideration applies here: the remedy is to 

be assessed relative to the costs of the error.

***

The practical costs of correcting the District Court’s error are not dispositive,14 but when we consider them along with

the mitigated costs of inaction, we decline to exercise our discretion in this instance. The importance of the “searchlight” of 

the public trial is “deeply rooted” in the history of our federal 

constitutional order and system of justice; and it has long been 

a feature of our Court’s jurisprudence. Rundle, 419 F.2d at 605-

06. Nevertheless, on this record, we cannot say that the values 

underlying the Defendants’ right to a public trial were sufficiently compromised that the costs to the fairness, integrity, 

and public reputation of judicial proceedings that would result 

14 There was some dispute at oral argument over the analytical 

significance of sandbagging, despite no suggestion that it occurred here. See Oral Arg. at 2:53:28-2:55:54; 3:01:24-

3:02:30. Although sandbagging can be a concern, see United 

States v. Bansal, 663 F.3d 634, 661 (3d Cir. 2011), we decline 

here to give it weight. For one, it is already accounted for doctrinally through the Olano test. See Puckett, 556 U.S. at 134. 

And the specter of sandbagging is most acute where the precedent established would be an automatic new trial. Under our 

standard, there is no such automaticity, each case turning on its 

own facts.
31

from letting the District Court’s error stand outweigh those that 

would alternatively result from reversing the Defendants’ convictions and remanding for a new trial. We cannot, in sum, say 

that the District Court’s closure of jury selection to the public 

“seriously affect[ed] the fairness, integrity, or public reputation 

of judicial proceedings.” Olano, 507 U.S. at 736.15

III. RIGHT-TO-PRESENCE CHALLENGE

Atkinson argues that the District Court’s in camera resolution of the Batson challenge during jury selection violated 

his constitutional “right to personal presence at all critical 

stages of the trial.” Rushen v. Spain, 464 U.S. 114, 117 (1983) 

(per curiam); see also Kentucky v. Stincer, 482 U.S. 730, 745 

(1987). He further contends that the exclusion was sufficiently 

prejudicial to warrant a new trial. The Supreme Court has made 

15 Our dissenting colleague places great weight on the distinction between harmless and structural error. He suggests that in 

considering the costs of letting the error stand, we improperly 

“rel[y] on cases that consider errors reviewed for harmlessness.” Dissenting Op. at III.B. And rather than accounting for 

the costs of correction, he thinks “[t]he nature of the error . . . 

must be the lodestar of our” analysis. Id. But “the term ‘structural error’ carries with it no talismanic significance as a doctrinal matter.” Weaver, 137 S. Ct. at 1910. The present cases 

ask us to weigh the intersection of two fundamental distinctions in criminal procedure: harmless and structural error, and 

preserved and unpreserved error. The dissent would give dispositive weight to the former. In our view, at least in the context of public-trial errors, neither the case law nor the competing values at stake warrant that approach. And to the extent the 

dissent simply weighs the costs of inaction differently here, we 

acknowledge his concerns, but respectfully reach the opposite 

conclusion on the facts before us. 
32

clear that violations of the right to be present are subject to 

harmless-error review. See Fulminante, 499 U.S. at 306-07 

(citing Rushen, 464 U.S. at 117-18 & n.2). We may assume 

without deciding that there was a violation here, because even 

if an error occurred, “it was harmless beyond a reasonable 

doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).16

In evaluating a putative equal protection violation under 

Batson, trial courts are to follow a three-step process.

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a 

race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, 

the trial court must determine whether the defendant has shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citing Batson, 476 U.S. at 96-98). “[T]he job of enforcing Batson rests 

first and foremost with trial judges,” who may consider a number of factors in determining whether racial discrimination has 

occurred. Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019). 

These include: whether the prosecutor’s proffered explanations 

are pretextual, see Snyder v. Louisiana, 552 U.S. 472, 485 

(2008), which can be shown through “side-by-side comparisons of some black venire panelists who were struck and white 

panelists allowed to serve,” Miller-El v. Dretke, 545 U.S. 231, 

241 (2005); “a prosecutor’s misrepresentations of the record 

when defending the strike[],” Flowers, 139 S. Ct. at 2243; and 

any other “circumstantial evidence that ‘bears upon the issue 

of racial animosity,’” Foster v. Chatman, 136 S. Ct. 1737, 1754 

16 Kelly adopts Atkinson’s argument under Rule 28(i).
33

(2016) (alteration omitted) (quoting Snyder, 552 U.S. at 478)).

Batson’s third step “turns on factual determinations, and, ‘in 

the absence of exceptional circumstances,’ we defer to [trial] 

court factual findings unless we conclude that they are clearly 

erroneous.” Id. at 1747 (quoting Snyder, 552 U.S. at 477)).

Here, there is no reasonable basis for concluding that 

prejudice resulted from the District Court’s conduct of the Batson hearing. At no point during the hearing or afterward did the 

District Court or defense counsel suggest that any of the Government’s proffered reasons were pretextual, that the Government had misrepresented the record, or that any other circumstantial evidence suggested racial bias. Indeed, Wiseman—

who had raised the objection and was one of two defense counsel present—acknowledged at the hearing, and Atkinson concedes on appeal, that the Government “stated race-neutral reasons.” App. 667. And when Wiseman and Royce Morris, the 

other defense attorney present, questioned whether the characteristics that led the Government to strike the juror were unique 

among the persons in the venire, the District Court proceeded, 

with Wiseman and Morris’s assistance, to search the questionnaires for any other remaining juror with characteristics similar 

those for which the juror was struck—in particular, the existence of multiple relatives who had been criminally convicted 

and imprisoned, including for drug trafficking. The search revealed no comparable jurors still on the panel. The record before us provides no basis for doubting the District Court’s sideby-side comparison of the jurors. See Davis v. Ayala, 576 U.S. 

257, 274 (2015).17 Finally, we have not been shown any evi17 Ayala was decided under the stricter standard applied on habeas review of a state court decision. See 576 U.S. at 267-68. 

However, the Court gives no indication that its decision on this 
34

dence that might otherwise contradict the Government’s representations or suggest that it acted on grounds of racial animus.

In sum, we have no reason to conclude that Atkinson’s 

absence from the Batson hearing was prejudicial. If, therefore, 

“the alleged constitutional error” occurred, it was “harmless 

beyond a reasonable doubt.” Rushen, 464 U.S. at 121.

IV. EVIDENTIARY CHALLENGES

The Defendants’ evidentiary challenges fall into three 

basic categories. First, Kelly and Sistrunk appeal the District 

Court’s denial of their motions to suppress evidence obtained 

from searches of their residences. Second, Atkinson asserts 

that the Government knowingly persisted in the use of perjured 

testimony, thus violating his constitutional right to due process. 

Finally, those Defendants and four others challenge some of 

the District Court’s decisions regarding the admission of evidence. We find no error in any instance.

A. Suppression

Shortly after the grand jury returned its initial indictment in March 2014, federal agents searched Kelly’s apartment 

at 337 East Philadelphia Street in York, seizing evidence later 

introduced at trial. Almost exactly six months later, just after 

the return of the second superseding indictment, agents conducted a similar search of Sistrunk’s apartment, located at 326 

West Philadelphia Street, also seizing evidence that was later 

introduced. The Government conducted each search pursuant 

to a warrant issued by Magistrate Judge Carlson. ATF Special 

Agent Scott Endy signed the warrant applications and attached 

a sworn affidavit to each of them, detailing his decades-long 

experience in federal law enforcement, the history of the South 

point would have been different under the “clear error” standard we are to apply here. See Foster, 136 S. Ct. at 1747.
35

Side investigation, and the basis for probable cause. To establish the latter, he relied in part upon information provided by 

several confidential informants relating to Kelly and Sistrunk’s 

drug-trafficking activities.

Approximately two months before the trial, Kelly and 

Sistrunk filed motions to suppress the evidence obtained from 

the searches. They contended that the information in the affidavits was insufficient to establish a factual basis for probable 

cause and that the exclusionary rule’s good-faith exception did 

not apply. The District Court held hearings on the motions on 

August 28, 2015 and denied both of them less than a week later. 

It included with each of its orders a memorandum explaining 

its decision. Kelly and Sistrunk now appeal those orders, raising largely the same arguments they did before the District 

Court.

1. Kelly

“[N]o Warrants shall issue,” the Fourth Amendment declares, “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, 

and the persons or things to be seized.” U.S. Const. amend. IV. 

This clause was intended “to affirm and preserve a cherished 

rule of the common law, designed to prevent the issue of 

groundless warrants.” McGrain v. Daugherty, 273 U.S. 135, 

156 (1927). We are satisfied that the warrant to search Kelly’s 

residence was not groundless: Special Agent Endy’s affidavit 

supplied a sufficient basis for probable cause.

The Legal Standard

“Our review of the denial of a motion to suppress is for 

clear error as to the District Court’s findings of fact, and plenary as to legal conclusions in light of those facts.” United 

States v. Hester, 910 F.3d 78, 84 (3d Cir. 2018). In contexts 

like the present, though, that latter standard applies only to our 
36

review of “the District Court’s evaluation of the magistrate’s 

probable cause determination.” United States v. Stearn, 597 

F.3d 540, 554 (3d Cir. 2010). We pay great deference to the 

magistrate’s initial determination, asking only “whether ‘the 

magistrate had a substantial basis for concluding that probable 

cause existed.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 

238-39 (1983)). It is distinctly the magistrate’s task to make 

the “practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including 

the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” Gates, 

462 U.S. at 238 (internal quotation marks omitted).

Specifically, “[w]hen the crime under investigation is 

drug distribution, a magistrate may find probable cause to 

search the target’s residence even without direct evidence that 

contraband will be found there.” Stearn, 597 F.3d at 558. We 

have long maintained that when a suspect is involved in drug 

trafficking, on a significant scale or for an extended period of 

time, it is reasonable to infer that he would store evidence of 

that illicit activity in his home. See United States v. Hodge, 246 

F.3d 301, 306 (3d Cir. 2001); United States v. Whitner, 219 

F.3d 289, 297-98 (3d Cir. 2000). It is insufficient, however, if 

the affidavit suggests only that the suspect “is actually a drug 

dealer” and “that the place to be searched is possessed by, or 

the domicile of, the [suspect].” United States v. Burton, 288 

F.3d 91, 104 (3d Cir. 2002). There must also be evidence “linking [the targeted location] to the [suspect]’s drug activities.” 

Id. (emphasis added). “[T]he search of a drug dealer’s home 

would be unreasonable if the affidavit suggested no reason to 

believe contraband would be found there.” Stearn, 597 F.3d at 

559.
37

Further, when (as here) the affidavit refers to information gained from confidential informants, bare conclusory 

assertions by the affiant of the reliability and veracity of the 

informants are insufficient. See Gates, 462 U.S. at 239. “Mere 

affirmance of belief or suspicion is not enough.” Nathanson v. 

United States, 290 U.S. 41, 47 (1933). But when “independent 

police work” substantially corroborates the information of a 

confidential informant, “an entirely different case” is presented. Gates, 462 U.S. at 241-42. “[C]orroborat[ion] in significant part by independent police investigation” may provide 

the requisite substantial basis for a magistrate’s finding of 

probable cause, to which we will defer. Stearn, 597 F.3d at 556, 

557-58; see also Gates, 462 U.S. at 246.

Application and Resolution

Informants told law enforcement of several interactions 

with Kelly related to drug trafficking. In September 2013, an 

informant identified Kelly in a photograph and stated that he

had supplied the informant with crack “on numerous occasions 

in the recent past.” Kelly App. 120, ¶ 18. Another informant 

described a February 2014 encounter in which the informant 

asked Kelly for crack to distribute, and Kelly responded that 

he was going to Atlantic City to get some more cocaine. 

Around that same time, a third informant told a York police 

detective that Hernandez was supplying Kelly with large 

amounts of crack. These data points suggest that Kelly was at 

least involved in the sale and supply of crack cocaine shortly 

before the warrant issued. 

That suggestion was corroborated by independent police work. The affidavit describes two incidents that occurred 

in September 2013. York law enforcement conducted a controlled delivery of $120 to Kelly through a confidential source 

who had been fronted cocaine. Six days later, law enforcement 
38

oversaw a controlled buy and delivery of crack involving 

Kelly. The source received the drugs earlier in the day, and 

later delivered $150 to Kelly “at 337 E. Philadelphia Street.” 

Kelly App. 129, ¶ 57. There was some dispute over this wording at the suppression hearing, and Kelly contends on appeal 

that it incorrectly implies that the transaction took place inside 

his residence, when the police report states that the transaction 

occurred in front of the building. For the reasons given above, 

however, that distinction is not decisive. The incident at least 

indicates that in the months prior to the warrant application, 

Kelly was conducting drug transactions in close physical proximity to his apartment.

The final relevant incident in the affidavit is the most 

significant. In early March 2014, about two weeks before Kelly 

was indicted, federal and local law enforcement (including 

Special Agent Endy) conducted a controlled purchase of crack 

from Kelly through a cooperating source. Surveillance documented Kelly leaving his East Philadelphia Street apartment, 

driving to the location, delivering (what was later confirmed to 

be) crack to the source, and then returning immediately to his 

apartment. “While we generally accept the common sense 

proposition that drug dealers often keep evidence of their transactions at home, that inference is much stronger when the home 

is the first place a drug dealer proceeds following such a transaction.” Burton, 288 F.3d at 104 (citation omitted).

In sum, independent police work corroborated the suggestion of multiple informants that Kelly was not an occasional 

street-level dealer, but one who consistently sold and supplied 

crack to others in the months and weeks leading up to the warrant application. Further, that police work provided evidence 

placing Kelly’s residence on East Philadelphia Street in close 

spatial and temporal proximity to his illegal activity. Magistrate Judge Carlson therefore had ample basis to conclude there 
39

was “a fair probability that contraband or evidence of a crime 

w[ould] be found” at the apartment. Gates, 462 U.S. at 238.

2. Sistrunk

Our Court has “turn[ed] directly to the good faith issue” 

when we concluded that a defendant’s probable-cause arguments did not “involve novel questions of law whose resolution 

is necessary to guide future action by law enforcement officers 

and magistrates.” United States v. Ninety-Two Thousand Four 

Hundred Twenty-Two Dollars & Fifty-Seven Cents, 307 F.3d 

137, 145 (3d Cir. 2002) (alterations and internal quotation 

marks omitted); see United States v. Leon, 468 U.S. 897, 925 

(1984). We think such a move is appropriate here, and we will 

affirm the denial of Sistrunk’s motion on good-faith grounds.

The Legal Standard

“To trigger the exclusionary rule, police conduct must 

be sufficiently deliberate that exclusion can meaningfully deter 

it, and sufficiently culpable that such deterrence is worth the 

price paid by the justice system.” Herring v. United States, 555 

U.S. 135, 144 (2009). One triggering circumstance is when 

“the magistrate or judge in issuing a warrant was misled by 

information in an affidavit that the affiant knew was false or 

would have known was false except for his reckless disregard 

of the truth.” Leon, 468 U.S. at 923 (citing Franks v. Delaware, 

438 U.S. 154 (1978)). The Franks rule, we have said, encompasses not only an affiant’s assertions, but also his omissions. 

See Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000). Our 

standard for assertions “is that . . . ‘when viewing all the evidence, the affiant must have entertained serious doubts as to 

the truth of his statements or had obvious reasons to doubt the 

accuracy of the information he reported.’” United States v. 

Brown, 631 F.3d 638, 645 (3d Cir. 2011) (quoting Wilson, 212 

F.3d at 788). For omissions, by contrast, we ask whether the 
40

“officer withholds a fact in his ken that any reasonable person 

would have known . . . was the kind of thing the judge would 

wish to know.” Wilson, 212 F.3d at 788 (alteration and internal 

quotation marks omitted).

Although Wilson concerned an action under 42 U.S.C. 

§ 1983, we have also applied it to resolve appeals of judgments 

following Franks hearings. See Brown, 631 F.3d at 648-49; 

United States v. Yusuf, 461 F.3d 374, 383-84 (3d Cir. 2006). 

We will extend this approach to cases where, as here, Franks

is raised in the good-faith context—where the question is only 

whether the exclusionary rule should apply. Yet our concern is 

with only the first prong of the Franks test—that the affiant 

acted deliberately to conceal the truth or with “reckless disregard for the truth.” Franks, 438 U.S. at 171; see Leon, 468 U.S. 

at 923. The inquiry at the second prong—that the “false statements or omissions . . . [be] material, or necessary, to the finding of probable cause,” Sherwood v. Mulvihill, 113 F.3d 396, 

399 (3d Cir. 1997)—is unnecessary because the presumption 

is that a Fourth Amendment violation has occurred. See Herring, 555 U.S. at 145; Leon, 468 U.S. at 922 n.23.

This accordingly demands adjusting the application of 

the first prong when an affiant’s alleged omissions are at issue. 

In the § 1983 context, we have applied the first prong in light 

of the second, asking at the former whether the omitted facts 

and circumstances were “relevant to the existence of probable 

cause.” Dempsey v. Bucknell Univ., 834 F.3d 457, 471 & n.9 

(3d Cir. 2016). But, when good faith is concerned, the proper 

question is not simply whether the allegedly omitted information was known to the affiant and relevant to the magistrate’s probable-cause inquiry, but also whether the deliberate 

or reckless omission, if it occurred, was “so objectively culpable as to require exclusion.” Herring, 555 U.S. at 146; see also
41

Dempsey, 834 F.3d at 473 n.13 (noting that satisfaction of its

standard does not necessarily amount to a finding of bad faith).

Application and Resolution

Sistrunk identifies four instances where Special Agent 

Endy allegedly omitted relevant facts, thereby “misle[ading]

the magistrate judge in reckless disregard for the truth.” Sistrunk Br. at 26.

First, the affidavit states that on July 8, 2007, “a 

Southside gang member” was “fatally shot multiple times.” 

Sistrunk App. 170. A suspect later made “a statement to police 

[that] implicated Anthony Sistrunk as being . . . with him during the shooting.” Id. Sistrunk contends that this statement 

“fail[ed] to inform the . . . magistrate that [the suspect] exonerated [him] of any role in th[e] shooting.” Sistrunk Br. at 25.

Second, the affidavit relates that in April 2009, Sistrunk 

fled a vehicle stop and was later arrested. Police discovered 

two firearms in the vehicle. Sistrunk was later “convicted of 

fleeing or attempting to elude police.” Sistrunk App. 170. He 

now contends that this account omits the fact that some firearms-related charges were withdrawn, and that the jury acquitted him of other offenses.

Third, according to the affidavit, while Sistrunk was in 

prison in September 2009, an ATF Special Agent “obtained the 

inmate visitor list for Sistrunk which indicated an association 

with multiple Southside Gang members.” Sistrunk App. 170. 

Sistrunk argues that this information “failed to report that none 

of [his] co-defendants listed on his prison visitor list actually 

visited [him].” Sistrunk Br. at 26.

The fourth instance concerns the homicide of Christen

Latham in November 2012. The affidavit states that “police 

identified . . . Sistrunk as being involved in an altercation with 
42

the victim prior to his murder.” Sistrunk App. 171. This account, Sistrunk says, omitted that no one was criminally 

charged for the homicide, that he was not suspected for the 

crime, and that a witness did not identify him as being present.

These alleged omissions do not amount to a deliberate 

or reckless concealment of facts both relevant to the magistrate’s probable-cause inquiry and evincing a culpability worth 

the costs of suppression.18 The context is important. Special 

Agent Endy filed his warrant application on September 22, 

2014—only five days after the grand jury returned the second 

superseding indictment. The application “clearly was supported by much more than a ‘bare bones’ affidavit”—it “related the results of an extensive investigation” that had already 

led to Sistrunk’s indictment on conspiracy and drug-trafficking 

charges. Leon, 468 U.S. at 926. Moreover, none of the supposedly omitted facts negates, or even substantially mitigates, the 

intended implication of the related facts actually adduced: that, 

as the affidavit asserted, Sistrunk “ha[d] a long history of membership in the Southside Gang and ha[d] consistently engaged 

in or ha[d] been associated with criminal activity including 

drug trafficking, firearm possession and violence.” Sistrunk 

App. 174. As a result, Special Agent Endy’s failure to include 

the facts does not evince the level of culpability necessary to 

18 In Brown—which concerned Franks prong one—we held 

that the standard of review for assertions is clear error, reasoning that a district court’s requisite determination is “essentially 

factual.” See 631 F.3d at 642, 644-45. The parties here have 

not briefed us on the appropriate standard of review in the 

omissions context, and we find it unnecessary to resolve that 

question. Even if our review was de novo, we would still affirm 

the District Court’s judgment.
43

trigger the exclusionary rule. The costs of suppression here 

would far outweigh any concomitant deterrence effect.

B. Knowing Use of Perjured Testimony

During his testimony, Darvin Allen, one of the Government’s principal witnesses, described a March 2009 episode of 

attack and retaliation between members of South Side and 

Parkway. Late one night at a club, Jahkeem Abney, a South 

Side member, got into a verbal dispute with some men from 

Parkway and was later shot in front of the club. A few days 

later, Allen recounted, several persons, including Atkinson, 

discussed how to respond to the shooting. Allen then testified 

that these same individuals drove up to Parkway and “engaged 

in gunfire” with Skylar Handy, one of the Parkway members 

at the club the night Abney was shot. App. 1647. On crossexamination, however, Atkinson’s counsel, Yaninek, asked 

Allen if it would “make sense to [him]” that Atkinson was incarcerated in March 2009. App. 1801. Allen answered affirmatively and agreed that, as a result, Atkinson could not have 

been involved in the retaliatory shooting.19 Later, during the 

defense portion of the trial, Yaninek questioned Special Agent 

Endy, who had prepared Allen for trial. Endy acknowledged 

that his report of investigation included Allen’s identification 

of Atkinson at the retaliatory shooting, and he accepted that 

19 Yaninek had earlier, at a sidebar conversation during direct 

examination, moved for a mistrial on the basis of the inaccuracy. (Though he mistakenly said the testimony placed Atkinson at the club in possession of a gun, rather than simply at the 

retaliation.) The District Court denied the motion, declaring the 

issue “the proper subject of cross-examination” and not 

“grounds for a mistrial.” App. 1664. Atkinson does not appeal 

the District Court’s decision to allow the error to be resolved 

on cross.
44

this was impossible, but he did not recall Allen testifying to 

that effect.

Atkinson now asks for a new trial, contending that the 

Government knew of Allen’s error and chose not to correct it. 

The Supreme Court has long maintained that under the Due 

Process Clauses, the prosecution may neither present nor withhold known false evidence, nor “allow[] [such evidence] to go 

uncorrected when it appears.” Giglio v. United States, 405 U.S. 

150, 153 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 

(1959)) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963); and

Mooney v. Holohan, 294 U.S. 103, 112 (1935)). Yet such a violation, if established, does not alone warrant a new trial; there 

must also be prejudice (or materiality). See Giglio, 405 U.S. at 

154 (citing Napue, 360 U.S. at 271); see also Turner v. United 

States, 137 S. Ct. 1885, 1893 (2017). Accordingly, in cases of 

uncorrected false testimony, our Court requires a defendant to 

show four elements: (1) the witness committed perjury; (2) the 

government knew or should have known of the perjury; (3) the 

testimony went uncorrected; and (4) there is a reasonable likelihood the false testimony affected the verdict. See Lambert v. 

Blackwell, 387 F.3d 210, 242 (3d Cir. 2004). Atkinson’s challenge fails at the first prong.

“A witness commits perjury if he or she ‘gives false testimony concerning a material matter with the willful intent to 

provide false testimony, rather than as a result of confusion, 

mistake, or faulty memory.’” United States v. Hoffecker, 530 

F.3d 137, 183 (3d Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Allen’s testimony was not limited to the night club incident; it ranged across several years 

and recounted multiple shootings involving a number of different persons. That Allen could not remember precisely who was 

present at the March 2009 retaliatory shooting is therefore unsurprising, and it does not in itself demonstrate willful intent. 
45

Further, Atkinson presents no evidence that Allen, at the time 

of his direct testimony, knew that Atkinson was incarcerated in 

March 2009. Compare Haskell v. Superintendent Greene SCI, 

866 F.3d 139, 143, 146 (3d Cir. 2017), with Hoffecker, 530 

F.3d at 183. Indeed, on cross-examination, when asked 

whether Atkinson was present at the retaliatory shooting, Allen 

replied that he knew Atkinson “committed a shooting at Skylar” Handy, but that he didn’t “know if it was March because I 

think [Atkinson] went away.” App. 1801. And when Allen was 

affirmatively presented with the fact of Atkinson’s incarceration, he readily allowed it. Given this testimony, we cannot but 

conclude that Allen’s initial identification of Atkinson was 

simply the result of a “faulty memory.” Hoffecker, 530 F.3d at 

183.

C. Admission

The final category of evidentiary challenges concerns 

the admission and exclusion of evidence at trial. On multiple 

occasions, it is argued, the District Court ran afoul of the relevance provisions of the Federal Rules of Evidence by admitting 

evidence that either was unfairly prejudicial in excess of its 

probative value or served only to prove a Defendant’s character. Several Defendants also challenge the District Court’s admissions decisions regarding expert testimony. We perceive no 

error in any of these instances.

1. Relevance

We will disturb a district court’s admission decision 

only if the court abused its discretion—if the decision “was arbitrary, fanciful or clearly unreasonable,” such that “no reasonable person would adopt the district court’s view.” United 

States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009) (internal 

citation omitted).
46

Kelly’s Nickname

The second superseding indictment included an alias, or 

street name, for each defendant. The one for Kelly was 

“Killer.” App. 18. Early in the trial, his attorney filed a motion 

in limine objecting to the Government’s use of the alias as unfairly prejudicial because it suggested extrinsic evidence that 

Kelly had committed murder. The Government countered that 

certain witnesses knew Kelly only through his alias, and that it 

would use the nickname only to identify Kelly, thus preventing 

jury confusion. The District Court agreed with the Government. It also, at the conclusion of the trial, included a limiting 

instruction to the jury on this issue. Kelly now seeks a new trial, 

arguing that the “probative value” of the nickname evidence 

was “substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

Several of our sister circuits have long maintained that 

the prosecution’s use of a defendant’s alias in an indictment or 

at trial is permissible where the evidence is relevant—including for purposes of identifying the defendant—and does not 

result in unfair prejudice. See, e.g., United States v. Doe, 741 

F.3d 217, 227 (1st Cir. 2013); United States v. Farmer, 583 

F.3d 131, 144-47 (2d Cir. 2009); United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001); United States v. 

Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996); United States v. 

Hines, 955 F.2d 1449, 1454 (11th Cir. 1992); United States v. 

Williams, 739 F.2d 297, 299-300 (7th Cir. 1984). We agree, 

and adopt this standard here.

The District Court’s judgment easily passes muster. Allen knew Kelly only by his nickname, and the District Court 

engaged in a reasonable balancing of the testimony’s relevance 

with the nickname’s potential to generate unfair prejudice. 

Kelly points to no instance where either Allen or a later witness 
47

in the same position was able to identify him by anything else, 

nor does he indicate any moment where the Government used 

the alias to do anything other than identify him in a witness’s 

testimony.20 Further, the District Court fortified its Rule 403 

balancing by including the limiting instruction. We perceive no 

abuse of discretion in this course of events.

The Latham Homicide

A few hours after midnight on November 17, 2012, a 

Harrisburg man named Christen Latham died of a gunshot 

wound to the chest in the parking lot outside a York restaurant 

known as MoMo’s. A verbal dispute inside the restaurant 

spilled out into the parking lot, where Latham was at first severely beaten by several men and then fatally shot. Police later 

identified Hernandez, Cruz, Kelly, and Schueg as either involved in or at least present at the altercation,21 but no charges 

were ever filed.

The Government sought at trial to introduce evidence 

suggesting the involvement of several defendants in the altercation, including testimony that Hernandez threw the first 

punch and circumstantial evidence that Kelly was the one who 

killed Latham. Hernandez filed a joint motion in limine to exclude all the evidence, arguing that it was inadmissible under 

Federal Rules of Evidence 402, 403, and 404(b). The District 

20 Kelly asserts that the Government “prompted” Cordaress 

Rogers to use the nickname although Rogers clearly knew 

Kelly’s given name. Kelly Reply Br. at 4. We do not read the 

testimony that way. It is clear from the context that the Government was seeking to elicit Kelly’s surname, and not his 

nickname.

21 Rogers testified at trial that Sistrunk told him that he also 

was present.
48

Court denied the motion, ruling that the evidence was intrinsic 

to the RICO-conspiracy offense charged at Count I and that 

any danger of unfair prejudice did not substantially outweigh 

the evidence’s probative value. Seven Defendants22 now contest one or both aspects of that ruling.

Intrinsic evidence need not be analyzed under Rule 

404(b) because it is not “[e]vidence of any crime, wrong, or 

other act,” Fed. R. Evid. 404(b)(1), but rather “part and parcel 

of the charged offense,” United States v. Green, 617 F.3d 233, 

245 (3d Cir. 2010). We have, however, limited “the ‘intrinsic’ 

label [to] two narrow categories of evidence”: (1) where the 

uncharged conduct “directly proves the charged offense”; and 

(2) where it is “performed contemporaneously with the 

charged crime” and “facilitate[s] the commission of the 

charged crime.” Id. at 248-49 (internal quotation marks omitted). This suggests that the nature and scope of the evidence 

able to be deemed intrinsic will vary with the charged offense. 

In particular, where a criminal conspiracy is charged, courts 

have afforded the prosecution considerable leeway to present 

evidence, even of unalleged acts within the indictment period,

that reflects a conspiratorial agreement or furtherance of the

conspiracy’s illegal objectives. See, e.g., United States v. Bush, 

944 F.3d 189, 196-97 (4th Cir. 2019); United States v. McGill, 

815 F.3d 846, 879 (D.C. Cir. 2016) (per curiam); United States 

v. Maxwell, 643 F.3d 1096, 1100 (8th Cir. 2011); United States 

v. Parker, 553 F.3d 1309, 1314-15 (10th Cir. 2009); see also 

United States v. Gibbs, 190 F.3d 188, 218 (3d Cir. 1999) (holding to the same effect on plain-error review).

On this standard, the District Court here did not abuse 

its discretion. As we detail more fully below, both RICO and 

22 Hernandez, Kelly, Sistrunk, and Eatmon all argue the point 

in some form. Cruz, Villega, and Atkinson invoke Rule 28(i).
49

drug-trafficking conspiracy are ultimately grounded in the general principles of conspiracy law. The Latham evidence implicates several of the Defendants and goes to their willingness to 

engage in concerted illegal action, amounting at its most serious to murder. The argument that the evidence has nothing to 

do with drug trafficking and the South Side-Parkway rivalry is 

therefore inapposite. Conspiracy is a single crime, even if it 

embraces a multitude of ends to be achieved over a period of 

time, by means that are not themselves the subject of agreement among the conspirators. See Frohwerk v. United States, 

249 U.S. 204, 209-10 (1919); infra, Section V.B.1. In this light, 

a reasonable person could agree with the District Court that the 

Latham evidence serves directly to prove the existence of 

RICO conspiracy among the Defendants.

The Defendants’ Rule 403 challenges also fail. The fact 

that the evidence is intrinsic establishes its probative nature, 

and as the District Court pointed out, any evaluation of prejudicial effect here must be considered in the context of the totality of the evidence produced. “The jury,” the District Court 

observed, “has heard extensive evidence of Defendants’ and 

their alleged co-conspirators’ drug trafficking and gun possession, gang membership, multiple shootings directed at their rivals, shootouts on public streets involving feuding rivals in 

which children are shot and even killed, and evidence of multiple murders.” App. 15. We agree with this assessment, and 

conclude that the District Court did not abuse its discretion in 

balancing the probative value and danger of prejudice as it did.

2. Expert Testimony

It is well established that a district judge has a “general 

‘gatekeeping’ obligation” with respect to all testimony based 

on specialized knowledge of some form. Kumho Tire Co. v. 

Carmichael, 526 U.S. 137, 141 (1999). Under Federal Rule of 
50

Evidence 702, she must ensure that such testimony is both reliable and relevant, including under the standard laid down in 

Rule 403. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 

594-95 (1993). The judge must also ensure that “an expert witness [does] not state an opinion about whether [a] defendant 

did or did not have a mental state or condition that constitutes 

an element of the crime charged or of a defense.” Fed. R. Evid. 

704(b). The Defendants here challenge two of the District 

Court’s decisions under these rules. We review those decisions 

for abuse of discretion. United States v. Davis, 726 F.3d 434, 

446 (3d Cir. 2013).

Sistrunk’s Tattoo

The second superseding indictment included allegations

that several South Side members were affiliated with the 

Bloods. Prior to trial, the Government announced its intention 

to have John Havens, a Special Agent with the Federal Bureau 

of Investigation, testify as an expert on the Bloods, detailing 

among other things their organization and symbols. Anticipating a challenge to this proffer, the District Court held a Daubert

hearing. And when during trial the motion to exclude came, the 

District Court ruled in a memorandum opinion that most of it 

was admissible, but it excluded (among other things) testimony 

“as to any individual defendant except in the abstract.” D. Ct. 

Dkt. No. 860, at 11.

In support of its Blood-affiliation allegations, the Government sought to introduce depictions of a tattoo on Sistrunk’s 

left bicep that read: “Live By The 5, Die By The [symbol of a 

gun].” App. 5127; Sistrunk App. 78. Special Agent Havens 

would not be shown the tattoo, the Government assured, but he 

would describe the significance of certain symbols, such as the 

number five. Sistrunk’s attorney objected under Rule 403, arguing that this singled out his client in contradiction of the 
51

Daubert decision. The District Court admitted the evidence,

and Sistrunk now appeals.

We find no abuse of discretion in the District Court’s 

decision. Cooperating witnesses identified Sistrunk as a Blood. 

Further, according to testimony of Special Agent Endy, when 

federal agents executed the search warrant of Sistrunk’s home, 

they found a letter signed, “Hat Boy, Low Ridah, Brim, 

Kanye.” App. 5016. Special Agent Endy testified that “Kanye” 

was Sistrunk’s alias and that “Brim” was “a Blood set reference”—that is, a reference to a particular subgroup of Bloods. 

App. 5016. Sistrunk’s argument that this testimony and evidence was minimal when compared to the voluminous trial record is irrelevant. At the very least, the testimony represents independent support, apart from the tattoo and Special Agent Havens’s testimony, for the Government’s theory was Sistrunk 

was affiliated with the Bloods.

Nor did the District Court’s decision to admit the evidence unfairly single out Sistrunk in contradiction of the Daubert ruling. Under that decision, Special Agent Havens would 

not have testified as to Sistrunk in particular; the tattoo would 

have been introduced after Special Agent Havens’s testimony, 

and the jury would have been allowed to infer, or not infer, a 

connection between the tattoo and the significance of the number five among certain Bloods. In fact, the point arguably became explicit only through the efforts of Sistrunk’s attorney, 

who on cross-examination presented Special Agent Havens 

with a picture of the tattoo. Given this course of events, we are 

comfortable that a reasonable person could adopt the District 

Court’s view.
52

The De La Cruz Criteria

One of the defense’s principal expert witnesses was Dr. 

Jesse De La Cruz, a former gang member who earned a doctoral degree studying the gangs of Stockton, California. While 

conducting that research, he developed a set of eight characteristics common to the gang members he studied. Upon completion of his degree, Dr. De La Cruz began to testify as an expert 

witness, determining whether a criminal defendant possessed 

all or most of the characteristics. He interviewed all twelve defendants and was prepared to say whether they met his criteria.

The Government challenged that proposed testimony 

under Rule 704(b). It argued that Dr. De La Cruz could discuss 

the eight characteristics and other matters, but that application 

of the characteristics to the defendants would “go directly to 

the intent of a particular person to be a member of a gang.” 

App. 5752. The District Court agreed. It ruled that Dr. De La 

Cruz could provide an “overview of gang activities” as a response to Special Agent Havens, but that he could not discuss 

whether the defendants met the eight criteria. App. 5754. That, 

the District Court said, would amount to “testi[mony] as to a 

person’s mental state or condition,” and the danger for prejudice was substantial in comparison with its limited probative 

value. App. 5754-55. Joined by five others,23 Atkinson contends that the District Court erred in excluding the testimony.

This was not reversible error. It may be true that Dr. De 

La Cruz’s application of the eight criteria would not have constituted “the last step in the inferential process—a conclusion 

as to the [defendants’] mental state.” United States v. Watson, 

260 F.3d 301, 309 (3d Cir. 2001) (citation omitted). As we de23 Cruz, Hernandez, Villega, Sistrunk, and Eatmon.
53

scribe in Section V.B.1 below, a RICO enterprise may still exist even if it does not amount to a gang, nor does gang membership in itself prove RICO conspiracy. Yet that distinction 

illustrates the problematic nature of the testimony. The probative value was minimal unless one associates gang membership 

with RICO conspiracy, and so any testimony to that effect 

would have served, as the District Court said, only to “confuse 

and mislead the jury.” App. 5755. “The trial judge has broad 

discretion to admit or exclude expert testimony, based upon 

whether it is helpful to the trier of fact.” Gibbs, 190 F.3d at 

211. In this light, we cannot say the District Court abused its 

discretion in excluding the testimony.

V. SUFFICIENCY OF THE EVIDENCE

We turn now to a series of interlocking challenges to the 

sufficiency of the evidence supporting the jury’s verdicts. The 

operative indictment charged all the Defendants in Counts I, II, 

and III: RICO conspiracy, 18 U.S.C. § 1962(d); drug-trafficking conspiracy, 21 U.S.C. § 846; and drug trafficking, 21 

U.S.C. § 841(a), respectively. Seven Defendants—Cruz, Hernandez, Villega, Kelly, Atkinson, Sistrunk, and Eatmon—were 

convicted on Count I, and each now contests his verdict.24

These same seven, plus Rice and Schueg, were convicted on 

Counts II and III.25 All nine had drug quantities of 5 kilograms 

or more of powder cocaine and 280 grams or more of crack 

cocaine attributed to them, thus raising their mandatory minimum term of imprisonment to 10 years and the maximum term 

24 Cruz, Hernandez, Sistrunk, and Eatmon all argue the issue. 

Villega, Kelly, and Atkinson raise it through Rule 28(i).

25 Williams was also convicted on Count III. He appeals only 

his sentence, on grounds other than drug quantity. See infra

Section VI.A.1.
54

to life. See 21 U.S.C. § 841(b)(1)(A). Six of these nine—Hernandez, Villega, Rice, Kelly, Sistrunk, and Eatmon—now 

challenge the verdicts on Counts II and III.26

For the reasons that follow, we will affirm the judgments of conviction. We also shall affirm the jury’s Count II

drug-quantity verdicts insofar as they bear on the Defendants’ 

statutory maximum terms of imprisonment.

A. The Rowe Error

We begin with the legal framework governing our inquiry. Nearly three and a half years after trial, and after all the 

Defendants had been sentenced, our Court in United States v. 

Rowe, 919 F.3d 752 (3d Cir. 2019), clarified the effect of Alleyne v. United States, 570 U.S. 99 (2013), upon the distribution and possession elements of § 841(a)(1). We held that the

provisions of § 841(b)(1)(A) and (b)(1)(B) attach to each discrete act of distribution or possession because they specify 

facts that increase the statutory penalty, and so, under Alleyne, 

constitute an “element of a distinct and aggravated crime,” 570 

U.S. at 116, that must be submitted to the jury, see Rowe, 919 

F.3d at 759. As a result, the jury may not “combine the amounts 

distributed or possessed” at discrete instances to find the drug 

26 On Count II, Hernandez, Villega, Rice, and Sistrunk argue 

the issue in some form, while Kelly and Eatmon raise it through 

Rule 28(i). Hernandez, Villega, and Rice also argue Count III; 

Kelly, Sistrunk, and Eatmon all invoke Rule 28(i). In an addendum to his opening brief, Hernandez challenged his conviction on Count VI by incorporating without explanation Villega’s argument as to Count II. This was an improper adoption.

At least in this context, we fail to see how a Rule 28(i) incorporation of a co-defendant’s argument on a different count is 

applicable, absent elaboration that was not provided.
55

quantities specified in § 841(b)(1)(A) and (b)(1)(B). Id. at 761.

The parties agree that under Rowe the evidence was insufficient to support the Count III verdicts attributing to the 

Defendants the § 841(b)(1)(A) quantities. The jury here was 

charged on an aggregation theory of § 841(a)(1). The parties 

contest, however, our standard of review of that error. Further, 

two Defendants argue that Rowe also affects the jury’s drugquantity attributions on Count II—drug-trafficking conspiracy. 

We will address each argument in turn. We conclude that remedial action on the Count III error is warranted only if the 

Defendants’ terms of imprisonment would have been different 

absent the error. Further, we conclude that an aggregation error 

did occur on Count II, but only as it regards the Defendants’ 

mandatory minimum terms of imprisonment, and that the same 

standard of review applies as for the Rowe error on Count III.

1. Standard of Review

When a new rule is issued during the pendency of a direct criminal appeal, it is the appellate court’s duty to “apply 

the law in effect at the time it renders its decision.” United 

States v. Johnson, 899 F.3d 191, 199 (3d Cir. 2018) (quoting 

Henderson v. United States, 568 U.S. 266, 271 (2013)). But 

that does not necessarily determine our standard of review. Sistrunk contends that his Rule 29 motion at the close of the Government’s case in chief sufficiently preserved the issue. We 

disagree.

The standard for preserving an argument on a Rule 29 

motion remains an open question in our circuit. In United 

States v. Joseph, 730 F.3d 336 (3d Cir. 2013), we drew a distinction between “issues” and “arguments,” noting that the former “can encompass more than one of the latter.” Id. at 340. 

We then held that, in the evidence-suppression context, “for 

parties to preserve an argument for appeal, they must have 
56

raised the same argument in the District Court—merely raising 

an issue that encompasses the appellate argument” results in 

waiver of the argument. Id. at 337 (emphases omitted). The 

Government invites us to apply this standard here.

Nearly all of our sister circuits, though, have settled on 

a somewhat different standard. One has said that when a defendant makes “general motions pursuant to Rule 29 for acquittal, generally arguing that the government presented insufficient evidence,” he has “preserved his sufficiency claims for 

appeal.” United States v. Hoy, 137 F.3d 726, 729 (2d Cir. 

1998). Others have maintained that “[w]hen a defendant raises 

specific grounds in a Rule 29 motion, grounds that are not specifically raised” are subject to some form of plain-error review, 

if not waived, on appeal. United States v. Chong Lam, 677 F.3d 

190, 200 (4th Cir. 2012) (emphasis omitted).

27 A plurality of 

circuits has explicitly adopted both of these standards.

28 Only 

the Fifth Circuit applies a Joseph-like standard in the Rule 29 

context. See United States v. McDowell, 498 F.3d 308, 312-13 

(5th Cir. 2007).

We think uniformity in federal criminal practice has 

value, and so we decline to import Joseph wholesale here. It is 

unnecessary, though, to diverge too far from Joseph and hold 

27 See also United States v. Samuels, 874 F.3d 1032, 1036 (8th 

Cir. 2017); United States v. Baston, 818 F.3d 651, 663-64 (11th 

Cir. 2016).

28 See United States v. Porter, 886 F.3d 562, 566 (6th Cir. 

2018); United States v. Marston, 694 F.3d 131, 134 (1st Cir. 

2012); United States v. Hosseini, 679 F.3d 544, 550 (7th Cir. 

2012); United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 

2010); United States v. Goode, 483 F.3d 676, 681 (10th Cir. 

2007); United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 

1998).
57

that a broadly stated Rule 29 motion preserves all arguments 

bearing on the sufficiency of the evidence. It is enough to accept here that when a Rule 29 motion raises specific grounds, 

or arguments (in the Joseph sense), all such arguments not 

raised are unpreserved on appeal. Sistrunk’s motion raised a 

narrow factual argument regarding the testimony of a witness. 

That is a specific ground distinct from the Rowe argument, rendering the latter unpreserved. Our principal divergence from 

Joseph comes in how to treat the error: we will review for plain 

error.29

The parties agree that Olano’s first and second prongs 

are satisfied, and so our focus is on the substantial-rights inquiry. In Vazquez, we confronted a § 841 violation of Apprendi 

v. New Jersey, 530 U.S. 466 (2000): “the drug quantity [wa]s 

not found by a jury beyond a reasonable doubt and the defendant’s sentence under § 841 exceed[ed] 20 years.” 271 F.3d at 

98. Because this violation involved both a sentencing error and 

a trial error, our substantial-rights inquiry asked whether “the 

sentence would have been the same absent the trial error.” Id.

29 The circuits are more divided on this question than on the 

preservation standard itself. One accepts full waiver, Porter, 

886 F.3d at 566; two review for “a manifest miscarriage of justice,” Chong Lam, 677 F.3d at 200 n.10; Graf, 610 F.3d at 

1166; one looks for “clear and gross injustice,” Marston, 694 

F.3d at 134; and five review for plain error, Samuels, 874 F.3d 

at 1036; Baston, 818 F.3d at 664; Hosseini, 679 F.3d at 550; 

Goode, 483 F.3d at 681; Spinner, 152 F.3d at 955. Our Court 

has in the past reviewed unpreserved sufficiency arguments for 

plain error. See United States v. Husmann, 765 F.3d 169, 172, 

173 n.2 (3d Cir. 2014); United States v. Sussman, 709 F.3d 155, 

162 (3d Cir. 2013). Given this practice, and the nature of the 

error here, we think plain-error review is appropriate.
58

at 101 (emphases omitted).

A similar approach is appropriate here. A Rowe error’s

principal effect goes to the sentence imposed. The “aggravated 

crime,” Alleyne, 570 U.S. at 116, charged in Count III encompasses the “lesser included offense” of a “[v]iolation of 

§ 841(a)(1),” Burrage v. United States, 571 U.S. 204, 210 n.3 

(2014). The default penalty for that offense is specified in 

§ 841(b)(1)(C). As a result, any prejudice arising from the

Rowe error concerns the length of the Defendants’ incarceration rather than the integrity of the general verdicts against 

them.30 And we may assume that any additional day an error 

causes a person to spend in prison affects his substantial rights. 

See, e.g., Molina-Martinez, 136 S. Ct. at 1345.

To determine whether the Defendants’ sentences would 

have been different absent the Rowe error, we may look in the 

first instance to the evidence supporting the verdicts on Count 

II—drug-trafficking conspiracy under 21 U.S.C. § 846.

31 As 

noted, the six challengers to Count III are the same six who 

30 No Defendant challenges his conviction of the lesser included offense of simple distribution. The Rowe error therefore 

did not affect the Defendants’ substantial rights regarding the 

$100 assessment for felony convictions pursuant to 18 U.S.C. 

§ 3013(a)(2)(A). See United States v. Tann, 577 F.3d 533, 539-

40 (3d Cir. 2009).

31 RICO caps violations at 20 years’ imprisonment unless “the 

violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” 18 U.S.C. 

§ 1963(a). Here, the alleged predicate offenses were violations 

of § 841(a)(1) at the § 841(b)(1)(A) quantities—for which the 

maximum penalty is life imprisonment. The conceded Rowe 

error therefore necessarily infects the validity of the sentences 

on Count I.
59

contest their convictions on Count II. These six were sentenced 

to concurrent terms of imprisonment on both counts. See supra

Section I.D. If the evidence is sufficient to support the jury’s 

drug-quantity attributions on Count II—and, in particular, the 

resulting maximum term of imprisonment under 

§ 841(b)(1)(A)32—then vacating the drug-quantity verdicts on 

Count III would not result in reduced sentences. It would, 

therefore, be unnecessary for us to correct the Rowe error.

2. Section 846 Conspiracy and Drug Quantity: The Legal 

Standard

Hernandez and Sistrunk contend that Rowe and Alleyne

also affect our evaluation of the evidence supporting the drugquantity verdicts on Count II. In particular, they argue that 

those decisions either transformed drug quantity into a mens 

rea element of § 846, or barred the aggregation of drug quantity for sentencing purposes under § 846. We reject the first 

argument, but qualifiedly agree on the second. We hold that a 

jury, in determining drug quantity for purposes of the mandatory minimum term of imprisonment, may attribute to a defendant only those quantities involved in violations of § 841(a) 

that were within the scope of the conspiracy, or in furtherance 

of it, and were reasonably foreseeable to the defendant as a natural consequence of his unlawful agreement.

Mental Element

Section 846 does not demand that a person conspire to 

distribute a particular quantity of a controlled substance. To see 

why, we must begin with the underlying statute. Under 

32 The statutory maximum term under § 841(b)(1)(C) is still 

greater than § 841(b)(1)(A)’s mandatory minimum, absent 

other aggravating facts—such as a prior serious drug felony 

conviction—that would apply anyway under (b)(1)(C).
60

§ 841(a)(1), “it shall be unlawful for any person knowingly or 

intentionally . . . to . . . distribute, or . . . possess with intent to 

. . . distribute, . . . a controlled substance.” This is the core offense—the interdiction backed by the state’s claim to a monopoly of legitimate physical violence. Section 841(b) makes this 

clear: it describes the penalties to be imposed upon “any person 

who violates subsection (a) of this section.” 21 U.S.C. 

§ 841(b). Properly speaking, then, a person who engages in 

drug trafficking violates § 841(a), and the penalty for that violation is to be determined according to § 841(b), which provides both a default penalty and heightened penalties based on 

certain additional factual findings. As a result, it is unnecessary 

for the jury to find that the defendant knew the quantity of the 

controlled substance he was distributing, or possessing with intent to distribute, at a given time. It is enough that the knowing 

or intentional distribution or possession occurred; the quantity 

is a factual finding that goes to the sentence to be imposed. See 

Burrage, 571 U.S. at 210-11 (interpreting § 841(b)(1)(C)’s “results from” enhancement as “impos[ing] . . . a requirement of 

actual causality,” rather than legal causality, and thus as requiring a factual finding of but-for causation); United States v. 

Dado, 759 F.3d 550, 570 (6th Cir. 2014).

This interpretation is consistent with Apprendi and Alleyne. The Court in those cases operated on an expansive definition of “crime” according to its “invariable linkage” with 

punishment, Apprendi, 530 U.S. at 478, rather than specifically 

the conduct and mental state deemed illegal. Yet the decisions 

did not fundamentally affect legislative authority to define a 

crime’s elements. In Apprendi, for example, the Court noted 

that traditionally, an indictment under a criminal statute that 

“annexe[d] a higher degree of punishment to a common-law 

felony, if committed under particular circumstances,” needed 

to charge both “the circumstances of the crime and the intent 
61

of the defendant at the time of commission,” and “the circumstances mandating [the higher] punishment.” Id. at 480 (quoting John Archbold, Pleading and Evidence in Criminal Cases

51 (15th ed. 1862)). Both were “essential elements to be alleged,” id., but a prosecutor could fail to prove the latter and 

still prove that the felony had been committed, id. at 480-81 

(citing Archbold, supra, at 188). As a result, although bundled 

in the broader concept of an “aggravated” crime, the statutory 

definitions of “[t]he core crime” and the “triggering” fact remain the same. Alleyne, 570 U.S. at 113. In the context of 

§ 841(a) and (b), that means the defendant need not consciously cognize the amount he is distributing in order to violate the law.

The same logic applies to drug-trafficking conspiracies 

under § 846. The statute provides: “Any person who . . . conspires to commit any offense defined in this subchapter shall 

be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy.” In the case of a drug-trafficking conspiracy, the “offense” conspired is a violation of § 841(a), and the penalty for 

this distinct crime—conspiracy to violate § 841(a)—is provided in § 841(b). For the same reason, then, that drug quantity 

is not a mens rea element under § 841(a), it is not one under 

§ 846.

Drug-Quantity Aggregation

The Defendants alternatively argue that just as Rowe

and Alleyne bar the aggregation of drug quantity for discrete 

violations of § 841(a)(1), so they also bar aggregation for violations of § 846. The Government responds by referring to 

United States v. Gori, 324 F.3d 234 (3d Cir. 2003), for the 

proposition that the penalty for drug-trafficking conspiracy under § 846 can be calculated according to the total amount of 
62

drugs in the conspiracy. We agree with neither side fully. When 

determining drug quantity for purposes of a defendant’s mandatory minimum sentence, a jury must follow the ordinary limitations on co-conspirator liability. Because that principle was 

not followed here, we conclude that an error occurred on the 

Count II drug-quantity verdicts.

In Gori, we recognized that the general principles of 

conspiracy law may influence a defendant’s sentencing exposure under § 846. When Congress borrows a legal term of art

in a criminal law, it is presumed to “know[] and adopt[] the 

cluster of ideas that were attached” to that term and “the meaning [the term’s] use will convey to the judicial mind,” absent 

provision to the contrary. Morissette v. United States, 342 U.S. 

246, 263 (1952). Section 846 is a law of this type, and so our 

interpretation of it ought, where relevant, to have reference to 

the “well-established principles,” Salinas v. United States, 522 

U.S. 52, 63 (1997), of conspiracy law. See, e.g., Smith v. United 

States, 568 U.S. 106, 110-11 (2013).

It is elementary that the “agreement to commit an offense does not become several conspiracies because it continues over a period of time.” Braverman v. United States, 317 

U.S. 49, 52 (1942). “[A] single continuing agreement to commit several offenses” is equally a violation of the relevant conspiracy statute as a one-off agreement to commit a single offense. Id.; see also United States v. Kissel, 218 U.S. 601, 607 

(1910). Gori simply applied this principle in the context of a

§ 846 drug-trafficking conspiracy: one can conspire to violate 

§ 841(a) multiple times, and this may constitute a single violation of § 846. 324 F.3d at 237. Moreover, because § 846 ties 

its penalty to that of the substantive offense, and because, by 

our foregoing logic, it is § 841(a) specifically that is conspired 

to be violated, Gori’s interpretation of how to penalize a multioffense drug-trafficking conspiracy remains good law.
63

Yet, importantly, Gori concerned the aggregation of 

drug quantities arising from the offenses of the same defendant. See 324 F.3d at 236. Equally central to conspiracy law is 

the concept of co-conspirator liability. “It has always been, . . 

. and is still, the law that, after prima facie evidence of an unlawful combination has been introduced, the act of any one of 

the co-conspirators in furtherance of such combination may be 

properly given in evidence against all.” Bannon v. United 

States, 156 U.S. 464, 469 (1895). The “unlawful agreement 

contemplated precisely what was [to be] done,” it “was formed 

for the purpose” of committing a crime or crimes, and so the 

“act of one partner in crime is attributable to all.” Pinkerton v. 

United States, 328 U.S. 640, 647 (1946). Although thus expanding liability, this logic contains its own limiting principle: 

the act must be “done in furtherance of the conspiracy,” or “fall 

within the scope of the unlawful project.” Id. at 647-48. A 

“ramification[] of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful 

agreement” does not bind the co-conspirator. Id. at 648. “Nobody is liable in conspiracy except for the fair import of the 

concerted purpose or agreement as he understands it.” United 

States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938) (L. Hand, J.).

These principles inform the extent of a defendant’s sentencing exposure under § 846. In a post-Apprendi case, we held 

that in prosecutions of multi-person drug-trafficking conspiracies, “[t]he [jury’s] finding of drug quantity for purposes of determining the statutory maximum is . . . to be an offense-specific, not a defendant-specific, determination.” United States v. 

Phillips, 349 F.3d 138, 143 (3d Cir. 2003), vacated on other 

grounds sub nom. Barbour v. United States, 543 U.S. 1102 

(2005). In other words, the jury finds only the quantity attributable to “the conspiracy as a whole,” and then the sentencing 
64

judge determines “the drug quantity attributable to each defendant and sentence[s] him or her accordingly, provided that 

the sentence does not exceed the applicable statutory maximum.” Id. “Accomplice attribution,” we recognized long before Phillips, “often results in a dramatic increase in the 

amount of drugs for which the defendant is held accountable, 

which translates directly into a dramatic increase in the sentence.” United States v. Collado, 975 F.2d 985, 995 (3d Cir. 

1992). And so, “at sentencing, it is essential for courts to conduct ‘a searching and individualized inquiry into the circumstances surrounding each defendant’s involvement in a conspiracy to ensure that the defendant’s sentence accurately reflects his or her role.’” United States v. Metro, 882 F.3d 431, 

439 (3d Cir. 2018) (alterations omitted) (quoting Collado, 975 

F.2d at 995).

Phillips’s holding did not apply to mandatory minimum 

sentences. We adopted in that case the reasoning of three of 

our sister circuits, see Phillips, 349 F.3d at 141-42 (citing 

United States v. Knight, 342 F.3d 697, 710-11 (7th Cir. 2003); 

United States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003); 

and Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 

2002)), and those courts do not employ a conspiracy-wide approach in the context of mandatory minimums, see United 

States v. Haines, 803 F.3d 713, 741-42 & n.9 (5th Cir. 2015);

United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004);

Knight, 342 F.3d at 711. Phillips said nothing to the contrary, 

consistent with Collado: the jury sets the maximum according 

to the total amount of drugs in the conspiracy, and the sentencing judge conducts an individualized inquiry to determine the 

penalty for each co-conspirator.

Alleyne alters this regime. Since that decision, several 

circuits—including the First and the Fifth—have held that the 
65

jury, in determining (as Alleyne requires) drug quantity for purposes of the mandatory minimum, may attribute to a defendant 

only that “quantity which was within the scope of the agreement and reasonably foreseeable to him.” United States v. 

Dewberry, 790 F.3d 1022, 1030 (10th Cir. 2015) (internal quotation marks omitted); see also United States v. Stoddard, 892 

F.3d 1203, 1221 (D.C. Cir. 2018); Haines, 803 F.3d at 740; 

United States v. Rangel, 781 F.3d 736, 742-43 (4th Cir. 2015); 

United States v. Pizarro, 772 F.3d 284, 292-93 (1st Cir. 

2014).33

We adopt here a similar, though not the same, approach. 

The jury, when determining drug quantity for purposes of the 

mandatory minimum, may attribute to a defendant only those 

quantities involved in violations of § 841(a) that were within 

the scope of, or in furtherance of, the conspiracy and were reasonably foreseeable to the defendant as a consequence of the 

unlawful agreement.34 We take this approach for two reasons. 

First, it follows from the basic principles of our prece33 The Sixth Circuit has adopted the conspiracy-wide approach 

for statutory minimum and maximum sentences. See United 

States v. Gibson, No. 15-6122, 2016 WL 6839156, at *1 (6th 

Cir. Nov. 21, 2016) (citing United States v. Robinson, 547 F.3d 

632 (6th Cir. 2008)), aff’d by an equally divided court, 874 

F.3d 544 (6th Cir. 2017) (mem).

34 The quantity of drugs for which conspirators can be held accountable is not limited to amounts distributed or possessed 

with intent to distribute. It also includes amounts that conspirators agreed to distribute or possess with intent to distribute, 

even if those amounts were not actually distributed or possessed.
66

dent. In Rowe, we acknowledged that because the drug quantities specified in § 841(b)(1)(A) and (b)(1)(B) increase the mandatory minimum, they constitute facts that must be submitted 

to the jury for each violation of § 841(a)(1). Gori is consistent 

with Rowe because conspiracy law encompasses a continuing 

agreement to commit several offenses, and so the penalty for a 

violation of § 846 is appropriately calculated according to the 

aggregate drug quantity involved in a defendant’s continuous 

execution of the unlawful agreement. Under Alleyne, the jury 

must determine this quantity to set the mandatory minimum. 

Our holding here follows from the same rationale, applying to 

this landscape another dimension of conspiracy law—co-conspirator liability—that must be considered by the jury. Where 

Gori held that the drug quantities involved in a single conspirator’s multiple violations of § 841(a) may be aggregated for purposes of his sentence, we hold that the quantities involved in 

the § 841(a) violations of multiple conspirators may be aggregated for determining the mandatory minimum of any one conspirator, subject to the ordinary limitations on co-conspirator 

liability.35

35 Pinkerton concerned liability for a distinct substantive offense committed by a co-conspirator in furtherance of the conspiracy, rather than liability for the conspiracy offense itself. 

However, its holding was simply an extension of an already 

well-established principle that the act of a co-conspirator in 

furtherance of the scheme is the act of all for purposes of conspiracy liability. See Pinkerton, 328 U.S. at 647. Our holding 

here applies that idea to the § 846 drug-trafficking context. Further, we think Pinkerton’s limitations on co-conspirator liability apply to liability not only for a co-conspirator’s substantive 

offense, but also under the relevant conspiracy statute. See, 

e.g., Peoni, 100 F.2d at 403.
67

Second, the approach is most consistent with our preAlleyne regime. Phillips ensured that the jury would set the 

maximum term a defendant could spend in prison, leaving it to 

the judge to determine each co-conspirator’s individual sentencing exposure under § 841(b). Here we transfer some of that 

latter inquiry to the jury, as Alleyne requires. Yet in doing so, 

we must necessarily alter it. Under Collado, the judge at sentencing must “consider whether the amounts distributed by the 

defendant’s co-conspirators . . . were reasonably foreseeable in 

connection with the criminal activity the defendant agreed to 

undertake.” 975 F.2d at 995 (internal quotation marks omitted) 

(emphasis added). But as we have said, drug quantity is not a 

mens rea element under § 846, and co-conspirator liability extends to acts or omissions that are reasonably foreseeable as a 

consequence of the unlawful agreement. Accordingly, we think 

the proper inquiry is to determine the violations of § 841(a) 

within the scope of the conspiracy, or in furtherance of it, that 

were reasonably foreseeable to the defendant as a natural result 

of his unlawful agreement. All drug quantities involved therein 

are attributable to the defendant.36

36 Collado’s specification that drug quantity itself needed to be 

reasonably foreseeable was based on an application note of 

U.S.S.G. § 1B1.3. And “[w]e have . . . explained that the conduct a defendant is typically held responsible for under the 

guidelines is not coextensive with conspiracy law.” Metro, 882 

F.3d at 439 (internal quotation marks omitted). Moreover, in 

2015, the Sentencing Commission amended the relevant application note so that it now reads: “With respect to offenses involving contraband (including controlled substances), the defendant is accountable [for] . . . all quantities of contraband that 

were involved in transactions carried out by other participants, 
68

We thus agree with Hernandez and Sistrunk that an error occurred as to Count II. The jury rendered its verdicts by

considering only the amount of drugs involved in the conspiracy as a whole. But for the same reasons given above with respect to the Rowe error on Count III—the drug-trafficking 

count—this argument was not preserved in the Defendants’ 

Rule 29 motions, and so our review is for plain error. We may 

assume that Olano’s second prong is satisfied. On the third 

prong, our logic with respect to the Rowe error applies similarly here. The error goes to the sentences imposed, and because (as we hold below) the Count II verdicts otherwise stand, 

we may determine whether there is “a reasonable probability 

that, but for the error claimed,” the Defendants’ terms of imprisonment would have been different. Dominguez Benitez, 

542 U.S. at 82 (alteration and citation omitted).37 Further, 

given our conclusions in Part VI below, with one exception,38

the Defendants’ sentences include incarceration in excess of 

§ 841(b)(1)(A)’s mandatory minimum. The error, then, did not 

affect their substantial rights.

B. Count I: RICO Conspiracy

Having clarified the legal framework of our inquiry, we 

now turn to the sufficiency of the evidence on Counts I and 

II—RICO conspiracy and drug-trafficking conspiracy. Both 

offenses may arise from the same set of facts because they follow from the general principles of conspiracy law. Here, the 

operative indictment incorporated its allegations at Count I as 

if those transactions . . . were reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n.3 

(emphasis added).

37 Our discussion above of the $100 assessment for felony convictions, see supra note 30, thus also applies here.

38 Hernandez. See infra Section VI.A.2.
69

the basis for its charge at Count II. And, as we shall see, the 

evidence supporting the Count I convictions overlaps with that 

supporting the convictions on Count II.39 We hold that a rational juror could have concluded that each of the Defendants 

convicted on Count I was guilty as charged.40

1. The Elements of the Offense

Conspiracy Generally

The fountainhead of any criminal conspiracy is the 

agreement: when “two or more . . . confederate and combine 

together, by concerted means, to do that which is unlawful or 

criminal.” Callan v. Wilson, 127 U.S. 540, 555 (1888). Under 

both the RICO- and the drug-trafficking-conspiracy statutes, 

18 U.S.C. § 1962(d) and 21 U.S.C. § 846, “the Government 

must prove beyond a reasonable doubt that two or more people 

agreed to commit a crime covered by the specific conspiracy 

statute (that a conspiracy existed) and that the defendant knowingly and willfully participated in the agreement (that he was a 

member of the conspiracy).” Smith, 568 U.S. at 110. The statutes are therefore “even more comprehensive than the general 

conspiracy offense in [18 U.S.C.] § 371” because they do not 

require an overt act. Salinas, 522 U.S. at 63; see also United 

States v. Shabani, 513 U.S. 10, 17 (1994).

Further, the RICO or drug-trafficking conspiracy may 

continue over time and embrace a multitude of objects. Smith, 

39 Of the six Defendants raising a sufficiency challenge on 

Count II, only Rice was not convicted on Count I. We address 

the evidence supporting his conspiracy conviction in Section 

V.C.2 below.

40 We consider here only the sufficiency of the evidence supporting the jury’s general verdicts on Count I—commission of 

the substantive offense. See supra note 31.
70

568 U.S. at 111. It may exist even if an individual conspirator 

“does not agree to commit or facilitate each and every part of 

the” contemplated crime or crimes. Salinas, 522 U.S. at 63. 

Nor even must the conspiracy actually achieve any or all of its 

criminal ends. United States v. Rabinowich, 238 U.S. 78, 86 

(1915). It is enough that the conspirator “intend[s] to further an 

endeavor which, if completed, would satisfy all of the elements 

of a substantive criminal offense.” Salinas, 522 U.S. at 65.

Thus involved, each conspirator is subject to the ordinary principles of co-conspirator liability. Smith, 568 U.S. at 

111 (citing Pinkerton, 328 U.S. at 646). And he continues to 

be liable “up to the time of abandonment or success.” Kissel, 

218 U.S. at 608. Indeed, “a defendant’s membership in the conspiracy, and his responsibility for its acts, endures even if he is 

entirely inactive after joining it.” Smith, 568 U.S. at 114; see 

also Callanan v. United States, 364 U.S. 587, 593 (1961)

(“Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex 

than those which one criminal could accomplish.”). Once the 

prosecution has proved both the existence of a conspiracy 

across a period of time and the defendant’s participation in that 

conspiracy, the burden falls on the defendant to establish his 

withdrawal prior to the completion of the period. Smith, 568 

U.S. at 113. If he does not show “some [affirmative] act to disavow or defeat the purpose” of the conspiracy, then he must 

“incur the guilt” attendant upon its continuance. Hyde v. United 

States, 225 U.S. 347, 369-70 (1912).

Section 1962(c)

Seven Defendants were convicted of conspiracy to violate 18 U.S.C. § 1962(c). That provision declares in relevant 

part:

It shall be unlawful for any person . . . associated 
71

with any enterprise engaged in, or the activities 

of which affect, interstate . . . commerce, to conduct or participate, directly or indirectly, in the 

conduct of such enterprise’s affairs through a 

pattern of racketeering activity . . . .

For our purposes here, the final two elements are the most significant: participation in (1) the conduct of an enterprise (2) 

through a pattern of racketeering activity.

RICO defines an “enterprise” to “include[] any individual, partnership, corporation, association, or other legal entity, 

and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). In the present 

cases, the enterprise was said to be the “Southside Gang,” 

which was “a group of individuals associated in fact.” App. 25. 

The jury was charged and returned its verdicts on this theory. 

Despite considerable dispute at trial and in the briefs before us, 

the term “gang” has no talismanic significance in the RICO 

context. An association-in-fact enterprise, the Supreme Court 

has said, is “an entity, for present purposes a group of persons 

associated together for a common purpose of engaging in a 

course of conduct.” United States v. Turkette, 452 U.S. 576, 

583 (1981). This definition entails “at least three structural features: a purpose, relationships among those associated with the 

enterprise, and longevity sufficient to permit these associates 

to pursue the enterprise’s purpose.” Boyle v. United States, 556 

U.S. 938, 946 (2009). Beyond this the proof need not go: “an 

association-in-fact enterprise is simply a continuing unit that 

functions with a common purpose.” Id. at 948.

Next, “racketeering activity” is said to “mean[]” certain 

criminal acts defined by statute, including “any offense involving . . . the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled 
72

substance.” 18 U.S.C. § 1961(1)(D). A “pattern of racketeering 

activity” in turn “requires at least two acts of [such] activity, . 

. . the last of which occurred within ten years (excluding any 

period of imprisonment) after the commission of a prior act of 

racketeering activity.” Id. § 1961(5); see H.J. Inc. v. Nw. Bell 

Tel. Co., 492 U.S. 229, 239 (1989) (“[A] . . . prosecutor must 

show that the racketeering predicates are related, and that they 

amount to or pose a threat of continued criminal activity.” (emphasis in original)). Although the evidence establishing an enterprise and a pattern of racketeering activity “may in particular 

cases coalesce,” the two elements themselves remain “at all 

times” distinct. Turkette, 452 U.S. at 583.

Section 1962(d)

As relevant here, to be liable for RICO conspiracy under 

§ 1962(d), a defendant must “intend to further an endeavor 

which, if completed, would satisfy all of the elements of 

[§ 1962(c)].” Salinas, 522 U.S. at 65. That endeavor may be 

both the enterprise and the conspiracy, for the two crimes can 

be “coincident in their factual circumstances.” Id. It is a “person,” not the enterprise itself, who violates § 1962(c) by “conduct[ing] or participat[ing]” in the enterprise’s affairs “through 

a pattern of racketeering activity.” 18 U.S.C. § 1962(c); see 

United States v. Bergrin, 650 F.3d 257, 267 (3d Cir. 2011) (citing H.J. Inc., 492 U.S. at 244). The nature of the liability therefore depends upon the circumstances. A defendant may be a 

party to the enterprise, not violate § 1962(c), but still be liable 

under § 1962(d). He need not “commit or agree to commit the 

two or more predicate acts requisite to [§ 1962(c)].” Salinas, 

522 U.S. at 65. Nor even, thanks to the absence of an overt-act 

requirement, must one of his co-conspirators actually violate 

§ 1962(c). See id. at 63. It is enough that the defendant “knew 

about and agreed to facilitate the scheme” which at least would 

have resulted in the satisfaction of § 1962(c)’s elements. Id. at 
73

66; see also United States v. Fattah, 914 F.3d 112, 164 (3d Cir. 

2019).

Thus, consistent with the general principles of conspiracy law recited above, conspiracy to violate § 1962(c) requires: 

(1) that two or more persons agree to further an enterprise 

whose activities affect or would affect interstate or foreign 

commerce, and whose execution results or would result in a 

person conducting or participating directly or indirectly in the 

enterprise’s affairs through a pattern of racketeering activity; 

(2) that the defendant was a party to or a member of this agreement; and (3) that the defendant joined the agreement knowing 

of its objectives and with the intention of furthering or facilitating them. See United States v. John-Baptiste, 747 F.3d 186, 

207 (3d Cir. 2014).

2. The Evidence

In any review of the sufficiency of the evidence supporting a criminal conviction, “the relevant question is whether, 

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S 307, 319 (1979) (emphasis in 

original). The Government may prove the existence of a conspiracy entirely through circumstantial evidence. United States 

v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986). In such instances, 

we sustain the verdict if the proof “appears as a reasonable and 

logical inference” from “evidence of related facts and circumstances.” United States v. Brodie, 403 F.3d 123, 134 (3d Cir. 

2005) (citation omitted). And we “must credit all available inferences in favor of the government.” Fattah, 914 F.3d at 162 

(citation omitted).

The Defendants—Cruz, Hernandez, Villega, Kelly, Atkinson, Sistrunk, and Eatmon—contend that the alleged South 
74

Side gang did not amount to an enterprise for purposes of 

RICO liability. They point to testimony that the South Side was 

simply a neighborhood where the Defendants grew up or lived; 

that the drug dealing that occurred there amounted at best to 

parallel conduct by independent actors; and that any violent incidents were the product of personal “beefs.”

It is undeniable that the drug dealers operating on the 

South Side during the indictment period did not constitute a 

gang on the order of the Bloods or Crips. Nor was this a trafficking operation to rival the ’Ndrangheta. Yet that is not what 

RICO requires. The evidence need only support the conclusion 

that each of these seven Defendants at least agreed to further a 

continuing unit that functioned with a common illegal purpose.

Testimony showed that as early as 2002, Cruz, Hernandez, and Kelly supplied crack to Atkinson and Eatmon in the 

area around Maple and Duke. App. 3543-47, 3633-34; see also 

App. 1503-07. Hernandez and Kelly also, it was said, helped 

to introduce guns to the South Side, at least partially in response to fighting with Parkway. App. 3553. A few years later, 

Sistrunk began selling drugs at Maple and Duke. App. 3559-

60. By that time, however, Cruz, Hernandez, and Kelly had 

been incarcerated, and so Atkinson, Eatmon, and Sistrunk, 

among others, began collectively to traffic in large quantities 

of crack. App. 3570-75, 3830-31; see also App. 2110-11; 

3138-39. Their profits were all earned separately, App. 3817-

18, but nevertheless the men sometimes shared scales and 

bought or fronted drugs among each other, App. 3574.

This association persisted into the next decade. See, e.g., 

App. 2456-57. In June 2011, while in prison, Villega told Warren Pillgreen to “straighten out that package,” referring to a 

drug debt Pillgreen owed to Hernandez. App. 3016. A few 

months later, shortly before Pillgreen’s release from prison, 
75

Cruz engaged him to “commit an act of violence” to settle the 

debt. App. 3018. By 2012, Cruz and Hernandez were still supplying substantial amounts of crack, and Kelly was present for 

these transactions. App. 3644-48. In September, Cruz, Hernandez, Kelly, Atkinson, and Eatmon were involved in a physical 

altercation between South Side and Parkway at Rutter’s gas 

station. App. 3649-63. The Latham homicide occurred just 

over two months later—an event, we have seen, in which Hernandez, Cruz, Kelly, and perhaps Sistrunk played a part. App. 

36370-71; 3859-61. Finally, in early 2014, Villega’s floormate 

at a halfway house worked with him to sell heroin, and occasionally observed him with other individuals coming to and 

from the house’s basement. App. 4513-16. When police later 

searched the house, they discovered approximately 13.5 grams 

of heroin and 61 grams of crack in the basement, and a photograph in Villega’s bedroom of himself, Cruz, and Hernandez. 

App. 4561, 4567-68.

A rational juror could conclude from this evidence—

and, more generally, from the entire body of evidence—that 

each of the seven challengers agreed to further an enterprise 

whose predominant common purpose was “making money” 

through the sale of controlled substances, but which also occasionally embraced related ends, such as “protecting its own 

members and criminal schemes.” See Bergrin, 650 F.3d at 269. 

As noted, the conspiracy and the enterprise need not be distinct, 

and a continuing unit for purposes of RICO may exist even if 

a given Defendant was not always active. See Boyle, 556 U.S. 

at 948 (“[N]othing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.”); see also Smith, 568 U.S. at 114. Here, each of the 

Defendants persisted in the group’s concerted illicit activities 

over an extended period of time, operating within the larger, if 

“relatively loose and informal,” Bergrin, 650 F.3d at 269, 
76

structure of the South Side’s drug blocks. Based on this evidence, we cannot say that no rational juror would find the Defendants guilty of RICO conspiracy under § 1962(d).

C. Count II: Drug-Trafficking Conspiracy

We proceed, finally, to the evidence supporting the convictions on Count II. Six Defendants—Hernandez, Villega, 

Rice, Kelly, Sistrunk, and Eatmon—challenge the sufficiency 

of this evidence. We hold that a rational juror could have found 

each of the challengers guilty under § 846 and attributed to him 

the § 841(b)(1)(A) quantities for purposes of his statutory maximum term of imprisonment.

1. The Elements of the Offense

We have already described some of the basic principles 

governing a defendant’s liability under § 846 for participation 

in a drug-trafficking conspiracy. See supra Sections V.A.2, 

V.B.1. Our precedent and the foregoing discussion establish 

three basic elements that the jury must find beyond a reasonable doubt.

First, there must be a conspiracy—an agreement among 

two or more persons to achieve by concerted means an illegal 

goal. It has long been settled in our Court that to prove a drugtrafficking conspiracy, “the government must establish a unity 

of purpose between the alleged conspirators, an intent to 

achieve a common goal, and an agreement to work together 

toward that goal.” Gibbs, 190 F.3d at 197. A conspiracy under 

§ 846 becomes a drug-trafficking conspiracy when that common goal is a violation or violations of § 841(a). But “[t]he 

government need not prove that each defendant knew all of the 

conspiracy’s details, goals, or other participants.” United 

States v. Bailey, 840 F.3d 99, 108 (3d Cir. 2016) (internal quotation marks omitted). The agreement “is the essence of the of-
77

fense,” and “the presence of certain facts often provides circumstantial evidence of the underlying agreement.” United 

States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001).

Second, the defendant must have been a member of the 

conspiracy. He must be shown to have intended to further a 

scheme whose execution he knew would or did result in the 

commission of each element of the substantive offense. Under 

this latter “knowledge” requirement, the government must 

prove “that the defendant had knowledge of the specific objective contemplated by the . . . conspiracy.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 425 (3d Cir. 2013) (en banc). 

In the present context, that means he must have known that the 

conspiracy would or did result in the distribution of a controlled substance.

Although the evidence establishing the existence of a 

conspiracy may coincide with proof of participation in that 

conspiracy, “certain types of circumstantial evidence become 

substantially more probative if it can be established that a conspiracy existed and the only remaining question is whether the 

defendant was a part of it.” Pressler, 256 F.3d at 151. “[A]

simple buyer-seller relationship,” however, “without any prior 

or contemporaneous understanding beyond the sales agreement itself, is insufficient to establish that the buyer was a 

member of the seller’s conspiracy.” Gibbs, 190 F.3d at 197. 

Rather, the “buyer” is liable under § 846 only if direct or circumstantial evidence shows that he knew “he was part of a 

larger operation.” United States v. Price, 13 F.3d 711, 728 (3d 

Cir. 1994); see also Gibbs, 190 F.3d at 199-200 (listing several 

factors for making this determination). 

Third, if the indictment charges drug quantities pursuant 

to § 841(b)(1)(A) or (b)(1)(B), then the statutory maximum 

term of imprisonment is to be determined according to the 
78

amount of drugs involved in the conspiracy as a whole. Phillips, 349 F.3d at 143. The mandatory minimum, however, may 

be determined only according to the aggregate quantity of 

drugs involved in those violations of § 841(a) that were within 

the scope of the conspiracy, or in furtherance of it, and were 

reasonably foreseeable to the defendant as a natural consequence of his unlawful agreement. See supra Section V.A.2.

2. The Evidence

We proceed generally according to the sufficiency-ofthe-evidence standard recited above. In cases of drug-trafficking conspiracy, “the verdict must be upheld as long as it does 

not ‘fall below the threshold of bare rationality.’” CaraballoRodriguez, 726 F.3d at 431 (quoting Coleman v. Johnson, 566 

U.S. 650, 656 (2012)).

The challengers contest the jury’s verdicts on two 

grounds. First, they contend there was no evidence of an agreement either to form a conspiracy or to join one. Second, they 

dispute the evidence as to drug quantity. We consider each argument in turn.

Agreement

Our foregoing discussion establishes the common foundation of RICO and drug-trafficking conspiracy in the general 

principles of conspiracy law. The two offenses may be coincident in their factual circumstances, especially where the pattern 

of racketeering activity involves “the felonious manufacture, . 

. . buying, selling, or otherwise dealing in a controlled substance.” 18 U.S.C. § 1961(1)(D). In the present cases, our evaluation of the evidence supporting the Count I convictions of 

Hernandez, Villega, Kelly, Sistrunk, and Eatmon also applies 

here with regard to the requisite conspiratorial agreement. See 

United States v. Rodríguez-Torres, 939 F.3d 16, 30 (1st Cir. 

2019) (resolving defendants’ sufficiency challenges to drug-
79

trafficking-conspiracy convictions on the basis of a preceding 

resolution of their sufficiency challenges to their RICO-conspiracy convictions).

The only Defendant to challenge his Count II conviction 

who was not convicted on Count I is Rice. He argues that there 

is insufficient evidence showing that he ever joined the charged 

conspiracy—that he was, at most, a street-level dealer who 

abandoned that lifestyle upon his release from prison in 2013. 

The evidence in the record belies this argument. For example, 

Cordaress Rogers testified that he, Rice, Atkinson, Sistrunk, 

and Eatmon were “at one time in life . . . like[] brothers” and 

would hang out and sell drugs together every day around Maple and Duke. App. 3571. This went beyond friendship to mutual facilitation of drug trafficking. They would gather at each 

other’s houses to sell drugs; they would buy drugs from each 

other or front them to each other when one ran out; they would 

share scales for measuring the drugs. App. 3572-74. They sold 

primarily to dealers, rather than users. App. 3830-31. Further, 

upon his release from prison in late July 2008, Rice returned to 

the South Side. At that point, Jerrod Brown identified Rice as 

handling guns and seeking retribution for the shooting of Jahkeem Abney outside the night club in mid-March 2009. App. 

2113-14. Finally, Brown also testified that sometime after May 

2013—which would have been shortly after Rice’s release 

from prison—Rice supplied him with crack. App. 2163-64.

Based on this evidence, a reasonable juror could conclude that Rice was consciously and willingly a part of a larger 

drug-trafficking operation and remained so even after periods 

of imprisonment. See Gibbs, 190 F.3d at 200.

Drug Quantity

A rational juror also could conclude that Hernandez, 
80

Villega, Rice, Kelly, Sistrunk, and Eatmon were each responsible, on a conspiracy-wide basis, for 280 grams or more of 

crack cocaine. Rogers’s testimony alone indicated that in the 

early years just after 2002, he received 1 kilogram of crack 

from each of Hernandez, Kelly, and Cruz. App. 3633-34. At 

that time, he was close with Atkinson, Rice, and Eatmon, who 

were receiving drugs from Hernandez and Kelly in similar 

quantities. App. 3543-45. Rogers also estimated that in later 

years, when he, Atkinson, Rice, Sistrunk, and Eatmon worked 

closely together, he would bring back from New York 500-

1000 grams of crack “[e]very couple of days.” App. 3573. He 

testified that in this time he distributed and saw his friends distribute “many kilos of crack.” App. 3575. Moreover, to the extent that any of the Defendants were incarcerated and could not 

have been present for the movement of these quantities, their 

renewed drug dealing upon release from prison confirms their 

continuing liability for acts in furtherance of the conspiracy, 

even apart from the absence of an affirmative act of withdrawal. See Hyde, 225 U.S. at 369-70.

Finally, as noted above, Villega aided Hernandez in the 

collection of a drug debt by warning Pillgreen to “straighten 

out that package.” App. 3016. Marquis Williams testified that 

Villega fronted him 6 grams of heroin in 2013. App. 2443-44, 

2655. By early 2014, Villega was still dealing heroin, App. 

4513-16, and police later recovered about 13.5 grams of heroin 

and 61 grams of crack from the basement Villega was seen to 

frequent with others. App. 4561. In just that timeframe, from 

2011 to 2014, Rogers testified that he received 156 grams of 

crack from Cruz and Hernandez, App. 3645-46, and Marquis 

Williams said he sold 50-gram quantities of crack on “several” 

occasions, App. 2442. Based on this evidence alone, an attribution to Villega of over 280 grams of crack on a conspiracywide basis does not fall below the threshold of bare rationality.
81

***

There was sufficient evidence upon which a rational juror could have concluded that these six Defendants were guilty 

under § 846 and were responsible for 280 grams or more of 

crack. Because we reach this conclusion, we further conclude 

that the Rowe error on Count III did not affect their substantial 

rights. Their statutory maximum terms of imprisonment would 

have been life even if the Rowe error had not occurred.

VI. SENTENCING

The final category of issues concerns the sentences imposed in the years following the trial. All the Defendants challenge various aspects of those judgments.41 For the reasons that 

follow, we will affirm the judgments of sentence of Williams 

and Rice. But we will vacate Hernandez’s judgment of sentence in full, the other Defendants’ judgments of sentence in 

part, and remand the cases of Hernandez and Schueg for resentencing proceedings consistent with this opinion.

A. Individual Challenges

1. Williams

Jabree Williams’s Presentence Report (PSR) recommended a Guidelines range of 78-97 months in prison. The 

District Court sentenced him to 60 months, the mandatory min41 Some Defendants have sought, pursuant to Rule 28(i), to 

adopt sentencing challenges of others. However, general adoptions or ones that concern an argument specific to the arguing 

party will not be regarded, if they are not accompanied by further elaboration. We refuse to speculate on how an issue applies to a Defendant’s sentencing judgment when he himself 

has declined to do so.
82

imum, based upon time served for two prior state drug convictions. The Court also recommended that the Bureau of Prisons 

credit Williams with an additional 13 months for time served 

on a prior juvenile offense, and with approximately 28-29 

months for time in federal custody.

Williams raises only one issue on appeal. The District 

Court, he contends, should have credited the 13-month term 

because 18 U.S.C. § 3584, as applied here, violates his Fifth 

Amendment due process right. That provision states, in relevant part: “if a term of imprisonment is imposed on a defendant 

who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 

U.S.C. § 3584(a). Williams argues that the statute draws an arbitrary distinction between discharged and undischarged sentences. The Government counters that Williams did not raise 

this issue contemporaneously, and that a reversible plain error 

did not occur. Williams offers no reply, and there is no evidence suggesting preservation. Our review, then, is for plain 

error.

We need not address the merits of Williams’s constitutional challenge to § 3584. For even if there was an error, it 

was not plain. A “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” 

Olano, 507 U.S. at 734. Every court of appeals to have considered the issue, or a related challenge to U.S.S.G. § 5G1.3(b), 

has rejected Williams’s argument. See United States v. Lucas, 

745 F.3d 626, 630-31 (2d Cir. 2014) (per curiam); United 

States v. Dunham, 295 F.3d 605, 610-11 (6th Cir. 2002); 

United States v. Otto, 176 F.3d 416, 418 (8th Cir. 1999). Only 

a district court, in another circuit, has held to the contrary. 

United States v. Hill, 187 F. Supp. 3d 959, 965 (N.D. Ill. 2016). 

Given the balance of such authority, it cannot be said the assumed error here is “‘obvious’ or ‘clear under current law.’” 
83

Vazquez, 271 F.3d at 100 (quoting Olano, 507 U.S. at 734). We 

reserve for another day our own views on the merits.

2. Hernandez

At Hernandez’s sentencing hearing, his attorney, Morris, stated that “Mr. Hernandez does not desire to address the 

court this morning. However, he did want me to say that he 

wanted to thank his family for their support of him throughout 

this process, and so we’d have nothing further beyond that.” 

App. 289. The District Court accepted this submission, and, 

after allowing the Government an opportunity to speak, announced its judgment. It did not address Hernandez personally, 

and neither Morris nor the Government raised Hernandez’s 

right to allocution. See Fed. R. Crim. P. 32(i)(4)(a)(ii); Green 

v. United States, 365 U.S. 301, 305 (1961) (plurality opinion); 

id. at 307 (Black, J., dissenting).

Hernandez now argues that he is entitled to resentencing 

proceedings under United States v. Adams, 252 F.3d 276 (3d 

Cir. 2001). The Government concedes the point, but it asserts 

without elaboration that resentencing “should be limited to 

providing Hernandez the opportunity to allocute should he so 

desire.” Gov’t Br. at 212. We disagree. In Hill v. United States, 

368 U.S. 424 (1962), the Supreme Court cited Van Hook v. 

United States, 365 U.S. 609 (1961) (per curiam), for the appropriate remedy in direct appeals. 368 U.S. at 429 n.6. Van Hook

is a one-sentence opinion, stating: “The judgment is reversed 

and the case remanded for resentencing in compliance with” 

Rule 32 and Green. 365 U.S. at 609. This language provides 

no indication of a limited remand, and our post-Adams cases 

have not applied such a remedy. See United States v. Chapman, 

915 F.3d 139, 147 (3d Cir. 2019); United States v. Paladino, 

769 F.3d 197, 204 (3d Cir. 2014); United States v. Plotts, 359 
84

F.3d 247, 251 (3d Cir. 2004). Hernandez is entitled to a resentencing proceeding, with all its attendant considerations.42 See, 

e.g., Pepper v. United States, 562 U.S. 476 (2011). However, 

the District Court may, in its discretion, allow the Government 

to offer new evidence. United States v. Dickler, 64 F.3d 818, 

831-32 (3d Cir. 1995).

3. Kelly

Kelly brings several challenges to his concurrent life 

sentences. Five of those challenges are unique to him. He asserts four procedural defects in the District Court’s decision, 

and he claims that the sentences were substantively unreasonable. We review procedural-soundness and substantive-unreasonableness challenges for abuse of discretion. United States 

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Further, 

“[w]e exercise plenary review of a district court’s interpretation of the Sentencing Guidelines and review its factual findings for clear error.” United States v. Welshans, 892 F.3d 566, 

573 (3d Cir. 2018). Four of the issues are meritless. The other 

leaves Kelly’s sentence unaffected.

1. Dangerous-weapon enhancement. Kelly asserts that the 

District Court erred in applying the two-level enhancement for 

possession of “a dangerous weapon” in connection with a controlled-substances offense. U.S.S.G. § 2D1.1(b)(1). We disagree. The government can show possession simply “by establishing that a temporal and spatial relation existed between the 

weapon, the drug trafficking activity, and the defendant.” 

United States v. Napolitan, 762 F.3d 297, 309 (3d Cir. 2014) 

(internal quotation marks omitted). If it does so, the burden 

42 Because we reach this conclusion, we address neither Hernandez’s other sentencing challenges nor the effect of the mandatory minimum error at Count II.
85

shifts to the defendant to show that “it is clearly improbable 

that the weapon was connected with the offense.” U.S.S.G. § 

2D1.1 cmt. n.11. Here, Cordaress Rogers testified that Kelly 

supplied drugs to numerous younger dealers and helped to introduce guns to the South Side, that a lot of people had guns, 

and that guns were stashed on the blocks. The prevalence of 

firearms was also described in other testimony. This evidence 

establishes the requisite nexus, and Kelly gives no indication

of clear improbability.

2. Organizer or leader increase. Kelly contends that the 

District Court erred in applying a four-level increase for being 

“an organizer or leader of a criminal activity that involved five 

or more participants.” U.S.S.G. § 3B1.1(a). When determining 

whether to apply this enhancement, a court should consider, 

among other things, “the nature of participation in the commission of the offense, . . . the degree of participation in planning 

or organizing the offense, [and] the nature and scope of the illegal activity.” U.S.S.G. § 3B1.1 cmt. n.4. As just noted, the 

evidence indicated that Kelly supplied a substantial amount of 

crack to the younger generation of street-level dealers, associated with other key suppliers such as Cruz and Hernandez, and 

helped to introduce guns into the South Side-Parkway rivalry. 

In this light, we cannot say the District Court clearly erred in 

imposing the enhancement.

3. Calculation of criminal-history score. Kelly next contests his classification as a career offender for purposes of his 

criminal-history category. Under the Guidelines, a defendant is 

a career offender if he “has at least two prior felony convictions 

of either a crime of violence or a controlled substance offense.” 

U.S.S.G. § 4B1.1(a). An offense committed before the age of 

18 may qualify “if it is classified as an adult conviction under 

the laws of the jurisdiction in which the defendant was convicted.” U.S.S.G. § 4B1.2 cmt. n.1. Kelly argues that one of his 
86

predicate convictions, a November 1994 conviction in New 

York state court for attempted murder, was not so classified. 

The District Court found that it was, based largely on a “Sentence & Commitment” form of the New York Supreme Court, 

Bronx County.

This finding was not clearly erroneous. As the District 

Court pointed out, on the form there were two options after the 

line “The defendant having been.” Gov’t Supp. App. 165. One 

was “convicted of the crime(s) of”; the other, “adjudicated a 

Youthful Offender.” The former was checked, suggesting 

Kelly’s conviction was the same as that for an adult. At the 

bottom of the form was written “YO denied.” The District 

Court reasonably inferred that this meant “youthful offender 

denied.” Kelly App. 518. Finally, simply because Kelly was 

marked a “Juvenile Offender” on the form is not, under applicable New York law, indicative of a non-adult conviction. See 

In re Raymond G., 715 N.E.2d 486, 488 (N.Y. 1999); Matter 

of Vega, 393 N.E.2d 450, 452-53 (N.Y. 1979).

4. Use-of-violence enhancement. Kelly points out that the 

District Court failed to consider his objection to the two-level 

enhancement under U.S.S.G. § 2D1.1(b)(2). The Government 

essentially concedes the point, arguing only that the District 

Court addressed Kelly’s use of violence when it rendered its 

decision. But, of course, the sentencing judge must make “an 

individualized assessment based on the facts presented.” Gall 

v. United States, 552 U.S. 38, 50 (2007). Nevertheless, because 

we reject Kelly’s other procedural challenges, this error does 

not affect his total offense level.

5. Substantive reasonableness. “[I]f the district court’s 

sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district 
87

court provided.” Tomko, 562 F.3d at 568. In rendering its judgment, the District Court said: “[Kelly’s] not here for an isolated 

event, he’s here for a decade-long conspiracy that involved 

multiple episodes of violence and harm to innocen[ts] in the 

community . . . . The defendant was at the core of this enterprise and these violent acts.” Kelly App. 528. The District 

Court noted Kelly’s “involve[ment] in drug and gang activity 

from a very young age.” Kelly App. 528. It observed that “[h]e 

was a leader of the gang . . . and was a participant and present 

at many of the violent activities that occurred here.” Kelly App. 

528. A reasonable jurist easily could have imposed the life sentences the District Court did.

4. Schueg

Schueg’s challenges to his concurrent 165-month sentences all relate to the assessment of fines and costs. After stating simply that Schueg “has the ability to pay a fine,” the District Court ordered that he, together with other defendants, pay 

$6,500 in restitution under the Mandatory Victims Restitution 

Act (MVRA). Schueg App. 63-64. It also ordered payment of 

the special assessment under 18 U.S.C. § 3013(a)(2)(A), and 

of certain costs of prosecution, including $13,948.76 for the 

compensation of York police officers who testified at trial. Although Schueg challenges the MVRA and police compensation

orders on substantive grounds, he also, as a threshold matter, 

contests the District Court’s finding of an ability to pay. The 

PSR found that Schueg lacked such an ability, and he raised 

the issue in his sentencing memorandum.

Under the MVRA, a district court must “specify in the 

restitution order the manner in which, and the schedule according to which, the restitution is to be paid,” after considering the 

defendant’s “financial resources and other assets,” projected 

income, and “financial obligations.” 18 U.S.C. § 3664(f)(2). 
88

We have interpreted this provision loosely, requiring only that 

“the record evidence[] a court’s consideration of the defendant’s financial situation,” though “express findings” need not

be made. United States v. Lessner, 498 F.3d 185, 202 (3d Cir. 

2007). Nevertheless, in this case, we cannot find in the record 

any consideration of Schueg’s financial condition. There was 

testimony regarding a denial of financial aid on a college application, and gifts that Schueg gave to his sister’s children. 

None of that, however, goes to his ability to pay at the time of 

sentencing. While the District Court did specify a payment 

schedule, there is no indication where the Court determined 

Schueg had the ability to fulfill that schedule—especially 

given the PSR’s finding and Schueg’s objection in his sentencing memorandum. We will, therefore, vacate the District 

Court’s judgment of sentence as it relates to the assessment of 

restitution, fines, and costs, and remand for consideration of 

Schueg’s ability to pay.

5. Atkinson

Atkinson contests the District Court’s application of a 

two-level enhancement for obstructing the administration of 

justice. To be eligible for that increase, a defendant must (as 

relevant here) have “willfully . . . attempted to obstruct or impede[] the administration of justice with respect to the . . . sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. 

While Atkinson was in prison awaiting sentencing, he allegedly stabbed Carl Hodge, a fellow prisoner, multiple times 

while the latter was in the shower. The proximate cause of the 

episode, according to Hodge’s testimony at Cruz’s sentencing 

hearing, was that Hodge came into possession of a cellphone 

Hernandez was using for ongoing illegal activities: bribing 

prison guards, selling drugs, and arranging a murder. Hodge 

began to share the phone’s contents with the Government. Cruz 

and Atkinson became suspicious, leading to the assault.
89

Atkinson does not dispute Hodge’s testimony. He argues, rather, that even if he had a motive to harm Hodge because of suspected cooperation, he could not reasonably have 

believed that Hodge would testify against him at sentencing. 

See United States v. Galaviz, 687 F.3d 1042, 1043 (8th Cir. 

2012). Section 3C1.1 does not demand such a standard. Testimony at sentencing is only one means Hodge could potentially 

have disadvantaged Atkinson’s legal position. As the facts 

show, Hodge was cooperating with regard to contemporaneous 

events, disclosing potentially prejudicial material to the Government. To demand that Atkinson reasonably believed Hodge 

would testify against him is unduly limiting and beyond the 

text of § 3C1.1. “[T]he administration of justice with respect 

to” sentencing encompasses more than witness testimony.

From that perspective, Atkinson’s enhancement must 

remain. His “instant offense” was among other things RICO 

conspiracy, and Hodge was suspected of (and indeed was) revealing to the Government information related to ongoing concerted illicit activities of at least Hernandez, Cruz, and Atkinson. That goes directly to the offense of which Atkinson was 

convicted and awaiting sentencing. The District Court, then, 

did not clearly err in finding a nexus between the attack and 

Atkinson’s pending legal proceedings.

B. Collective Challenges

1. Drug Quantity

Rice, Eatmon, and Kelly challenge the District Court’s 

drug-quantity attributions pursuant to the Guidelines’ relevantconduct provision.43 See U.S.S.G. §§ 1B1.3(a)(1)(B), 

43 Villega also seeks to challenge his offense level on this 

ground, pointing out that the District Court did not rule on his 
90

2D1.1(a). Our review is for clear error. United States v. Perez, 

280 F.3d 318, 352 (3d Cir. 2002). “[W]e permit some degree 

of estimation in drug conspiracy cases because the government 

usually cannot seize and measure all the drugs that flow 

through a large drug distribution conspiracy.” United States v. 

Diaz, 951 F.3d 148, 159 (3d Cir. 2020) (internal quotation 

marks omitted). Nevertheless, information used for sentencing 

“must have ‘sufficient indicia of reliability to support its probable accuracy.’” United States v. Miele, 989 F.2d 659, 663 (3d 

Cir. 1993) (quoting U.S.S.G. § 6A1.3(a)).

Rice’s PSR recommended a base offense level of 30, 

due to a drug-quantity attribution of 280-840 grams of crack. 

See U.S.S.G. § 2D1.1(c)(5). The District Court adopted this 

recommendation based upon the findings of the jury. Although 

the jury’s findings were on a conspiracy-wide basis, the District Court could also, by a preponderance of the evidence, have 

incorporated those findings consistent with the relevant-conduct standard. See Collado, 975 F.2d at 995.

objections regarding drug quantity, a dangerous-weapon enhancement, and relevant conduct for the RICO conspiracy. But 

there is good reason for that: Villega’s trial counsel and the 

Government agreed, and represented to the District Court at the

sentencing hearing, that the baseline would be an offense level 

of 37, which, with a criminal history category of VI, resulted 

in a Guidelines range of 360 months to life imprisonment. Villega’s counsel thereafter raised no objections to the calculation, 

and the District Court applied no additional enhancements. The 

ultimate sentence was below the agreed-upon range. Contrary 

to Villega’s representations on appeal, it is clear that he waived 

any challenges to his offense level. See, e.g., United States v. 

Ward, 131 F.3d 335, 342-43 (3d Cir. 1997).
91

As remarked above, Rogers testified that in the conspiracy’s early years, he, Atkinson, Eatmon, and Rice all sold crack 

they received from Hernandez and Kelly. Rogers agreed that 

they were “essentially getting the same quantities or similar 

quantities,” App. 3544-45, and he estimated that in this time he 

received approximately 1 kilogram of crack from both Hernandez and Kelly. Further, in around 2006-2007, when those suppliers were imprisoned, Rogers said that he, Atkinson, Eatmon, 

Sistrunk, and Rice continued to sell drugs together, and that 

they mutually facilitated each other’s drug dealing. Rice does 

not dispute this testimony, and other evidence indicates his 

continued involvement in the conspiracy in the years thereafter. The District Court did not clearly err in its attribution.

The same goes for Eatmon. He received a base offense 

level of 38, on an attribution of 28 kilograms or more of crack. 

Rogers testified that for about a year between 2006 and 2007, 

he would bring back from New York 500 to 1000 grams of 

crack “[e]very couple of days.” App. 3573. He agreed that he 

distributed, and that he saw Eatmon and others distribute, 

“many kilos of crack” over that time. App. 3575. Further, 

Darvin Allen testified that around that same time, for approximately one to two years, he received from Eatmon about 14 

grams of crack a week. Eatmon indicates nothing in the record 

to doubt the reliability of this testimony. The attribution of 28 

kilograms or more was not clear error.

Finally, Kelly’s challenge fails on a similar basis. His 

base offense level, like Eatmon’s, was 38, thanks to an attribution of 28 kilograms or more of crack. Rogers testified that he 

received approximately 1 kilogram of crack from each of Hernandez, Cruz, and Kelly in the years after 2002, and, as just 

noted, he said that Atkinson, Eatmon, and Rice all received a 

similar amount from at least Hernandez and Kelly. There was 

also testimony from a high-level South Side supplier, who said 
92

that in these years he moved 500 grams to 1 kilogram of crack 

a week, including deliveries to Cruz and Hernandez. Further, 

Rogers testified that by 2012, Kelly was present when he paid 

Hernandez for crack that had been fronted. This indicates 

Kelly’s continued active participation in the conspiracy. Finally, as mentioned above, there was evidence that Kelly continued to associate with Cruz and Hernandez, and supply crack 

even up to the time of the initial indictment in March 2014. 

Given this longitudinal evidence of Kelly’s twelve-year participation in the highest levels of the conspiracy, the indications 

of persistent drug-dealing activity, and the testimony regarding 

the amounts involved, we cannot say the District Court clearly 

erred in its attribution.

2. Body-Armor Enhancement

During his testimony regarding the early years of the 

conspiracy, Rogers said that he saw Hernandez and Kelly 

wearing bulletproof vests on multiple occasions at Maple and 

Duke Streets. Under the Guidelines, a defendant “convicted of 

a drug trafficking crime or a crime of violence” may be eligible 

for a two- or a four-level increase to his offense level based on 

the use of body armor in the commission of the offense. 

U.S.S.G. § 3B1.5(1). The two-level increase applies when “the 

offense involved the use of body armor.” U.S.S.G. 

§ 3B1.5(2)(A). The four-level one applies if “the defendant 

used body armor during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension 

for the offense.” U.S.S.G. § 3B1.5(2)(B). Kelly received the 

latter enhancement; Atkinson and Eatmon the former.

Kelly asserts that Rogers’s testimony does not provide 

a sufficient nexus between the wearing of the body armor and 

the commission of the offense. The commentary to § 3B1.5 de-
93

fines “use” in part as “active employment in a manner to protect the person from gunfire.” U.S.S.G. § 3B1.5 cmt. n.1. Kelly 

was said to have worn body armor multiple times on Maple and 

Duke Streets—the eponymous location of the primary crew of 

drug traffickers on the South Side. Further, Rogers’s testimony 

was not an offhand remark; it came in the context of a description of the conspiracy’s early years, when Kelly and Hernandez 

began supplying crack to Rogers, Atkinson, Eatmon, and Rice. 

Kelly, Hernandez, and Cruz would be “standing there on Duke 

Street, so you would just buy the drugs from them and then go 

sell them on your own.” App. 3546. It was also when Kelly and 

Hernandez helped to introduce guns to the South Side, and the 

South Side-Parkway rivalry escalated from fistfights to gunfights. There is, therefore, a spatial and temporal nexus between Kelly’s use of the body armor and the commission of the 

conspiracy offense. Application of the four-level enhancement 

was not clear error.

This same evidence supports the application 

§ 3B1.5(2)(A) to Atkinson and Eatmon. We apply to the 

Guidelines the ordinary principles of statutory interpretation. 

See, e.g., United States v. James, 952 F.3d 429, 433, 439 (3d 

Cir. 2020). The provisions here are notably different: while the 

four-level enhancement concerns the actions of the defendant, 

the two-level one concerns the nature of the offense. The latter—which encompasses “the offense of conviction and all relevant conduct,” U.S.S.G. § 3B1.5 cmt. n.1 (citing U.S.S.G. 

§ 1B1.1 cmt. n.1(I))—need only “involve[]” the use of body 

armor. According to Rogers’s testimony, Kelly and Hernandez’s use of the body armor occurred at the time Atkinson and 

Eatmon were being supplied by them. Eatmon protests he had 

not joined the conspiracy by this point, but he presents no evidence to question the District Court’s judgment.
94

3. Costs of Prosecution

Seven Defendants—Cruz, Hernandez, Villega, Kelly, 

Schueg, Atkinson, Sistrunk, and Eatmon—challenge the District Court’s assessment of a fine to reimburse the City of York

for the overtime wages paid to York police officers who testified at trial. The Government concedes the issue. We will, 

therefore, vacate this aspect of the challengers’ judgments of 

sentence.

VII. CONCLUSION

For the foregoing reasons, we will affirm the Defendants’ judgments of conviction, and the judgments of sentence 

of Williams and Rice. We will vacate Hernandez’s judgment 

of sentence in full, and Schueg’s judgment of sentence as to the 

assessment of restitution, fines, and costs. We will remand 

those two cases for resentencing proceedings consistent with 

this opinion. We will also vacate the judgments of sentence of

Cruz, Villega, Kelly, Atkinson, Sistrunk, and Eatmon as to the

police overtime costs.
1

RESTREPO, Circuit Judge, dissenting.

The District Court issued a sua sponte order closing the 

courtroom for jury selection. Appellants were eventually 

convicted on various counts related to their involvement in a 

local street gang and were sentenced to prison. Among other 

issues they raise on appeal, Appellants argue that they are 

entitled to a new trial because of the courtroom closure. Due 

to the deep roots the right to a public trial has in our history and 

its critical importance to the functioning of our criminal justice 

system, I would reverse Appellants’ convictions and remand 

for a new trial. I respectfully dissent.

I.

Following an extensive investigation conducted by the 

United States Bureau of Alcohol, Tobacco, Firearms and 

Explosives, a grand jury returned a six-count indictment 

against twenty-one defendants. From 2002 to 2014, the 

defendants were alleged to have participated in a racketeering 

conspiracy, a drug trafficking conspiracy, and drug trafficking 

while involved with a York, Pennsylvania street gang. After 

nine defendants entered into plea agreements with the 

Government, twelve went to trial. Ten of these defendants 

(collectively, “Appellants”) now appeal their convictions and 

sentences ranging from sixty months to life imprisonment.

On the eve of the trial, the District Court issued an order 

closing the courtroom for the entirety of jury selection. In full, 

the order states:

AND NOW, on this 18th day of September 

2015, IT IS HEREBY ORDERED THAT due 

to courtroom capacity limitations, only (1) court 
2

personnel, (2) defendants, (3) trial counsel and 

support staff, and (4) prospective jurors shall be 

allowed into the courtroom during jury selection. 

No other individuals will be present except by 

express authorization of the Court.

App. 10 (bold in original). Neither the Government nor the 

defendants requested this order, and the District Court did not 

seek their input. The Court closed the courtroom to the public 

without determining whether it was necessary or considering 

any alternatives. None of the defendants objected to the order,

and voir dire then took place for two days. 

II.

We must now decide whether to correct an erroneous 

courtroom closure despite Appellants’ failure to object. As a 

preliminary matter, it is imperative to understand the contours

of the constitutional right in question.

The Sixth Amendment provides that “the accused shall 

enjoy the right to a speedy and public trial”—and the Supreme 

Court has long recognized the importance of the public trial 

right for the accused and the broader community. See, e.g., In 

re Oliver, 333 U.S. 257 (1948). “[T]he Sixth Amendment right 

to a public trial extends to the voir dire of prospective jurors.” 

Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam); see 

also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 

(1984) (noting that “the accused’s right [to a fair trial] is 

difficult to separate from the right of everyone in the 

community to attend the voir dire” under the First 

Amendment). As a part of the public trial right, criminal 

defendants and the public at large are entitled to open

proceedings.
3

The public trial guarantee is deeply rooted in our 

common law heritage. In England, early court proceedings

required public access to “moots,” which later evolved into 

juries, consisting of “the freemen of the community.” See 

Press-Enterprise, 464 U.S. at 505. In the eleventh century, the

jury began to transform into a small group of individuals that 

represented the community, but “the public character of the 

proceedings, including jury selection, remained unchanged.” 

Id. at 506. As early as the sixteenth century, jurors in England

were selected “openlie in the presence of the Judges, the 

Justices, the enquest, the prisoner, and so many as will or can 

come so neare as to heare it.” Id. at 507 (emphasis in original) 

(quoting Thomas Smith, De Republica Anglorum 96 (1565) 

(Alston ed. 1906)).

The presumption of public jury selection “carried over 

into proceedings in colonial America.” Id. at 508 (discussing

accounts on the need for bystanders at trials following the

Boston Massacre). Many of the thirteen colonies enacted 

statutes requiring jury selection to occur in open court. See id. 

(“Public jury selection . . . was the common practice in 

America when the Constitution was adopted.”). For instance,

a 1773 statute in North Carolina required that court clerks,

write the Names of all Petit Jurors appearing, on 

Scrolls or Pieces of Paper, which shall be put into 

a Box; and on every Issue in every Suit where it 

is not otherwise agreed by Consent, a Child 

under Ten Years old, in open Court, shall draw 

out of the said Box Twelve of the said Scrolls or 

Pieces of Paper.

James Davis, Complete Revisal of All the Acts of Assembly, of 

the Province of North-Carolina, Now in Force & Use 549 
4

(1773) (emphasis added). Delaware employed a similar 

system in which prospective jurors’ names were placed in a 

box until “some indifferent person, by the direction of the 

court, may and shall, in open court, draw out twelve of the said 

pieces of parchment or paper.” 2 Laws of the State of Delaware

1073 (Samuel & John Adams eds. 1797) (emphasis added). 

These are just two examples, as open voir dire proceedings 

were the practice at the time of our Nation’s founding.

The Sixth Amendment enshrined the presumption of 

public access in the Constitution. The Founding Fathers 

believed that public court proceedings provided safeguards 

integral to the nascent republic. At the Constitutional 

Convention, broad agreement existed regarding the jury trial’s 

importance as “a valuable safeguard to liberty . . . [or] the very 

palladium of free government.” The Federalist No. 83, at 461 

(Alexander Hamilton) (P.F. Collier ed., 1901). And jury 

selection was viewed as a “double security” against corruption 

that would require a person to “corrupt both the court and the 

jury.” Id. at 463. 

Enunciating “revolution principles” under the 

pseudonym “Novanglus,” John Adams struck similar themes 

when he explained that “draw[ing] [jurors] by chance out of a 

box in open town meeting” best “secured against a possibility 

of corruption of any kind . . . having seen with their own eyes, 

that nothing unfair ever did or could take place.” John Adams, 

Novanglus; or, A History of the Dispute with America from Its 

Origin, in 1754, to the Present Time, The Revolutionary 

Writings of John Adams 152, 199 (C. Bradley Thompson, ed., 

2000) (emphasis added). These sentiments were explicitly 

incorporated into the Constitution in the language of the Sixth 

Amendment.
5

It is thus no surprise that the Supreme Court classifies

courtroom closures “as a structural error” that generally 

“entitl[es] the defendant to automatic reversal.”1 Weaver v. 

Massachusetts, 137 S. Ct. 1899, 1905 (2017) (plurality 

opinion). Courts usually reverse criminal convictions tainted 

by a structural error because they affect “the framework within 

which the trial proceeds,” thus “infect[ing] the entire trial 

process” and undermining the ultimate determination of “guilt 

or innocence.” Neder v. United States, 527 U.S. 1, 8–9 (1999) 

(citations and internal quotation marks omitted). An open 

courtroom during jury selection is fundamental to protecting

defendants’ right to a jury free from prejudice and ensuring 

1 There are limited instances in which closing a 

courtroom is not structural error. A judge may order a 

closure based on findings that specifically identify “higher 

values” that must be preserved. Waller v. Georgia, 467 U.S. 

39, 45 (1984) (quoting Press-Enterprise, 464 U.S. at 510); 

see also Weaver, 137 S. Ct. at 1909 (“[A] judge may deprive 

a defendant of his right to an open courtroom by making 

proper factual findings in support of the decision to do so.”). 

Trial courts are required to “consider alternatives to closure 

even when they are not offered by the parties.” Presley, 558 

U.S. at 214.

The District Court did not consider alternative options 

or make any factual findings in support of its order. The 

Government points to comments the District Court made on 

the number of people in the courtroom. However, these 

comments do not support the proposition that the District 

Court made the required findings because they came days 

after the order and are not linked in any discernible way to the 

closure.
6

public confidence in the administration of justice. See PressEnterprise, 464 U.S. at 508; United States v. Negrón-Sostre, 

790 F.3d 295, 301 (1st Cir. 2015). Accordingly, it was a 

structural error to close the courtroom during voir dire.

III.

There are instances in which a structural error does not 

automatically lead to a reversal. In Weaver, the Supreme Court

recently examined an erroneous courtroom closure on 

collateral review. Due to space limitations, “an officer of the 

court excluded from the courtroom any member of the public 

who was not a potential juror.” Weaver, 137 S. Ct. at 1906. 

Citing finality concerns, the plurality concluded that the 

petitioner did not demonstrate prejudice as required for a new 

trial under Strickland v. Washington, 466 U.S. 668 (1984). See 

Weaver, 137 S. Ct. at 1912–14. Although the Weaver plurality 

cautioned courts not to assume that public trial violations 

always require reversal in a collateral proceeding, it did not 

address the appropriate remedy when the error is raised for the 

first time on direct review.

Here, Appellants did not object to the District Court’s 

closure order or otherwise preserve their claim during the trial. 

We thus review the order for plain error. Fed. R. Crim. P. 

52(b). Appellants must satisfy four prongs under plain error 

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

They must show (1) that there was an error, (2) that was “clear 

or obvious,” and (3) it must have impacted their “substantial 

rights.” Puckett v. United States, 556 U.S. 129, 135 (2009). 

The third prong generally “means that the error must have been 

prejudicial,” meaning “[i]t must have affected the outcome of 

the district court proceedings.” Olano, 507 U.S. at 734. 
7

Fourth, reviewing courts have discretion to remedy a forfeited 

error if it “seriously affect[ed] the fairness, integrity or public 

reputation of judicial proceedings.” Id. at 736 (citation and 

internal quotation marks omitted). Only the third and fourth 

prongs are relevant for our purposes because the parties agree 

that the closure was a clear error. Below, I will consider these

prongs in turn.

A.

Olano’s substantial rights prong typically requires a 

showing of prejudice. Puckett, 556 U.S. 129. “To satisfy this 

. . . condition, the defendant ordinarily must show a reasonable 

probability that, but for the error, the outcome of the 

proceeding would have been different.” Rosales-Mireles v. 

United States, 138 S. Ct. 1897, 1904–05 (2018) (citation and 

internal quotation marks omitted). But “[t]here may be a 

special category of forfeited errors that can be corrected 

regardless of their effect on the outcome.” Olano, 507 U.S. at 

735. The Majority declines to address whether an erroneous 

courtroom closure fits this “special category” under the third 

Olano prong. Majority Op. at 17 (noting that it need not decide 

because it declines to exercise discretion under the fourth 

prong). I disagree and would hold that the specific structural 

error at issue here fits the special category of errors that must 

be corrected even without a particularized showing of 

prejudice and thus satisfies Olano’s third prong. 

The Supreme Court has made clear that structural errors

generally result in the reversal of a conviction because they 

“are so intrinsically harmful as to require automatic reversal 

(i.e., ‘affect substantial rights’) without regard to their effect 

on the outcome.” Neder, 527 U.S. at 7. Requiring defendants
8

to make a specific showing of prejudice when claiming a 

structural error on direct review would force them to engage in 

a “speculative inquiry into what might have occurred in an 

alternate universe.” United States v. Gonzalez-Lopez, 548 U.S. 

140, 148–50 (2006) (describing why it is “unnecessary to 

conduct an ineffectiveness or prejudice inquiry” to establish a 

violation to the “right to counsel of choice”).

The District Court’s closure of the courtroom during 

voir dire is the prototypical constitutional error that is 

impossible to measure. “Jury selection is the primary means 

by which a court may enforce a defendant’s right to be tried by 

a jury free from ethnic, racial, or political prejudice . . . , or 

predisposition about the defendant’s culpability.” Gomez v. 

United States, 490 U.S. 858, 873 (1989). Public jury selection 

proceedings impact the way in which potential jurors respond 

to questions about their past experiences and the types of 

questions attorneys ask them. See Negrón-Sostre, 790 F.3d at 

305–06. 

The difficulty in determining the level of prejudice is 

precisely why structural errors are presumed to affect 

defendants’ substantial rights. See Neder, 527 U.S. at 7. 

Contrary to the Majority, I do not view the conclusion that the 

District Court’s courtroom closure affected Appellants’

substantial rights as a “doctrinal leap.” See Majority Op. at 17. 

It would be illogical to classify an error as structural because it 

affects substantial rights but then conclude that it did not affect 

defendants’ substantial rights for purposes of Olano’s third 

prong. Given the difficulty of measuring prejudice arising 

from a public trial violation and the importance of jury 

selection in protecting criminal defendants, this Court should 

presume prejudice and hold that Appellants have satisfied the 

substantial rights prong.
9

B.

The District Court’s order also undermines the fairness, 

integrity, and public reputation of the trial proceedings, thus 

satisfying Olano’s fourth prong. As explained above, open 

voir dire is key to ensure that unprejudiced jurors are 

ultimately selected to serve on juries. It also serves as a check 

on judicial abuse against defendants caught up in the criminal 

justice system. See United States v. Lnu, 575 F.3d 298, 305 

(3d Cir. 2009) (stating that the public trial right “has always 

been recognized as a safeguard against any attempt to employ 

our courts as instruments of persecution”) (citation and internal 

quotation marks omitted). Even in cases where there are no 

further constitutional violations, open jury selection maintains

the public’s confidence in the system by enhancing “the 

appearance of fairness.”2 Press-Enterprise, 464 U.S. at 508; 

see also Waller, 467 U.S. at 46 (stating that public trials ensure 

that the “judge and prosecutor carry out their duties 

responsibly” and “discourages perjury”).

3

2 These fairness concerns are particularly relevant in 

light of the District Court’s handling of the Batson challenge 

in chambers. Although I agree with the Majority that the 

resolution of the challenge in camera was harmless, the 

District Court’s conduct is concerning because it represents 

another instance in which the Court limited access to jury 

selection proceedings.

3 Concerns related to public confidence in the 

proceedings are especially relevant here given the local media 

coverage into the case. See, e.g., Keith Schweigert, York 

member of Southside gang to serve 21 years on drug, 

racketeering charges, Fox 43 (December 21, 2018, 11:24 
10

The pivotal role that public proceedings play in our 

judicial system is precisely why reviewing courts find it

particularly problematic when trial judges themselves limit 

access to courtrooms. See Weaver, 137 S. Ct. at 1913 

(emphasizing that the “closure decision . . . was made by court 

officers rather than the judge”). It is also why trial judges are 

responsible for considering alternatives to closure even if none 

are raised by the parties. Presley, 558 U.S. at 214–15 (noting 

that trial courts must consider alternatives given jury 

selection’s importance “to the adversaries [and] to the criminal 

justice system”) (citation and internal quotation marks 

omitted). As the reviewing court, it is imperative that we 

correct the District Court’s structural error because it 

undermines the integrity and public reputation of criminal 

proceedings that resulted in Appellants’ convictions.

Instead, the Majority conducts a cost-benefit analysis to 

justify leaving the public trial violation uncorrected. Majority 

Op. at 29 (declining remedial action because “the remedy is to 

be assessed relative to the costs of the error”). This approach 

is foreign and detrimental to our structural error jurisprudence.

The Majority first minimizes the impact of the error by 

pointing out that there is no evidence anyone sought to access 

to the courtroom, that there is no indication of wrongdoing by 

the District Court or the Government, and that transcripts of 

AM), https://fox43.com/2018/12/21/york-member-ofsouthside-gang-to-serve-21-years-on-drug-racketeeringcharges/; Christopher Dornblaser, Life in prison for York City 

Southside gang leader, York Dispatch (October 3, 2017, 8:03 

PM), 

https://www.yorkdispatch.com/story/news/2017/10/03/lifeprison-york-city-southside-gang-leader/729170001/.
11

voir dire were made available. Majority Op. at 26–28. The 

availability of transcripts does little to mitigate the error 

because “no transcript can recapture the atmosphere of the voir 

dire, which may persist throughout the trial.” Gomez, 490 U.S. 

at 874–75; see also United States v. Antar, 38 F.3d 1348, 1360 

n.13 (3d Cir. 1994) (explaining that “the translation of a live 

proceeding to a cold transcript” misses “some information, 

concerning demeanor, non-verbal responses, and the like”).

The other two factors the Majority mentions miss the 

point of structural errors like public trial violations. Much of 

the Majority’s analysis relies on cases that consider errors 

reviewed for harmlessness. See Majority Op. at 23–25. At one 

point, the Majority even posits that “apart from cases of actual 

innocence, an altered outcome does not in itself necessitate 

correction of the error.” Majority Op. at 25. The Majority 

overlooks the critical fact that we do not review criminal trials

with a structural error for harmlessness because such trials

“cannot reliably serve its function as a vehicle for 

determination of guilt or innocence, and no criminal 

punishment may be regarded as fundamentally fair.” Arizona 

v. Fulminante, 499 U.S. 279, 310 (1991) (citation and internal 

quotation marks omitted). Because public trial violations 

corrupt the very mechanism used to determine guilt or 

innocence, we cannot measure the true costs of leaving the 

District Court’s error uncorrected. 

The Majority next focuses on the high costs of remedial 

action to correct the error. Correcting the public trial violation 

would require reversal of Appellants’ convictions, which 

resulted from two-month long proceedings completed five 

years ago, and remand for a new trial. The costs to remedy the 

District Court’s error are indeed considerable. I disagree, 

however, with the central role the Majority affords these costs 
12

in its plain error analysis. The District Court committed a 

grave constitutional violation by simultaneously violating

twelve defendants’ right to a public trial for the entirety of jury 

selection. The nature of the error, not the cost of correcting it, 

must be the lodestar of our consideration of a structural error 

on plain-error review. The District Court “undermine[d] the 

structural integrity of the criminal tribunal itself” in a way that 

“is not amenable to harmless-error review”—and the Majority 

allows this to stand. Vasquez v. Hillery, 474 U.S. 254, 263–64 

(1986). It is perverse to weigh the costs of judicial efficiency 

against Appellants’ constitutional rights when the District 

Court undeniably committed structural error.

For the reasons stated above, I respectfully dissent. A 

balancing test or a cost-benefit analysis is an improper and 

unjust method for determining whether to protect certain 

fundamental constitutional rights. The public trial right is one 

of these fundamental rights. It has deep roots in our Nation’s 

history and is essential to the functioning of our criminal 

justice system. I would therefore reverse Appellants’

convictions and remand for a new trial.