Case: 17-30610 Document: 00516317493 Page: 1 Date Filed: 05/12/2022
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 17-30610
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`May 12, 2022
`
`Lyle W. Cayce
`Clerk
`
`United States of America,
`
`
`
`
`
`Jasmine Perry,
`
`
`
`
`Plaintiff—Appellee,
`
`versus
`
`Defendant—Appellant,
`
`consolidated with
`_____________
`
`No. 17-30611
`_____________
`
`
`United States of America,
`
`
`Plaintiff—Appellee,
`
`
`
`versus
`
`
`
`Leroy Price, Alonzo Peters; Curtis Neville; Solomon
`Doyle; Damian Barnes; Ashton Price; McCoy Walker;
`Terrioues Owney; Evans Lewis,
`
`
`Defendants—Appellants.
`
`
`
`
`

`

`Case: 17-30610 Document: 00516317493 Page: 2 Date Filed: 05/12/2022
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`No. 17-30610
`c/w No. 17-30611
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`
`
`Appeals from the United States District Court
`for the Eastern District of Louisiana
`USDC Nos. 2:15-CR-154-4; 2:15-CR-154-1;
`2:15-CR-154-3; 2:15-CR-154-8; 2:15-CR-154-11;
` 2:15-CR-154-13; 2:15-CR-154-2; 2:15-CR-154-5;
`2:15-CR-154-6 and 2:15-CR-154-7
`
`
`
`Before Jones, Higginson, and Duncan, Circuit Judges.
`Stephen A. Higginson, Circuit Judge:
`
`This criminal appeal arises out of a nearly six-week long trial involving
`ten co-defendants, all of whom are now before this Court. Defendants
`Jasmine Perry, Leroy Price, Alonzo Peters, Curtis Neville, Solomon Doyle,
`Damian Barnes, Ashton Price, McCoy Walker, Terrioues Owney, and Evans
`Lewis appeal their convictions for numerous crimes related to their
`participation in the “39ers.” We AFFIRM their convictions in part and
`VACATE in part.
`
`I. Factual Background
`
`In April 2016, a federal grand jury returned a 47-count, superseding
`indictment against defendants, charging them with various crimes including
`violations of the Racketeer Influenced and Corrupt Organizations Act
`(“RICO”), drug1 and gun conspiracies, violations of the Violent Crimes in
`Aid of Racketeering Act (“VICAR”), and firearms charges. The case
`proceeded to a jury trial that lasted 28 days. At trial, the Government sought
`to prove that each defendant was a member of the “39ers”: a criminal gang
`made up of members from groups in New Orleans’ Third and Ninth Wards.
`The two groups entered into an alliance of sorts, in order to sell drugs in both
`
`
`1 As relevant here, Defendants Perry, Owney, Lewis, and Doyle were not charged
`in the drug conspiracy because they had previously pleaded guilty to participating in a drug
`conspiracy in a separate case.
`
`2
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`areas. The Government argued on appeal that the purpose of the 39ers was
`to sell drugs while protecting its members, supplies and territory.
`
`Five members of the “39ers” pleaded guilty and cooperated,
`testifying for the Government at trial: Darryl Franklin, Tyrone Knockum,
`Gregory Stewart, Washington McCaskill, and Rico Jackson. Through
`testimony from these cooperators, the Government sought to prove that the
`39ers was an enterprise and not merely a loose association of people, that the
`39ers engaged in drug-trafficking together, and that they shared a gun
`conspiracy. As relevant to this appeal, at trial the prosecution focused on nine
`incidents: (1) the murder of Kendall Faibvre and the shooting of Jasmine
`Jones on February 22, 2010; (2) the murder of Lester Green and the shooting
`of Jamal Smith on May 19, 2010; (3) the murder of Donald Daniels on May
`27, 2010; (4) the murder of Elton Fields on October 11, 2010; (5) the murders
`of Jerome Hampton and Renetta Lowe on December 20, 2010; (6) the
`murder of Littlejohn Haynes on February 20, 2011; (7) the assaults of Albert
`Hardy, Kelvin Baham, and Carrie Henry on May 22, 2011; (8) the murder of
`Gregory Keys and the shooting of Kendrick Smothers on May 24, 2011; and
`(9) the murder of Michael Marshall on September 14, 2011.
`
`Evidence introduced by the prosecution at trial included expert
`testimony on ballistics, testimony from law enforcement, and Title III calls.
`In addition, two music videos and one song were played.
`
`Jury deliberations began on day 25 of the trial. The verdict, returned
`on day 28, resulted in the following convictions:
`1. Ashton Price was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, and the Count 3
`firearms conspiracy. He was also convicted on counts
`involving the deaths and assaults of Kendall Faibvre,
`Jasmine Jones, and Michael Marshall; however, he was
`
`3
`
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`found not guilty on counts associated with the deaths of
`Terrance Dennis, Anthony Charles Brown, Jr., and
`Rayshon Jones.
`2. Leroy Price was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, the Count 3
`firearms conspiracy, and the murders of Lester Green,
`Jamal Smith, Donald Daniels, Elton Fields, and Michael
`Marshall; however, he was found not guilty of causing
`death through the use of a firearm for each of those
`murders.
`3. Alonzo Peters was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, and the Count 3
`firearms conspiracy; however, he was found not guilty on
`all other charged counts.
`4. Jasmine Perry was found guilty of the Count 1 RICO
`conspiracy, the Count 3 firearms conspiracy, and the
`murders of Kendall Faibvre and Gregory Keys. He was also
`found guilty of assault with a dangerous weapon in aid of
`racketeering as to Jasmine Jones, Albert Hardy, Kevin
`Baham, Carrie Henry, and Kendrick Smothers. Perry was
`found not guilty of charges relating to the death of
`Littlejohn Haynes, Terrance Dennis, and Anthony Charles
`Brown, Jr.
`5. McCoy Walker was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, and the Count 3
`firearms conspiracy; he was also found guilty of charges
`associated with the murders of Lester Green, Jerome
`Hampton, and Renetta Lowe, as well as the assault of Jamal
`Smith. He was found not guilty of charges associated with
`
`4
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`the assault of Elton Williams, Quiniece Noble, and the use
`of a firearm in the death of Lester Green and assault of
`Jamal Smith.
`6. Terrioues Owney was found guilty of the Count 1 RICO
`conspiracy and the Count 3 firearms conspiracy, as well as
`counts associated with the murder of Lester Green, Donald
`Daniels, Elton Fields, Jerome Hampton and Renetta Lowe.
`He was also found guilty of the assault of Jamal Smith.
`7. Evans Lewis was found guilty of the Count 1 RICO
`conspiracy and the murder of Littlejohn Haynes. He was
`found not guilty of charges relating to the deaths of
`Anthony Charles Brown, Jr. and Lester Green, and the
`assault of Jamal Smith.
`8. Curtis Neville was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, and the Count 3
`firearms conspiracy, as well as counts associated with the
`murder of Littlejohn Haynes and the assaults of Albert
`Hardy, Kelvin Baham, and Carrie Henry. He was also
`found guilty of possession with the intent to distribute
`heroin, and possession of a firearm in furtherance of a drug
`trafficking crime.
`9. Solomon Doyle was found guilty only of the Count 1 RICO
`conspiracy. He was found not guilty of the Count 3 firearms
`conspiracy, as well as counts associated with the murder of
`Littlejohn Haynes.
`10. Damian Barnes was found guilty of the Count 1 RICO
`conspiracy, the Count 2 drug conspiracy, and the Count 3
`firearms conspiracy. He was found not guilty of counts
`associated with the murder of Floyd Moore.
`
`5
`
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`After trial, all defendants moved for acquittal or a new trial, and they
`supplemented their motions after a letter came to light in which cooperating
`witness Washington McCaskill characterized “our Federal Case” as “all
`made up lies.” The district court denied all motions, and sentenced
`defendants. All defendants but Doyle and Barnes received life sentences.
`They timely noticed their appeals.
`
`II. Discussion
`
`Defendants raise numerous arguments for reversing their convictions.
`We analyze each of their main arguments in turn.
`
`A. Sufficiency of Evidence2
`
`Eight defendants argue before us that there was insufficient evidence
`to support their convictions. All defendants moved for judgment of acquittal
`both at trial and post-trial. Accordingly, we review their claims de novo, giving
`“substantial deference to the jury verdict.” United States v. Suarez, 879 F.3d
`626, 630 (5th Cir. 2018) (citation omitted). Under this standard:
`
`We search the record for evidence supporting the convictions
`beyond a reasonable doubt, and review the evidence in the light
`most favorable to the verdict, accepting all credibility choices
`and reasonable inferences made by the jury. In other words, a
`defendant seeking reversal on the basis of insufficient evidence
`swims upstream.
`United States v. Chapman, 851 F.3d 363, 376 (5th Cir. 2017) (cleaned up).
`
`
`
`
`
`2 This case involved a jury trial that lasted for weeks, and we do not attempt to
`provide a full summary of all evidence presented at trial in this opinion. Rather, we discuss
`those challenges to the sufficiency of evidence that defendants fully developed in their
`briefs.
`
`6
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`1. Credibility of Cooperating Witnesses
`
`A threshold issue for some of the sufficiency challenges raised by
`
`several defendants involves the credibility, or lack thereof, of cooperating
`witnesses. Defendants Leroy Price, Walker, Owney, and Perry all spend
`portions of their briefs arguing that that the cooperating witnesses were not
`credible and that there was insufficient evidence to support their convictions
`outside of the cooperating witness testimony. For example, Owney’s brief
`contends that:
`
`Owney was indicted for four murders and one assault. For each
`of these criminal acts, one of the unindicted, immunized co-
`conspirators was responsible and so admitted. . . . A complete
`review of the record demonstrates that other than the
`testimony of the government’s witnesses, the government has
`no evidence to prove beyond a reasonable doubt that Owney
`committed the alleged offenses.
`The sufficiency challenges raised by defendants that depend only on
`challenges to the credibility of cooperating witnesses include: (1) the murder
`of Lester Green and the shooting of Jamal Smith in May of 2010; (2) the
`murder of Donald Daniels on May 27, 2010; (3) the murder of Elton Fields
`on October 11, 2010; and (4) the murder of Gregory Keys and the shooting
`of Kendrick Smothers.
`
`To successfully challenge the sufficiency of evidence supporting a
`
`conviction, it is not enough for a defendant to argue that he was convicted on
`the uncorroborated testimony of a co-conspirator. This Court has long held
`that “a defendant may be convicted on the uncorroborated testimony of a
`coconspirator who has accepted a plea bargain,” so
`long as the
`coconspirator’s testimony is not “incredible.” United States v. Villegas-
`Rodriguez, 171 F.3d 224, 228 (5th Cir. 1999). “Testimony is incredible as a
`matter of law only if ‘it relates to facts that the witness could not possibly
`
`7
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`have observed or to events which could not have occurred under the laws of
`nature.’” United States v. Booker, 334 F.3d 406, 410 (5th Cir. 2003) (quoting
`United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994)). Thus, we have
`allowed convictions supported only by one witness’ testimony to stand,
`“[w]hatever the problems” with that witness’ credibility, if the “account
`was neither physically impossible nor outside his powers of observation.”
`United States v. Kieffer, 991 F.3d 630, 634 (5th Cir. 2021). We do so because
`“the jury decides credibility of witnesses, not the appellate court.” Id. (citing
`United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001)). As the trial
`court in this case noted, the jury was presented directly with many challenges
`to the credibility of the witnesses:
`
`All of the cooperators were subject to extensive and lengthy
`cross-examination by defense counsel. All parties knew from
`the beginning that the cooperators’ credibility was central to
`the Government’s case, and each defendant benefited from
`every other defendant’s attack on the cooperators. The Court
`allowed extensive discovery as to the cooperators’ jailhouse
`calls. The jury was fully aware of the many credibility issues
`surrounding the cooperators but the jury nevertheless credited
`portions of their testimony. Their testimony was not incredible
`or facially insubstantial.3
`Accordingly, we defer to the credibility determinations of the jury, and we
`reject the challenges to the sufficiency of the evidence based solely upon such
`credibility determinations.
`
`
`
`3 Moreover, we note that the jury was instructed that “the testimony of a witness
`who provides evidence against a defendant for personal advantage, such as the possibility
`of a reduced sentence, must be examined and weighed by the jury with greater care than
`the testimony of an ordinary witness. The jury must determine whether the witness’s
`testimony has been affected by self interest, or by prejudice against the defendant.”
`
`8
`
`

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`2. RICO Conspiracy Convictions (Count 1)
`
`Several defendants challenge their RICO conspiracy convictions on
`
`appeal.4 “Conspiracy to violate any of RICO’s substantive provisions is a
`crime.” United States v. Jones, 873 F.3d 482, 489 (5th Cir. 2017) [hereinafter
`Jones I] (citing 18 U.S.C. § 1962(d)). “The elements of a RICO conspiracy
`are: (1) an agreement between two or more people to commit a substantive
`RICO offense; and (2) knowledge of and agreement to the overall objective
`of the RICO offense.” United States v. Onyeri, 996 F.3d 274, 280 (5th Cir.
`2021) (citing United States v. Rosenthal, 805 F.3d 523, 530 (5th Cir. 2015);
`18 U.S.C. § 1962). “These elements may be established by circumstantial
`evidence.” United States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005); see
`also United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998) (“The
`agreement, a defendant’s guilty knowledge and a defendant’s participation
`in the conspiracy all may be inferred from the development and collocation
`of circumstances.” (internal quotation marks and citation omitted)).5 “A co-
`conspirator needs only to have known of, and agreed to, the overall objective
`of the RICO offense.” Jones I, 873 F.3d at 489 (citing Salinas v. United States,
`522 U.S. 52, 61-66 (1997)). “Although a defendant’s mere presence at the
`scene of a crime is not, by itself, sufficient to support a finding that the
`defendant is participating in a conspiracy, presence and association may be
`
`
`
`4 Though we have examined the Count 2 drug conspiracy challenges by those
`defendants who raised them, we do not perceive any arguments that are separate and
`cognizable from their main Count 1 sufficiency arguments.
`5 Perry contends that there is a three-part test, set out in Reves v. Ernst & Young,
`507 U.S. 170 (1993), to determine sufficient participation in the conduct of an
`organization’s affairs to be convicted of a RICO conspiracy. However, in Posada-Rios, 158
`F.3d at 857, this Court rejected the use of that test for RICO conspiracy charges (Reves
`interpreted 18 U.S.C. § 1962(c), not § 1962(d)) and instead adopted the two-step standard
`set out above. See also Rosenthal, 805 F.3d at 532.
`
`9
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`considered by the jury along with other evidence in finding that the defendant
`participated in a conspiracy.” Posada-Rios, 158 F.3d at 857-58.
`
`Here, defendants were charged under § 1962(d)6 with conspiring to
`
`violate § 1962(c), which criminalizes racketeering activity by making it:
`“[U]nlawful for any person employed by or associated with any enterprise
`engaged in, or the activities of which affect, interstate or foreign commerce,
`to conduct or participate, directly or indirectly, in the conduct of such
`enterprise’s affairs through a pattern of racketeering activity or collection of
`unlawful debt.” 18 U.S.C. § 1962(c). A “pattern of racketeering activity” is
`at least two acts of racketeering activity that occurred within ten years of each
`other. 18 U.S.C. § 1961(5). “Racketeering activity” includes state felony
`offenses involving murder, robbery, and several other serious offenses, as
`well
`as
`serious
`federal offenses
`including narcotics violations.
`18 U.S.C. § 1961(1).
`
`An “enterprise” includes “any union or group of individuals
`
`associated in fact although not a legal entity.” 18 U.S.C. §§ 1959(b)(2),
`1961(4). Although RICO “does not specifically define the outer boundaries
`of the ‘enterprise’ concept,” the “term ‘any’ ensures that the definition has
`a wide reach, and the very concept of an association in fact is expansive.”
`Boyle v. United States, 556 U.S. 938, 944 (2009) (citations omitted). “[A]n
`association-in-fact enterprise must have 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.” Id. at 946. “The term ‘enterprise’ encompasses ‘an amoeba-like
`infra-structure that controls a secret criminal network’ as well as ‘a duly
`
`
`
`6 See 18 U.S.C. § 1962(d) (“It shall be unlawful for any person to conspire to violate
`any of the provisions of subsection (a), (b), or (c) of this section.”).
`
`10
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`formed corporation that elects officers and holds annual meetings.’” Jones I,
`873 F.3d at 490 (quoting United States v. Elliott, 571 F.2d 880, 898 (5th Cir.
`1978)).
`
`Defendants’ main challenges to the conspiracy convictions fall into
`
`two categories: (1) that there was insufficient evidence to show the “39ers”
`was an enterprise; and (2) that there was insufficient evidence of individual
`defendants’ involvement in the 39ers. We examine each in turn.
`
`i. The “39ers” Enterprise
`
`Defendants Owney, Walker, Neville, and Leroy Price contend that the
`
`Government did not put on sufficient evidence to show that the 39ers was an
`enterprise. Defendants point to testimony from cooperating witness
`Franklin, in which he said that New Orleans did not have gangs, just
`organizations, and that “Y’all consider us a gang. We consider ourselves as
`partners.”7 Defendants contend that the alliance at the heart of the 39ers was
`too loose of an association to meet the definition of an enterprise.
`
`We have previously recognized gangs with clear, collective and
`
`criminal purposes as RICO enterprises. In Jones I, defendants similarly
`argued that the alleged gang, Ride or Die (ROD), was not an enterprise but
`rather “just a bunch of young men who really like hanging out” and who
`occasionally pooled resources. Jones I, 873 F.3d at 490. We did not find that
`argument convincing, instead holding that “ROD had a clear purpose—
`selling drugs and protecting those drug sales and the group’s members—and
`its members were associated with one another” because they used a
`communal house to work out of, pooled their money on at least one occasion
`
`
`
`7 This testimony is not enough to overcome the reasonable inference drawn by the
`jury that the 39ers was an enterprise, because defendants do not attempt explain why
`organizations or partners cannot be enterprises.
`
`11
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`to buy drugs, divided territories, and stashed guns for other members’ use,
`alongside committing violent crime. Id. Defendants do not persuasively
`distinguish the 39ers from ROD.8 There was testimony in this case about
`meeting at a house, working out of hotel rooms, sharing guns, selling drugs
`and organizing and communicating to do so, and committing violent crimes.
`Furthermore, as the Government points out, the “39ers’ repeated drug-
`trafficking, sharing of guns, retaliatory and proactive violence, and
`cooperation from members of different parts of the group” all help support
`the jury’s verdict that the 39ers was an enterprise. We therefore hold that the
`39ers was an enterprise because it, like ROD, had a clear, collective, and
`criminal purpose – in this case, the purpose was selling drugs and protecting
`
`
`8 The indictment provided the following purposes of the 39ers enterprise:
`4. The purposes of the enterprise include, but are not limited to, the following:
`a) Enriching the members and associates of the enterprise through, among other things,
`the control of and participation in the illegal distribution of controlled substances in the
`territory controlled by the enterprise;
`b) Enriching the members and preserving and protecting the power, territory and profits
`of the enterprise through the use of intimidation, violence, and threats of violence,
`including assault, murder, and attempted murder;
`c) Promoting and enhancing the activities and authority of the enterprise and its
`members, and associates;
`d) Keeping victims, potential victims, and witnesses in fear of the enterprise and in fear
`of its members and associates through violence and threats of violence;
`e) Providing financial support and information to members and associates of the
`enterprise, including but not limited to those who were incarcerated, for committing
`acts of violence, illegal possession and distribution of controlled substances, and other
`offenses, and;
`f) Providing assistance to members and associates of the enterprise who committed
`crimes for an on behalf of the enterprise in order to hinder, obstruct, and prevent law
`enforcement officers from identifying, apprehending, and prosecuting the offender or
`offenders.
`
`
`12
`
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`those drug sales and the group’s members and territory (often through
`violent means).
`
`ii. Connection to the 39ers
`
`Defendants Owney, Walker, Peters, Ashton Price, Neville, Perry, and
`
`Leroy Price also argue in the alternative that, even if the 39ers could be
`considered an enterprise, they had no involvement in it. However, most of
`their arguments lack the completeness necessary to challenge the sufficiency
`of evidence of their convictions. For example, Perry argues in part that he
`was not implicated in photographs of the 39ers and that he was not named by
`some cooperators; Leroy Price argues in part that FBI Agent Jonathan Wood
`admitted that he never saw Leroy Price do any hand-to-hand transactions.
`Yet it is not enough for defendants to argue that they were less implicated
`than other defendants. “Once the government presents evidence of a
`conspiracy, it only needs to produce slight evidence to connect an individual
`to the conspiracy.” United States v. Virgen-Moreno, 265 F.3d 276, 285 (5th
`Cir. 2001); see also Posada-Rios, 158 F.3d at 858 (holding that a defendant can
`be convicted of conspiracy even if “he only participated at one level . . . and
`only played a minor role”). Defendants have not shown that the evidence
`here is insufficient such that this Court would overturn a verdict finding them
`guilty of a RICO conspiracy.
`
`The most developed individualized argument comes from Alonzo
`Peters. Peters argues that there was insufficient evidence to support his
`convictions, especially because his activities were not linked to the 39ers as
`an enterprise. He argues that, at most, the Government was able to show a
`personal relationship with cooperating witness Stewart, from whom he
`
`13
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`bought drugs.9 However, the jury heard, among other things: testimony from
`cooperating witness Stewart that Peters rented out hotel rooms and “knew
`about what we do” in those rooms; testimony from Stewart that Peters sold
`drugs; testimony from a Marriott employee that Peters rented rooms with an
`employee discount and that a gun was found in one of the rooms; and phone
`calls between Peters and Stewart. Given our deference to the jury’s verdict
`upon review, we conclude that there was sufficient evidence for all three of
`Peters’ convictions.
`
`3. VICAR Violation Convictions
`
`Several defendants also challenge the sufficiency of the evidence
`supporting their convictions for violations of VICAR, 18 U.S.C. § 1959(a).10
`“To establish that a defendant has violated VICAR, the government must
`show that (1) an enterprise existed; (2) the enterprise engaged in, or its
`activities affected, interstate commerce; (3) it was engaged in racketeering
`activity; (4) the defendant committed violent crimes; and (5) the defendant
`committed the violent crimes to gain entrance to, or maintain or increase his
`position in, the enterprise.” Jones I, 873 F.3d at 492; see also United States v.
`Portillo, 969 F.3d 144, 164 (5th Cir. 2020). We will reverse convictions under
`
`
`
`9 We note that the jury was instructed that “[t]he fact that a defendant may have
`bought drugs from another person or sold drugs to another person is not sufficient without
`more to establish that the defendant was a member of the charged conspiracy. Instead, a
`conviction requires proof of an agreement to commit a crime beyond that of the mere sale.”
`10 Section 1959(a) provides that “[w]hoever, as consideration for the receipt of, or
`as consideration for a promise or agreement to pay, anything of pecuniary value from an
`enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or
`maintaining or increasing position in an enterprise engaged in racketeering activity,
`murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in
`serious bodily injury upon, or threatens to commit a crime of violence against any individual
`in violation of the laws of any State or the United States, or attempts or conspires to do so,
`shall be punished . . . .” 18 U.S.C. § 1959(a).
`
`14
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`the fifth element if the prosecution cannot show enough of a connection
`between the violent crime and the enterprise, such that the jury could not
`have reasonably concluded that the violent crime was done in furtherance of
`the conspiracy. See Jones I, 873 F.3d at 493.
`
`i. Littlejohn Haynes Murder
`
`Defendants Lewis and Neville argue there is not enough evidence
`connecting the Haynes murder to the 39ers enterprise to support their
`convictions on that count. Several witnesses provided relevant testimony
`about the Haynes murder. Cooperating witness Franklin testified on direct
`examination that there were two “problem[s]” with Haynes: (1) Haynes gave
`someone a gun that killed Giz,11 and (2) Haynes sent someone to steal drugs
`that belonged to Stewart. Cooperating witness Franklin also testified that he
`did not want to see Haynes murdered, though he “knew it was going to
`happen to him.” Thus, when Haynes approached Franklin on the day
`Haynes was killed, Franklin told Haynes to leave. Cooperating witness
`Stewart testified that he wanted to kill Haynes “[b]ecause he robbed one of
`my customers out the drugs that I was fronting them” and that “[Lewis]
`wanted to kill him because he killed Giz.” Cooperating witness McCaskill
`testified that he would not have wanted Haynes to be murdered had he known
`of the homicide in advance, and that he was upset when he found out and
`tried to track down those responsible.
`
`Based on this testimony, defendants Lewis and Neville argue that the
`evidence presented at trial was insufficient to establish that they committed
`the Haynes murder to maintain or increase their positions in the 39ers.
`Rather, they contend that the murder was clearly motivated by a personal
`
`
`
`11 Franklin also testified that Giz was a friend of some of the men from the Florida
`Projects.
`
`15
`
`

`

`Case: 17-30610 Document: 00516317493 Page: 16 Date Filed: 05/12/2022
`
`No. 17-30610
`c/w No. 17-30611
`
`feud begun by the death of Giz and was actually opposed by Franklin and
`McCaskill. Nonetheless we hold that that, given Franklin’s testimony
`regarding the alternative motive of stolen drugs, as well as testimony that one
`needed to “be ready” to kill to prevent word getting out that one’s drugs had
`been stolen, there was sufficient evidence for the jury to make the reasonable
`inference that the murder was committed in furtherance of the charged
`conspiracies.
`
`ii. Faibvre Murder
`
`Defendants Perry and Ashton Price argue that there was insufficient
`evidence supporting their convictions stemming from the murder of Kendall
`Faibvre and the shooting of Jasmine Jones on February 22, 2010. Defendants
`argue that there was conflicting evidence related to the murder, including
`eyewitness identification of a different man by Jasmine Jones. Additionally,
`they argue that the murder lacks a link to the 39ers enterprise. In response,
`the Government highlights testimony from cooperating witness Stewart, who
`testified that he had a friend named Percy from the Florida Projects who was
`shot by men from Press Park, and that, subsequently:
`
`Well, Percy is [Peters’] partner, and [Peters] was acting like he
`was scared of them dudes. Like, he wrecked the man car, like,
`he was scared of them dudes. And I told him, I’m like, “Man,
`you got to handle your business. If one of my close partners like
`that get shot like that, I want to ride behind them, like. It don’t
`matter how it go. I am gonna ride behind them. I got to kill
`somebody behind them.” So I’m telling [Peters], like, “Man,
`we got to handle that. I want to help you.”
`Stewart then described the chronology of the shooting itself. The jury also
`heard testimony from Franklin that he was “aware” that Stewart retaliated
`for Percy because “[i]t was Jasmine Perry’s first time catching a body. So
`you’re going to brag about it. It’s like when you go to the prom that night or
`getting your diploma or whatever.” Franklin further testified that “Jasmine
`
`16
`
`

`

`Case: 17-30610 Document: 00516317493 Page: 17 Date Filed: 05/12/2022
`
`No. 17-30610
`c/w No. 17-30611
`
`Perry and them, they’re happy. Because, you know, you struck my team, and
`I struck back, you know. You paralyzed one, and I killed one of yours.”
`Additional evidence before the jury included the autopsy, Jasmine Jones’
`medical discharge sheet, crime scene photographs, and spent casings
`recovered from the scene. This evidence was sufficient to support the
`convictions. There was a connection to the 39ers because the jury could have
`credited Stewart’s testimony and made the reasonable inference that the men
`acted to protect the 39ers’ territory and members.
`
`iii. Marshall Murder
`
`Ashton Price argues that there was insufficient evidence he was
`involved in the Michael Marshall murder12 and also that there was no
`connection between the murder and the 39ers, because “[t]his was simply a
`murder for hire.” Price argues that the only evidence linking him to the
`murders is the testimony of cooperating witnesses Franklin and McCaskill.
`
`Franklin testified that “Somebody put a hit over [Marshall’s] head.
`Pound and Big Wash took it, and Leroy was the driver.”13 According to
`Franklin, “Merle told me that Big Floyd came at him, telling him that he
`needed somebody knocked off, which one of them he could holler at.” “Big
`Floyd wanted Michael dead because Michael wore a wire on him for some
`coke and set him up with a drug agency that took him down.”14 Big Floyd
`was not a 39er. For his part, McCaskill testified that he (McCaskill) was
`known as a killer, that he remembered being paid to kill a man named Michael
`
`
`
`12 Leroy Price also argues that there was insufficient evidence linking him to this
`
`crime.
`
`13 The jury heard te