United States of America v. Jerell Haynie, also known as Bottie, also known as “T”

United States Court of Appeals
For the Eighth Circuit
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No. 18-2681
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jerell Haynie, also known as Bottie, also known as “T”,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: March 17, 2021
Filed: August 11, 2021
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Jerell Haynie of a conspiracy under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”) based on his involvement with the Crips
street gang. The district court sentenced Haynie to 84 months’ imprisonment. On
appeal, Haynie argues that an error in the jury instructions requires a new trial. If the

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conviction is sustained, then he challenges the sentence imposed. We affirm the
conviction, vacate the sentence, and remand for resentencing.
I.
The Crips are a street gang known for their violent rivalry with another gang,
the Bloods. The Crips are organized into smaller groups called “sets” or “cliques.”
Haynie was a member of the 40th Avenue Crips, one of several cliques in Omaha.
In June 2017, a grand jury returned an indictment against Haynie, alleging that
he committed crimes as part of his involvement with the Crips. At the time, Haynie
was imprisoned in Nebraska after convictions for three controlled substance offenses
under state law.
Count I of the indictment charged Haynie with conspiring to violate RICO
through a “pattern of racketeering activity” as part of an “enterprise,” the Crips gang.
See 18 U.S.C. § 1962(c), (d). A “pattern of racketeering activity” consists of “at least
two acts of racketeering activity.” Id. § 1961(5). Racketeering activity includes
several federal and state offenses that are often described as RICO predicate offenses.
See id. § 1961(1). Count I alleged that Haynie and his co-conspirators each
committed at least two racketeering acts in furtherance of the conspiracy. Haynie’s
alleged acts included the distribution of crack cocaine, and attempts to shoot fellow
Crips gang members whom Haynie believed were cooperating with law enforcement.
The indictment also charged Haynie with three counts related to the alleged
attempted shooting of a fellow gang member. Count II charged attempted murder in
aid of racketeering, see id. § 1959(a)(5), Count III charged attempted assault with a
dangerous weapon in aid of racketeering, see id. § 1959(a)(6), and Count IV charged
brandishing and discharging a firearm during a crime of violence. See id.
§ 924(c)(1)(A)(ii), (iii).
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Haynie proceeded to trial in February 2018. The jury found him guilty of the
conspiracy charged in Count I, but acquitted him on the other three counts. At
sentencing, the district court calculated an advisory guideline range of 77 to 96
months’ imprisonment, and sentenced Haynie to an 84-month term, to be served
concurrently with any remaining term of imprisonment in state custody.
II.
Haynie first contends that his conviction on Count I should be reversed because
the district court erred in instructing the jury. We review a district court’s
formulation of the jury instructions for abuse of discretion, and its interpretation the
law de novo. United States v. Thetford, 806 F.3d 442, 446 (8th Cir. 2015).
Haynie contends that the instructions erroneously provided that an attempt to
commit a state offense could qualify as racketeering activity. Instruction No. 35
listed “criminal attempt” as an act of racketeering that could constitute part of a
“pattern of racketeering activity.” R. Doc. 628, at 8. Instruction No. 37 then
explained that the Nebraska crime of criminal attempt was charged as a type of
racketeering activity. Haynie maintains that an attempt to commit an offense under
state law cannot be an act of racketeering that contributes to a pattern of racketeering
activity.
Racketeering activity includes “any act or threat involving” one of nine generic
crimes, such as murder or dealing in a controlled substance, that “is chargeable under
State law and punishable by imprisonment for more than one year.” 18 U.S.C.
§ 1961(1)(A) (emphasis added). Subsections (A) and (D) of § 1961(1) use the term
“involving,” and are thus broader in scope than subsections (B), (C), and (E), which
list offenses indictable under specific provisions of the criminal code. United States
v. Weisman, 624 F.2d 1118, 1123-24 (2d Cir. 1980). We have understood the word
“involving” to have an expansive connotation that extends to acts that are “related to
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or connected with” an enumerated offense. United States v. Bynum, 669 F.3d 880,
886 (8th Cir. 2012) (internal quotation omitted). An attempted sale of drugs, for
example, is an offense “involving” the distribution of drugs under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). United States v. Coleman, 700 F.3d 329, 339 (8th
Cir. 2012). In the context of RICO, this court and other circuits uniformly have held
that inchoate offenses of attempt and conspiracy to commit an enumerated offense
that would be racketeering activity require an act “involving” the enumerated offense.
United States v. Darden, 70 F.3d 1507, 1525 (8th Cir. 1995); see United States v.
Rodriguez, 971 F.3d 1005, 1013-14 (9th Cir. 2020); United States v. Warneke, 310
F.3d 542, 546-47 (7th Cir. 2002); United States v. Echeverri, 854 F.2d 638, 648-49
(3d Cir. 1988); United States v. Manzella, 782 F.2d 533, 537-38 (5th Cir. 1986);
United States v. Ruggiero, 726 F.2d 913, 918-19 (2d Cir. 1984). The district court
thus did not err in instructing the jury that Haynie’s attempts to commit state-law
crimes could serve as RICO predicate offenses.
Haynie also maintains, however, that the court erroneously instructed the jury
that Count III, which charged him with attempted assault with a dangerous weapon,
could serve as a predicate act of racketeering. He cites Instruction No. 35, which
addressed “pattern of racketeering activity” for purposes of the conspiracy charged
in Count I. The instruction stated that to find a pattern of racketeering activity, the
jury must find that Haynie
agreed that some member or members of the conspiracy would commit
at least two acts of racketeering within ten years of each other, such as
the acts charged as separate crimes in Counts II and III of the Second
Superseding Indictment, as instructed in Instruction No. 15A to
Instruction No. 18, or the crimes of murder, criminal attempt, tampering
with a witness, victim, or informant, distribution of controlled
substances, or conspiracy to distribute controlled substances, as
instructed in Instruction No. 36 to Instruction No. 40.
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R. Doc. 628, at 8. The government concedes the reference to Count III was a mistake,
because assault with a dangerous weapon—the offense charged in Count III—is not
an act of racketeering under § 1961(1)(A).
Haynie did not object to the instruction in the district court, so we review only
for plain error. See Fed. R. Crim. P. 52(b). To obtain relief, Haynie must show an
obvious error that affected his substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732-35 (1993).
When evaluating a challenge to jury instructions, we do not view each
instruction in artificial isolation, but consider any disputed instruction in the context
of the overall charge to the jury. We then assess whether there is a “reasonable
likelihood” that the jury instructions, taken as a whole, misled the jury to convict the
defendant based on an incorrect standard. Boyde v. California, 494 U.S. 370, 378-80
(1990); United States v. Winn, 628 F.3d 432, 438 (8th Cir. 2010). On plain error
review, therefore, Haynie must show that the reasonable likelihood of misleading the
jury was “obvious.” If that prong is satisfied, then he must show a reasonable
probability that the error affected the outcome of the trial.
On the question of error, the jury instructions were internally inconsistent on
the definition of racketeering activity. Instruction No. 12, entitled “Nature of the
Offenses,” explained that Count I alleged a pattern of racketeering activity that
encompassed several crimes, but did not list assault with a dangerous weapon. R.
Doc. 627, at 15. Instruction No. 13 defined “racketeering activity” to mean any act
or threat involving a series of enumerated offenses, such as murder and distribution
of controlled substances, but did not mention assault with a dangerous weapon. Id.
at 17.
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Instruction No. 35 on “pattern of racketeering activities” then included the
errant reference to the crime charged in Count III (assault with a dangerous weapon)
as an act of racketeering. The next five instructions were entitled “Pattern of
Racketeering Activity,” and each addressed a separate act of racketeering enumerated
in Instruction No. 35—first degree murder (No. 36), criminal attempt (No. 37),
witness tampering (No. 38), distribution of controlled substances (No. 39), and
conspiracy to distribute controlled substances (No. 40). None of those individual
instructions on “pattern of racketeering activity” concerned assault with a dangerous
weapon.
There is reason to doubt, taking all of these instructions together, that a jury
was reasonably likely to rely on attempted assault with a dangerous weapon as an act
of racketeering. The assault offense was absent from the definition of the charged
pattern of racketeering activity in Instruction No. 12 and omitted from the definition
of “racketeering activity” in Instruction No. 13. Unlike the crimes of murder, drug
trafficking, and witness tampering, which were enumerated in Instructions No. 12, 13,
and 35, the offense of assault with a dangerous weapon received no freestanding final
instruction that defined it as racketeering activity. The jury would have convicted on
an impermissible theory only if it relied on the errant cross-reference to Count III in
Instruction No. 35, despite its inconsistency with other instructions.
Even assuming, however, that the reference to Count III in Instruction No. 35
created an obvious error in the instructions as a whole, Haynie has not shown that the
error affected his substantial rights. To meet that prong of the plain-error analysis,
Haynie must show a reasonable probability that the disputed instruction affected the
verdict. That argument fails in this case, because the jury acquitted Haynie on Count
III, and there was strong evidence that he committed other acts of
racketeering—distribution of controlled substances—that supported the conviction
on Count I. Haynie conceded that he distributed drugs; two witnesses testified that
they purchased crack cocaine from Haynie; and Haynie pleaded guilty to two drug
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trafficking charges in state court. There is no reasonable probability that the jury,
having found Haynie not guilty of attempted assault with a dangerous weapon,
inconsistently relied on attempted assault with a dangerous weapon to convict him
of the RICO conspiracy.
III.
Haynie next contends that the district court erred at sentencing in calculating
an advisory guideline range. We conclude that the district court mistakenly treated
aggravated assault with a firearm as an act of racketeering for purposes of the
guidelines, and this error affected the guideline range. The error was not harmless,
so a remand for resentencing is required.
When a defendant is convicted of a RICO offense, the defendant’s base offense
level under the sentencing guidelines is the greater of 19 or “the offense level
applicable to the underlying racketeering activity.” USSG § 2E1.1(a)(1), (2). The
commentary provides that “[w]here there is more than one underlying offense,” the
district court should “treat each underlying offense as if contained in a separate count
of conviction for the purposes of” determining the base offense level. See id.
§ 2E1.1, comment. (n.1). Although the jury acquitted Haynie of attempted murder
and attempt to commit assault with a dangerous weapon, a sentencing court is not
precluded from considering conduct underlying an acquitted charge if the conduct has
been proved by a preponderance of the evidence. United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam).
The district court calculated Haynie’s offense level under § 2E1.1(a)(2). The
court based its calculation on three separate underlying racketeering activities:
distribution of crack cocaine, aggravated assault with a firearm in September 2008,
and aggravated assault with a firearm in September 2012. All three activities carried
an offense level of 19, see USSG §§ 2A2.2(a), (b)(2)(A), 2E1.1(a)(1), and the
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grouping rules under the guidelines brought the combined offense level for the RICO
conspiracy offense to 22. See id. § 3D1.4.
Aggravated assault with a firearm, however, is not a racketeering activity under
18 U.S.C. § 1961(1) or USSG § 2E1.1, so the district court erred in considering those
offenses as “underlying racketeering activity” under § 2E1.1(a)(2). Without that
error, Haynie’s offense level would have been 19 rather than 22. The government
contends that the error was harmless, because the district court said at sentencing that
“even if the guidelines range had been higher, the court would have varied downward
and would have imposed the same sentence.” Without the error, however, the
guideline range would have been lower, not higher, and the court did not speak to
whether it would have varied upward from a lower advisory guideline range. The
record is therefore insufficient to establish that the error in calculating the guideline
range was harmless, and resentencing is required.
Haynie raises three other sentencing issues. First, he maintains that he should
have received full credit under USSG § 5G1.3(b) on his advisory federal sentence for
time that he served in Nebraska state prison before his federal sentencing. Haynie did
not raise this point in the district court. Because the case must be remanded for
resentencing, we decline to address the issue at this time and leave it for the district
court to consider in the first instance in a renewed proceeding.
Second, he argues that the district court plainly erred by ordering that Haynie’s
federal sentence would “start today”—i.e., on the date of his federal sentencing.
Again, Haynie did not raise this objection in the district court, but he is correct that
only the Bureau of Prisons “has the authority to determine when a federal sentence
commences.” United States v. Hayes, 535 F.3d 907, 910 (8th Cir. 2008); see United
States v. Wilson, 503 U.S. 329, 335 (1992). Haynie’s federal sentence will not begin
to run until state authorities release him to the Bureau of Prisons. See 18 U.S.C.
§ 3585(a). The district court may reconsider this matter at resentencing.
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Third, Haynie contends that the district court erred in imposing a special
condition of supervised release. At the sentencing hearing, the court said that it
would impose “all the special conditions that are outlined in the presentence
investigation report and recommendation.” Special condition J in the government’s
sentencing recommendation provided that Haynie “must not associate with any
member, prospect, or associate member of any criminal street gang.” Although the
condition does not appear in the written judgment, the oral pronouncement of
sentence typically controls when there is a conflict. United States v. Mayo, 642 F.3d
628, 633 (8th Cir. 2011) (per curiam).
In United States v. Washington, 893 F.3d 1076 (8th Cir. 2018), this court
concluded that a condition stating that the defendant could not “knowingly associate
with any member, prospect, or associate member of any gang” was unconstitutionally
vague. Id. at 1081. The court ruled that the undefined term “gang” was vague
because it gave “no notice as to which groups of people are actually covered,” and it
encompassed groups of people who are not associated with criminal activity. Id.
Washington also said that the term “associate member” was vague, because it would
include those who have only a social connection to an individual gang member, and
could extend even to a probation officer. Id. The Second Circuit in United States v.
Green, 618 F.3d 120, 123 (2d Cir. 2010) (per curiam), reached a different conclusion
as to the term “criminal street gang,” because it is cabined by a clear statutory
definition in 18 U.S.C. § 521(a). At resentencing, the district court may reconsider
whether to impose special condition J in light of Washington and Green.
* * *
For these reasons, the judgment of conviction is affirmed, but the sentence is
vacated, and the case is remanded for resentencing. Haynie’s pro se motion for ex
parte hearing is denied.
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