USA v. Alfonzo Churchwell, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10373
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW THOMPSON,
a.k.a. Nico,
ALFONZO CHURCHWELL,
a.k.a. Boo Boo,
JORDAN RODRIGUEZ,
a.k.a. Big Man,
Defendants-Appellants.
____________________
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Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00205-WFJ-TGW-3
____________________
Before G RANT, L UCK , and H ULL , Circuit Judges.
L UCK , Circuit Judge:
Jordan Rodriguez, Alfonzo Churchwell, and Andrew
Thompson were members of a gang called “Third Shift” that sold
drugs, robbed, fought with rival gangs, and murdered in further-
ance of the gang’s operations. They were charged with a slew of
crimes that the gang committed, convicted of most of them, and
sentenced to life in prison. They now appeal their convictions,
challenging the sufficiency of the evidence, an evidentiary ruling,
the jury instructions, the district court’s response to a jury ques-
tion, and comments the district court made about Rodriguez’s
counsel’s strategic choices. After careful review, and with the ben-
efit of oral argument, we affirm their convictions.
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20-10373 Opinion of the Court 3
FACTUAL BACKGROUND1
The Third Shift gang
The Third Shift gang was based in Oneco, a suburb of
Bradenton, Florida. Rodriguez, Churchwell, and Thompson were
members of Third Shift. Rodriguez and Thompson were child-
hood friends. Rodriguez’s sister Maryha—who was also Thomp-
son’s ex-girlfriend—described the two as “best friends” and said
Thompson was Rodriguez’s “little do-boy,” meaning Thompson
“would always choose [Rodriguez], always, even with risking his
family.” Thompson’s brother-in-law, Johnny Cintron; Cintron’s
friend, Phillip Uscanga; Uscanga’s friend, Raymy; Rodriguez’s
brother, Jesse; and a man known as Macho were Third Shift mem-
bers too.
Cintron testified to seeing Rodriguez “rep” Third Shift—
“[t]hrowing up gang signs [and] stuff like that”—“and talk about
being in the gang.” Cintron said the gang’s sign was “like an A-ok
sign”; the gang also had a color (black), an “affiliated” or “friendly
gang[]” (North Side), and a “rival gang[]” (South Side). Cintron saw
Thompson “throw up the gang sign” and wear the gang’s “flag” (“a
black bandanna”). And he heard Macho sing a Third Shift song.
1 “[W]e recount the facts . . . in the light most favorable to the government
and draw all reasonable inferences in favor of the jury’s verdict.” United States
v. Martin, 803 F.3d 581, 585 n.1 (11th Cir. 2015).
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The trap house
Third Shift operated a “trap house”—a place where people
“go[] to purchase drugs and use drugs on [the] premises”—on 11th
Street East in Oneco. J.R., Churchwell’s “close” friend and a “big
hitter” drug dealer in the Bradenton area, “opened” the trap house
and “put[] his man [Rodriguez] in there” to “make some money.”
Rodriguez lived there, paid rent and utilities, and was “in charge.”
According to Cintron, Rodriguez ran the trap house from mid-2015
through late 2016 and had no other job.
During that time, Rodriguez, Cintron, Jesse, and other Third
Shift members hung out at the trap house “[a]lmost every day.”
Pole cameras (installed by local law enforcement in June 2016) cap-
tured Thompson at the trap house several times, and both Cintron
and Thompson himself testified that Thompson was there about
once a week. Cintron saw Churchwell at the trap house “[a] couple
days,” and Cintron and Jesse’s friend, Quentin Couch, saw Church-
well there too.
The members of Third Shift sold drugs from the trap house.
In fact, Stephanie Brewer—the trap house’s housekeeper—said
buying and using drugs was “the main thing that went on in th[e
trap] house.” Rodriguez’s neighbor testified to seeing “a lot of traf-
fic” coming and going, and a lot of “[p]eople hanging out,” at the
trap house. Pole camera footage similarly showed “lots of short-
term traffic”—by car, bicycle, and foot—with people visiting the
trap house “at all hours of the day and late into the night and the
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20-10373 Opinion of the Court 5
early morning hours,” often for less than four minutes. A law en-
forcement search on September 11, 2016, revealed drug parapher-
nalia around and throughout the trap house—including a digital
scale, syringes, glass pipes, a plastic pill bottle, plastic gloves, and
plastic baggies—plus containers of cash. A later search turned up
more syringes, as well as a duffle bag containing “a bunch of pill
bottles” holding “numerous unidentified pills and also narcotics.”
J.R. would cook crack cocaine at the trap house a few times
a week, after which Rodriguez would “break[ the crack cocaine]
down into small pieces,” “separating them and organizing them”
on the kitchen table. Rodriguez kept drugs—crack and powder co-
caine, marijuana, heroin, and pills, “[a]nything that you needed”—
in a backpack in his bedroom and sold them from the trap house’s
kitchen or living room multiple times a day. He sold to Cintron a
few times a week and he twice enlisted Cintron to sell marijuana
and crack cocaine on his behalf when Rodriguez was busy. Couch
said he bought marijuana from Rodriguez at the trap house
“[m]ore than probably like a hundred times,” and Maryha bought
marijuana from Rodriguez too. Shazlynn Dunton (Thompson’s
girlfriend) bought marijuana and cocaine from Rodriguez, and
Brandi Simon admitted both to buying marijuana and crack co-
caine from Rodriguez and to paying him to use a room at the trap
house to take pills or shoot Dilaudid.
Pole camera footage from January 2017 showed Rodriguez
dealing drugs out of a van parked in front of the trap house. When
officers initiated a traffic stop of the van shortly after observing the
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drug transactions, they discovered marijuana, “several bags of
crack cocaine,” powder cocaine, narcotics, unlabeled prescription
pill bottles, baggies, a scale, two rifles, a handgun, a pistol, a holster,
ammunition, a baton, zip ties, a flashlight, and around $3,700 cash.
Rodriguez would later tell a cellmate at FCI Coleman Low that he
had sold marijuana and heroin from the trap house.
Others, including Churchwell and Thompson, sold drugs
from the trap house too. Brewer testified that Rodriguez “had men
underneath him”—“younger boys”—selling drugs at the trap
house. Cintron admitted he started selling crack that he bought
from Rodriguez because he “was just there, and [he] would see
how many people would come[, s]o [he] just started doing it also.”
Rodriguez knew he was selling from the trap house, Cintron said,
but Cintron “never had to get [Rodriguez’s] permission.”
Cintron also saw Churchwell at the trap house “[a] couple
days” selling crack and heroin. Churchwell received and sent text
messages arranging sales of heroin and molly too. And when
Churchwell was arrested in September 2016, multiple baggies con-
taining heroin were confiscated from him.
As for Thompson, he admitted to selling drugs for Dunton
a few times “when it wasn’t available or convenient for her to han-
dle her business.” But Maryha testified that she saw Thompson sell
marijuana, Kyle Stackhouse (another drug dealer who knew
Thompson from the neighborhood) saw him sell crack cocaine,
and Dunton saw Thompson sell methamphetamine as well.
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20-10373 Opinion of the Court 7
Thompson and Churchwell sometimes sold drugs they had pur-
chased from Rodriguez; other times, they sold drugs they’d pro-
cured elsewhere.
Rodriguez
Rodriguez flaunted his gang activities on social media. His
posts regularly referenced “thug life” and “G shit.” In April 2016,
Rodriguez posted: “im out here tryna grind in each and every way,
stackin up my paper tryna avoid catching a case.” And a few days
later, he posted:
i been thuggin it since i was 14, i swear i couldnt stay
out the court scene . . . . i get out there and thug it
cause i aint no ones concern . . . . i aint had a job in
so long cause all i know is the streets.
Rodriguez also posted about using firearms and other forms of vi-
olence. For example, about a week after a January 2016 drive-by
shooting we discuss in detail below, Rodriguez posted a status up-
date declaring:
I play this game well I feel like its monopoly, except
I’m grinding hard I don’t see nothing stopping me,
tossin out that money like I’m some kind of slot ma-
chine, keep ya eyes to yaself before u hear that choppa
scream, 100 round drum and its fully loaded, take me
as a joke but ima shoot it if I tote it.2
2 “Choppa” (or chopper) is street slang for an assault rifle.
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A few days later, he updated his status: “It’s time to leave state
cause [n-words] is gna make me go Rambo dog g shit.” Then, in
April 2016, he commented: “i been in oneco my whole life and
these hoes really got shit fucked up talking like they bad cause ill
make them disapear.”
Rodriguez used his social media to complain about—and
even taunt—snitches too. In one status update, he said: “Facebook
gangster right here [n-word] my adress is 5832 11th street east came
fade”—that is, “come fight”—“if u want it [n-word] aint nobody
scared [n-word] but believe me if u pull a gun im killing yo ass [n-
word], fuck talking run up.” Similarly, a few weeks after the Janu-
ary 2016 drive-by shooting, he challenged people who “think they
hard but wna talk to the police and snitch”: “I stay on 11th street
come my way with that p**** shit dog I know real crips that’ll
check yaw ass.” Later the same day, he sent a message ranting
about people “who act gangsta but they wna talk to police when
gangsta shit goes down bruhh I just needa get out of state before I
catch a charge for fukin somebody up dog.”
Apart from posting on social media, Rodriguez protected
the trap house in numerous ways. The refrigerator—which the
September 2016 search revealed to contain beer and a drawer of
money—was secured with a lock. He had Brewer (the house-
keeper) periodically “go in”—“[e]verybody that was [there] using
[drugs] had to get out”—and “bleach and clean the whole trap
house.” She’d “bleach everything down,” “bring out” all the drug
“paraphernalia,” and collect anything of “monetary value” to “give
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20-10373 Opinion of the Court 9
back to the house man.” Rodriguez or J.R. paid Brewer with
“[m]aybe just a little spending money but mostly with drugs.”
Rodriguez also installed security cameras outside the trap
house, and a TV in the living room displayed a live feed of the sur-
rounding area. And he supplied countless firearms, teaching Third
Shift members to wipe ammunition clean of fingerprints before
loading them. Cintron saw “[a]n AK, a shotgun . . . [i]n the living
room,” and “a couple pistols” (specifically, a revolver and a “regu-
lar” 9-millimeter). Couch saw an FN gun, a “mini Draco”—“[a]
mini chopper, like a mini AK”—and a “little Warthog gun,” all be-
longing to Rodriguez. The September 2016 search turned up a
semiautomatic handgun, plus holsters, magazines, ammunition (of
various calibers, including rifle ammunition and shotgun shells),
and spent casings throughout the trap house.
Lots of people handled Rodriguez’s firearms while at the
trap house. According to Brewer, “whoever was in the[ trap house]
usually had [Rodriguez’s] guns on them,” and Cintron said he
“would go in and just pick [the revolver] up” himself. Cintron re-
called Rodriguez and his brother Jesse holding the firearms; he also
saw Thompson “grab the [AK-47] and play with it” when he
stopped by the trap house. Pole camera footage confirmed this,
showing Rodriguez and Thompson armed—Thompson with a “ri-
fle-style firearm,” at one point—while around the trap house. And
Thompson admitted, while testifying, that he “handle[d] assault
weapons” both at Rodriguez’s house and at his own. Maryha tes-
tified that Thompson “kept a lot of guns at [their] house” and
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would “[p]lay with them, . . . [p]oint[ing] the lasers on [the] guns”
at police vehicles; Stackhouse likewise testified that Thompson
once “rode by [on a bicycle] and pointed [an AK-38 or 40] at the
truck [Stackhouse] was sitting in.”
The gang’s murders
Theft and violence went hand in hand with Third Shift’s
drug business. Cintron testified that members of Third Shift “reg-
ularly committed thefts.” A Manatee County deputy described see-
ing Thompson take a bike—then quickly replace it after noticing
he was being watched. And Maryha and Dunton both recalled
Thompson bragging about committing robberies. After one rob-
bery—during which Third Shift members stole “a TV and a pistol
and some money”—Rodriguez “threatened to slap the shit out of”
Cintron’s sister for calling the police.
Third Shift members also engaged in gun fights. And they
murdered rival gang members, other drug dealers, and even com-
plaining customers. Three of those murders are relevant to this
appeal.
Rodriguez’s murder of Julio Tellez
First, Rodriguez killed Julio Tellez, a rival gang member,
during a drive-by shooting. On the morning of New Year’s Day,
2016, two Third Shift members—Cintron and Uscanga—drove
Uscanga’s red Mustang convertible, top down, to a corner store to
buy cigars. Members of their rival gang, South Side, were at the
store. Third Shift was “always in altercations with” South Side, and
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20-10373 Opinion of the Court 11
this New Year’s Day was no different. Two South Side members
attacked Cintron with a long wooden stick outside the store and
then fled in a minivan after Cintron overpowered them.
Cintron and Uscanga chased the minivan all the way back to
a “South Side gang member’s house,” “telling [them] to pull
over”—and at one point Cintron threw a water bottle through the
van’s open window. Cintron recognized the house from “a prior
time when [he, his brother, Macho, and Jesse] got into an alterca-
tion over there.” That time, “[a] bunch of dudes came out with
guns”; so Cintron, unarmed but worried there might again be
armed South Side members at the house, decided to abandon the
chase. He and Uscanga instead went to retrieve Uscanga’s gun
from fellow Third Shift member Raymy, and then the three went
to the trap house for ammunition.
The house the minivan fled to, it turns out, belonged to
Tellez; the South Side members went there because Tellez had told
them “he would have [their] backs” if they “ever needed anything.”
When they arrived, though, Tellez sent them away: he didn’t have
any firearms on hand and “didn’t want nothing to do with what
they had going on.” But because “he felt like some trouble was
going to happen,” Tellez summoned help from his friend Eliceo
Santoyo, who brought over a 9-millimeter Beretta and an SKS.
Meanwhile, at the trap house, Cintron told Rodriguez and
Macho about the fight at the corner store and got ammunition
from Rodriguez (who had supplied him with bullets before). The
Third Shift members hatched a plan to retaliate for the attack:
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Uscanga would drive Cintron and Raymy by Tellez’s house in the
red Mustang—top up this time, “[s]o [the men] couldn’t be seen”—
and Cintron (the only one armed in the car) would “just start shoot-
ing” to lure people out of the house. Then Rodriguez would drive
his blue Honda by the house, with Macho (unarmed) in the passen-
ger seat, and “finish the job”—“mean[ing] whoever came out[, Ro-
driguez] was going to start shooting at.”
Things went exactly as planned. As Uscanga drove the red
Mustang past Tellez’s house, Cintron shot into the empty yard.
Cintron’s shots drew Tellez, Santoyo, and Tellez’s friend Juan
Montoya outside from the living room; they didn’t return fire be-
cause the Mustang “was already kind of far down the road” by then
(and because Santoyo noticed some children playing nearby).
Then, as the men started heading back inside the house, Rodriguez
“rolled up and parked [the Honda] in front of the house,” “halfway
in the road, halfway in the driveway.” Rodriguez reached across
Macho and fired through the passenger-side window, killing Tellez
and wounding Montoya. When Santoyo fired back, Rodriguez
fled. Macho would later complain to Cintron about being burned
by shell casings when Rodriguez fired over him from the driver’s
seat.
After the murder, the Third Shift members returned to the
trap house. Cintron recalled Rodriguez telling him that the initial
shots had lured people out of Tellez’s house but “they were fo-
cused on [the red Mustang], and [Rodriguez] got the upper hand
on them and started shooting,” after which Rodriguez “saw a body
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20-10373 Opinion of the Court 13
drop.” Rodriguez admitted to Couch—and later to his cellmate at
Coleman Low—that he shot Tellez. Rodriguez also bragged to the
gang members that he had shouted “Fuck South Side” as he shot
Tellez. And Rodriguez told the others there was a bullet hole in
his Honda; Cintron saw the hole in the car’s right back fender. Ro-
driguez eventually told Cintron that he had the Honda fixed at a
body shop before selling it. DMV records confirmed that Rodri-
guez sold the car three weeks after the shooting, and officers exam-
ining the car discovered both visible gunshot damage to the trunk’s
interior and an area “on the passenger side just above the taillight”
with “a lighter blue” exterior paint. According to Cintron, Rodri-
guez disposed of the guns used in the shooting too.
Churchwell’s murder of Earnestine Gardner
Second, Churchwell murdered Earnestine Gardner in the
front yard of the Third Shift trap house. The morning of Septem-
ber 11, 2016, Couch saw Churchwell at the house armed with one
of Rodriguez’s revolvers. Brewer, the trap house’s housekeeper,
arrived early that morning to find Gardner “arguing with [Church-
well] out front” about being shorted ten dollars in change after
Gardner bought cocaine from Churchwell.
Rodriguez was sleeping at the time. Because Brewer was
worried the argument would attract the police’s attention, she sent
someone to wake up Rodriguez in hopes that he’d “diffuse[]” the
situation. When Rodriguez went outside, Churchwell came inside
and sat beside Brewer in a pair of chairs near the kitchen. Shortly
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after, Gardner “came in[side] . . . and walked straight to [Church-
well] . . . and stood right up over him.” Gardner told Churchwell
she was “gonna show [him that she] don’t play about [her] money”;
then she walked back outside.
“[A]s soon as [Gardner] got through the threshold of the
door,” Churchwell stood up, went to the doorway, then turned
back to look at Brewer. He “looked at [Brewer] for three long sec-
onds,” silent, before “pull[ing] his .45 and turn[ing] around and
[shooting Gardner] in the back.” According to Brewer, Churchwell
then “walked up on [Gardner] and he shot her three more times.”
Pole camera footage showed Churchwell fleeing on foot; he would
later admit to his cellmate at Coleman Low that he had shot Gard-
ner. Gardner died at the hospital from her injuries.
Rodriguez called 911 at 6:38 a.m.—about two minutes after
Gardner was shot. Even though he was standing close to Church-
well when Gardner was murdered, Rodriguez told law enforce-
ment officers that he had been sleeping when he heard gunshots
outside his house, hadn’t seen the shooter, and didn’t know who
the victim was. And even though Churchwell and Rodriguez had
called each other nineteen times on the day of Gardner’s murder,
Rodriguez later told the police that he didn’t know who Church-
well was either. Rodriguez texted Churchwell a few times that day
too, including sending a message at 9:23 a.m. reading “Bruh call me
u str8.”
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Several months after Churchwell was arrested for Gardner’s
murder, he called Rodriguez several times from jail. In a mid-No-
vember 2016 call, Rodriguez told Churchwell he got his security-
camera DVR back from the police. Churchwell said he was “shit-
ting for a minute,” but Rodriguez assured him that “we straight”
because the DVR “ain’t have nothing” on it, so “all the[ police] got
is [Brewer].” Churchwell also said that if he could figure out who
had been at the trap house the day of Gardner’s murder, then his
“private investigator” could “talk to people” and “verify” Church-
well wasn’t there. Rodriguez said “I gotcha[] bro. I’ll have people
call.” Churchwell later told Rodriguez that his investigator could
“get everybody . . . [r]ounded up. . . . Boom, boom, boom, you
know what I’m saying?” Rodriguez responded “Yeah.”
“[O]utta everybody,” Churchwell said, Rodriguez “keep[s]
it the real[e]st”—“when I came . . . back from court, bro, I was like,
damn, bro showed up for real, baby”—and Churchwell was “gonna
carry that back to” Rodriguez, telling him: “[Y]ou got a [n-word]
on your team, boy, that’s gonna ride or die about you now . . . . I’d
spill my blood for you, boy. . . . I’m fixing to ride for a [n-word],
bro, that’s what it is, [n-word]. That’s what it is. You ain’t gotta
worry about nothing now. Straight up.” “I be wanting you to get
the fuck up outta there,” Rodriguez responded. Rodriguez also
commented that the police suspected Churchwell of Gardner’s
murder because “[Churchwell] already got a previous charge . . . so
they already looking at it, like, yeah, he capable of it ‘cause he al-
ready did it.”
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Later, in January 2017—during what Churchwell warned
would “be the last time [he] call[ed]”—Churchwell asked Rodri-
guez whether he “got rid of [Churchwell’s] three-wheeler, you feel
me, that three-wheeler.” “[N]othing else” was worrying him,
Churchwell said. Rodriguez assured Churchwell that it was al-
ready “gone.” In that case, Churchwell said, “don’t worry about
nothing. You know what I’m saying? My lawyer said we good,
bro.” A Manatee County Sheriff’s Office detective who listened to
the jail call testified that the meaning of “three-wheeler” was “un-
known” but that he “highly doubt[ed]” Churchwell meant a bike.
Thompson’s murders of Berry Joseph
and Lashawna Stevenson-Weeks
Third, Thompson murdered Berry Joseph and LaShawna
Stevenson-Weeks. Joseph was a local drug dealer from whom
Thompson and his girlfriend Dunton bought cocaine. In January
2017, Thompson told Dunton he was going to see Joseph to repay
a debt. Thompson drove off, armed and wearing a hat, in Dunton’s
Pontiac G6 to meet Joseph. Thompson met Joseph in a parking lot,
followed him back to Joseph’s house, and parked next to Joseph’s
Explorer.
A neighbor across the street saw, from her porch, the two
vehicles parked in Joseph’s driveway. She reported seeing one per-
son inside Joseph’s Explorer and two men—one wearing a red
hat—standing next to it. The neighbor heard a gunshot, saw a per-
son lying on the ground while the man with the red hat leaned into
Joseph’s Explorer, and then heard more gunshots. The man in the
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red hat then drove away in the Pontiac, “[n]onchalant, like nothing
happened.” The neighbor would later identify Thompson as the
shooter in a photo line-up, and officers would match prints col-
lected from the Explorer’s front driver’s side window to Thomp-
son. The man lying on the ground by the Explorer was Joseph, and
the person in the vehicle was Stevenson-Weeks; both died from
gunshot wounds.
Starting about forty-five minutes after the murders—and
continuing throughout the next two and a half hours—Thompson
and Rodriguez spoke by phone eight times (and a ninth by text).
During that time, Rodriguez used his own car to drive Thompson
back to Thompson’s house. Thompson burned his clothes on a
grill as soon as he got home. While Thompson was showering,
Dunton went into their living room to inspect the dark-colored
“men’s toiletry bag or razor bag”—a description matching the bag
Joseph used to carry his drugs—Thompson had brought into the
house when he returned. Inside, she found powder cocaine, meth,
and empty “little dime and nickel bags.”
A bullet pierced the Pontiac’s windshield during the shoot-
ing. But when Dunton asked where her car was, Thompson
claimed it was being fixed because a tree branch fell on the wind-
shield. A few days after the double-murder, Rodriguez texted and
called to tell Thompson and Dunton that the Pontiac was fixed and
ready to be picked up. Thompson testified that Rodriguez directed
him to the body shop that repaired the damaged windshield.
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Thompson confessed to Stackhouse that Thompson ar-
ranged to meet Joseph, “went to rob him” of his “[d]ope and
money,” and shot and killed Joseph and Stevenson-Weeks.
Thompson admitted that, after the murder, he went to a carwash
“because [the car] had blood speckled on the front fender,” burned
his clothes—but not his hat, which Thompson told Stackhouse
“was on the dresser in the house when the police came and got
him,” but “they didn’t bother the hat, . . . they left it on the
dresser”—and spray-painted the car’s tire rims a different color “so
the car wouldn’t match the description.” Thompson also told
Stackhouse that one of his shots broke the Pontiac’s windshield—
so “he took it to a shop to get the window fixed”—and another hit
the car’s door; police would later find a projectile inside the door,
as well as a “projectile hole” covered with electrical tape.
PROCEDURAL HISTORY
In July 2019, a grand jury returned a twenty-count indict-
ment against Rodriguez, Churchwell, Thompson, and other code-
fendants who are not part of this appeal.
Count one charged Rodriguez, Churchwell, and Thompson
with conspiracy to conduct and to participate in the affairs of a rack-
eteering enterprise through a pattern of racketeering activity, in vi-
olation 18 U.S.C. section 1962(d). As overt acts in furtherance of
the conspiracy, count one alleged that: (1) Rodriguez, Churchwell,
and Thompson used the trap house to “maintain, manufacture,
and distribute controlled substances” and to “maintain firearms”;
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20-10373 Opinion of the Court 19
(2) Rodriguez both “conspired to commit,” and actually commit-
ted, a drive-by shooting resulting in Tellez’s murder; (3) Rodri-
guez, Churchwell, and Thompson possessed (and Thompson also
attempted to possess) with intent to distribute controlled sub-
stances; (4) Churchwell murdered Gardner; (5) Rodriguez and
Churchwell conspired to obstruct the investigation into Gardner’s
murder; and (6) Rodriguez knowingly used and carried a firearm in
furtherance of his drug trafficking crimes. Count one also gave no-
tice of a series of “Special Sentencing Factors,” alleging that: (1) Ro-
driguez killed Tellez “from a premeditated design . . . while at-
tempting to murder another human being”; (2) Churchwell killed
Gardner “from a premeditated design”; and (3) Thompson killed
Joseph and Stevenson-Weeks “from a premeditated design . . .
while perpetrating and attempting to perpetrate a robbery.”3
Count two charged Rodriguez, Churchwell, and Thompson
with conspiracy to distribute and to possess with intent to distrib-
ute a controlled substance, in violation of 21 U.S.C. sections 846
and 841(b)(1)(C).
Counts three through five charged Rodriguez with crimes
related to Tellez’s murder. In count three, Rodriguez was charged
with “conspir[acy] to murder rival gang members” in aid of racket-
eering, in violation of 18 U.S.C. section 1959(a)(5). In count four,
3 The indictment also alleged as special sentencing factors that Thompson
murdered Demetrius Robinson and Florence Randall, but the jury acquitted
Thompson of these allegations.
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20 Opinion of the Court 20-10373
he was charged with murdering Tellez in aid of racketeering, in
violation of 18 U.S.C. sections 1959(a)(1) and 2. And in count five,
Rodriguez was charged with using and discharging a firearm dur-
ing Tellez’s murder, in violation of 18 U.S.C. sections 2,
924(c)(1)(A)(iii), and 924(j)(1).
Count eight4 charged Thompson with possession of a con-
trolled substance with intent to distribute, in violation of sec-
tions 841(a)(1) and 841(b)(1)(C).
Counts nine through twelve charged Churchwell and Rodri-
guez with crimes related to Gardner’s murder. Count nine charged
Churchwell with murder in aid of racketeering, in violation of sec-
tion 1959(a)(1). Count ten charged him with using and discharging
a firearm during and in relation to (1) the drug trafficking conspir-
acy, (2) Gardner’s murder in aid of racketeering, and (3) maintain-
ing a drug distribution house, in violation of 18 U.S.C. sections
924(c), 924(c)(1)(A)(iii), and 924(j)(1). As a sentencing enhance-
ment under section 924(j)(1), count ten also alleged that Church-
well caused Gardner’s death “by murder as defined in 18 U.S.C.
[section] 1111, through the use of a firearm.” Count eleven
charged Churchwell with possession of ammunition by a felon, in
violation of 18 U.S.C. sections 922(g)(1) and 924(a)(2). And count
twelve charged Rodriguez as an accessory after the fact to Church-
well’s offenses charged in counts nine through eleven, in violation
of 18 U.S.C. section 3.
4 Counts six and seven involved coconspirators who are not part of this appeal.
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20-10373 Opinion of the Court 21
Counts thirteen through nineteen charged Thompson and
Rodriguez with crimes related to the murders of Joseph and Ste-
venson-Weeks. Count thirteen charged Thompson with attempt
to possess with intent to distribute a controlled substance, in viola-
tion of sections 841(b)(1)(C) and 846. Counts fourteen and sixteen
charged him with murdering Stevenson-Weeks and Joseph in aid
of racketeering, in violation of section 1959(a)(1). Counts fifteen
and seventeen charged Thompson with using and discharging a
firearm during and in relation to (1) the drug trafficking conspiracy,
(2) the attempt to possess and distribute a controlled substance
charged in count thirteen, and (3) Stevenson-Weeks’s and Joseph’s
murders in aid of racketeering, in violation of sections 924(c),
924(c)(1)(A)(iii), and 924(j)(1). As sentencing enhancements,
counts fifteen and seventeen also alleged that Thompson caused
Stevenson-Weeks’s and Joseph’s deaths “by murder as defined in
18 U.S.C. [section] 1111, through the use of a firearm.” Count
eighteen charged Thompson with possession of a firearm while
subject to a domestic violence restraining order, in violation of 18
U.S.C. sections 922(g)(8) and 924(a)(2). And count nineteen
charged Rodriguez as an accessory after the fact to Thompson’s of-
fenses charged in counts fourteen through eighteen, in violation of
18 U.S.C. section 3.
Finally, count twenty charged Rodriguez, Churchwell, and
Thompson with aiding and abetting each other in the maintenance
of a drug distribution house (the trap house), in violation of 18
U.S.C. section 2 and 21 U.S.C. sections 856(a)(1) and 856(b).
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22 Opinion of the Court 20-10373
Rodriguez, Churchwell, and Thompson pleaded not guilty
and proceeded to a thirteen-day jury trial in October 2019.
Deputy Taylor’s testimony about Thompson
On day four of the trial, the government called Manatee
County Sheriff’s Deputy Austin Taylor to describe his interactions
with Thompson. Before Deputy Taylor took the witness stand,
Thompson argued that his expected testimony—which Thompson
characterized as “generally” about “Thompson’s disrespect for law
enforcement”—was “excludable under [Federal Rule of Evi-
dence] 403.” The government argued that Thompson’s lack of fear
of, and “disrespect for[,] law enforcement” was probative of his
“knowledge and intent to participate in the [racketeering] conspir-
acy.” Observing that “[t]here’s a fine line between . . . marking out
your turf and screaming at the cops to protect your turf and having
some free speech rights,” the district court decided to “take it on
the fly.”
Deputy Taylor then testified that he saw Thompson with a
rifle on two occasions. The first time, Thompson fired an AK-47 at
pots and pans in a ditch near his house. The second time, Deputy
Taylor responded to a “random shooting call” and saw “Thompson
standing on his front porch with an AK-47 leaning up against [a]
couch” a few feet away from him.
Deputy Taylor told the jury that he had “numerous encoun-
ters” with Thompson after the AK-47 incidents. When the govern-
ment asked Deputy Taylor to describe Thompson’s “behavior to-
wards [him]” during these encounters, Thompson again objected
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20-10373 Opinion of the Court 23
on rule 403 grounds. The district court overruled the objection
“for now,” and Deputy Taylor said that Thompson “initially tried
to be polite” but, as the encounters progressed, Thompson’s “de-
meanor tended to become more aggressive, basically like he didn’t
want to talk to us. And it was F this, F that, I don’t need to talk to
you type of thing.” On cross-examination, Deputy Taylor couldn’t
recall Thompson ever threatening him; instead, he said, Thomp-
son “was more so just belligerently speaking, upset with the situa-
tion type of discussion.” Deputy Taylor also testified that he didn’t
arrest Thompson for any of the behavior he described.
The motions for a judgment of acquittal
After the government rested, Rodriguez, Churchwell, and
Thompson moved for judgments of acquittal.5 We discuss here
only the arguments relevant to this appeal.
Starting with Rodriguez, as to the racketeering-conspiracy
charge (count one), he argued that the government failed to estab-
lish either the existence of an agreement to engage in a pattern of
racketeering or two predicate racketeering acts. As to the drug
conspiracy charge (count two), Rodriguez argued that there was
insufficient evidence of a conspiracy because “everybody was do-
ing their own thing,” with the Third Shift members “all s[elling]
their own stuff.”
5 In addition to making their own arguments, Rodriguez and Thompson
adopted the other defendants’ challenges to the sufficiency of the evidence.
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24 Opinion of the Court 20-10373
As to the charges related to Tellez’s murder (counts three
through five), Rodriguez argued that there was no evidence he
conspired to murder anyone (the plan was “to go over there and to
have a fight”), he shot Tellez in self-defense, and Tellez’s friend
Santoyo didn’t identify him as the shooter (when shown a lineup
or in court).
As to the accessory after the fact charges (counts twelve and
nineteen), Rodriguez argued that neither his jail calls with Church-
well nor evidence that he gave Thompson “a particular ride” home
after the shooting of Joseph and Stevenson-Weeks showed that he
was an accessory. Finally, as to the charge for maintaining a drug
distribution house (count twenty), Rodriguez argued that the gov-
ernment failed to prove he “maintain[ed] a drug premises.”
Turning to Churchwell, as to the racketeering-conspiracy
charge (count one), he argued that the government failed to prove
that he was a member of a racketeering enterprise. Churchwell
also argued that the government failed to prove that he committed
a second racketeering predicate act (in addition to Gardner’s mur-
der).
As to the drug conspiracy charge (count two), Churchwell
argued that the government failed to prove that he conspired with
Rodriguez and Thompson to possess and distribute drugs or that
he was involved with them in selling drugs. As to count ten—the
charge for using a firearm in relation to counts two (the drug traf-
ficking conspiracy), nine (Gardner’s murder), and twenty (main-
taining a drug distribution house)—Churchwell conceded that the
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20-10373 Opinion of the Court 25
government could proceed with respect to the murder predicate
but disputed the sufficiency of the evidence proving counts two or
twenty. Finally, as to the charge for maintaining a drug distribu-
tion house (count twenty), Churchwell argued the evidence
showed he was only at the trap house “two or three times”—not
enough for a “prima facie case regarding aiding and abetting.”
Lastly, Thompson argued—as to the racketeering-conspir-
acy charge (count one)—that the government failed to prove the
existence of a racketeering enterprise, that Thompson was a mem-
ber of the enterprise, or that he committed any acts in furtherance
of the enterprise.
The district court denied all three defendants’ motions.
The jury instruction for count twenty—maintaining a
drug distribution house
As part of its instruction for count one—the racketeering-
conspiracy charge—the district court instructed the jury as to each
“charged [predicate] racketeering activity,” including the predicate
act of “knowingly using or maintaining a place for the purpose of
manufacturing or distributing any controlled substance.” The dis-
trict court specifically instructed the jury that,
[t]o prove that a [d]efendant or another member of
the enterprise committed this racketeering act, the
[government] must prove that the [d]efendant know-
ingly and intentionally used or maintained a place for
the purpose of manufacturing or distributing a con-
trolled substance. The [government] is not required
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26 Opinion of the Court 20-10373
to prove that the drug activity was the [d]efendant’s
primary purpose[,] only that drug activity was a sig-
nificant reason why the [d]efendant used or main-
tained the place.
The district court elsewhere instructed the jury as to “which sub-
stances are controlled substances” and as to the meaning of “know-
ingly.”
After completing its instructions for count one, the district
court “address[ed] the counts of the superseding indictment that
charge[d] crimes other than racketeering conspiracy.” “Some of
these crimes,” the district court instructed, “[we]re also charged as
racketeering acts, which I explained above.” Then, when it in-
structed the jury on count twenty—maintaining a drug distribution
house—the district court told the jury: “I also previously instructed
you that it is a federal crime for anyone knowingly to use or main-
tain any place for the purpose of manufacturing or distributing any
controlled substance.” The defendants did not object to the in-
structions for count one or count twenty.
The justifiable use of deadly force jury instruction
Rodriguez moved the district court to instruct the jury on
the justifiable use of deadly force. Rodriguez argued he was enti-
tled to the instruction based on evidence that he killed Tellez in
self-defense, including: (1) testimony that there were multiple
weapons at Tellez’s home; (2) physical evidence at the scene (like
the spent shell casings) “suggest[ing] . . . a multitude of discharges
of ammunition”; and (3) proof that Rodriguez’s blue Honda had a
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20-10373 Opinion of the Court 27
bullet hole in it after the drive-by shooting. Rodriguez proposed
an instruction based on Florida’s standard jury instruction govern-
ing the justifiable use of deadly force:
It is a defense to the crime of First Degree Premedi-
tated Murder in violation of Florida law, including
lesser-included offenses of First Degree Premeditated
Murder[,] if the actions of the accused constituted the
justifiable use of deadly force. “Deadly force” means
force likely to cause death or great bodily harm.
The use of deadly force is justifiable if the accused
reasonably believed that the force was necessary to
prevent imminent death or great bodily harm to [the]
accused while resisting:
1. another’s attempt to murder [the] accused, or
2. any attempt to commit murder upon the accused.
The government objected to Rodriguez’s proposed jury in-
struction, pointing out that Rodriguez omitted the part of Florida’s
standard instruction “that says . . . you can’t start the fight”:
If the defendant was otherwise engaged in criminal
activity, or was not in a place he or she had a right to
be, then use or threatened use of deadly force was not
justified unless he used every reasonable means
within his power consistent with his own safety to
avoid it.
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28 Opinion of the Court 20-10373
Rodriguez responded that the “duty to retreat” portion of the in-
struction didn’t apply because “he ha[d] a right to be in his car”
during the drive-by shooting.
After reviewing Florida’s standard instruction, the district
court said that it would only give the instruction if the additional
“engaged in criminal activity” language “com[es] in along with [Ro-
driguez’s requested] part.” Rodriguez decided he would rather
“forego” the instruction.
The jury’s question about the racketeering charge
During deliberations, the jury asked in a note: “Can the de-
fendant be charged guilty of murder if they are not found guilty of
racketeering? [O]r vice versa[?]” The district court interpreted the
question as asking whether a defendant could be convicted of mur-
der if he were not found guilty of racketeering.
The district court told the parties that, “[p]utting aside the
vice versa thing,” it believed the answer to the jury’s question was
no. The district court explained that, “as charged” in counts four,
nine, fourteen, and sixteen (the murder in aid of racketeering
charges),
the government must prove that the defendant under
consideration[,] for the purpose of maintaining an[d]
increasing position in the enterprise engaged in rack-
eteering activity, unlawfully and knowingly murdered
the victim under consideration. So that would inher-
ently require that the[ jury] find that there was an en-
terprise and the defendant’s participation therein.
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The government conceded that “certainly the [murders in
aid of racketeering counts] do reference the racketeering enter-
prise” but objected to the district court’s proposed answer because
the defendants had “also [been] charged [with] murder under [sec-
tion] 924(j)” in counts ten, fifteen, and seventeen. The government
explained that murder in aid of racketeering was only one of three
predicate acts charged in the section 924(j) counts, that each of
those counts also included two drug trafficking offenses as predi-
cates, and that the jury “c[ould] find one or more of those offenses
apply to find guilt on th[e section 924(j)] count.” The government
also said that the jury’s question was “ambiguous” about whether
it meant “every count that references murder” or just the murder
in aid of racketeering counts.
The district court agreed that the government had incorpo-
rated the 18 U.S.C. section 1111 enhancement into the sec-
tion 924(j) firearm counts—charging that the defendants, “in the
course of said [section 924(j)] violation[,] caused the death as mur-
der”—and the section 1111 enhancement “does not require a find-
ing of racketeering.” But the district court decided not to address
the firearms counts because, in its opinion, the jury was “asking
[the district court] about convicting [the defendants] of murder,”
not firearms charges. The district court responded to the jury’s
question by telling it:
Please consider the instructions as a whole and do not
single out one part alone. The answer to your ques-
tion is as follows:
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30 Opinion of the Court 20-10373
As to the murder in aid of racketeering counts
(counts 4, 9, 14, and 16), the government must prove
beyond a reasonable doubt that the defendant under
consideration, for the purpose of maintaining and in-
creasing position in the enterprise, an enterprise en-
gaged in racketeering activity, unlawfully and know-
ingly murdered the victim under consideration. So
on those four counts the existence of the enterprise
and the defendant’s participation in it must be proven
beyond a reasonable doubt.
Rodriguez didn’t object to the district court’s response to the
jury. But two days later, he filed a motion “adopting” the govern-
ment’s position regarding the jury question. “[I]n short,” Rodri-
guez argued, “a defendant can be found guilty of murder without
the finding of racketeering.” Then, the next day, Rodriguez with-
drew his motion to adopt the government’s position. Rodriguez
“concede[d] that the [district court’s] response to the jury’s ques-
tion [wa]s correct—although it d[id] not answer (as it should) part
two of the jury’s question as to whether a person can be guilty of
racketeering but not guilty of murder.”
The district court’s comment on Rodriguez’s counsel’s strategy
While the jury was still deliberating—after Rodriguez filed
his motion adopting the government’s position on the jury ques-
tion, but before he withdrew that motion—the district court held
a phone status conference regarding a juror’s request to be excused.
During the call, Rodriguez’s counsel said that the district
court’s “note” in response to the jury’s question about racketeering
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20-10373 Opinion of the Court 31
and murder “need[ed] to be removed” if an alternate juror was
seated. The district court said it was “not going to be removing the
note,” and then added:
And we won’t talk about it now . . . , but your strategy
on this murder thing eludes me. There is nothing
worse than judges playing lawyers because judges
don’t see the whole radar scope. I got that. I don’t
have 360 degrees of vision on this case.
But one thought is if you say, and I think you have,
that—well, you say now, you said today anyway that
you don’t need the racketeering finding for those
murder counts. Okay, that’s fine for some strategic
reason that eludes me, but if you get convicted of one
of those, are you then on appeal judicially estopped
from saying well, gee, Judge in Atlanta, appellate
panel, they never proved the racketeering. I don’t
know. Because you just basically now said, well, it’s
not needed to convict them of the murder. But I
don’t know whether—anyway.
Counsel for Thompson then said that he couldn’t “express
the level of [his] objections to [Rodriguez]’s motion that he filed in
reference to the jury note.” The district court responded:
So noted. So noted. So it’s okay. And if there were
such a judicial estoppel on appeal, it certainly
wouldn’t bind you. I don’t know if that doctrine even
exists. But it seems to me if somebody gets convicted
of murder, their best argument might be, well, there’s
a dead body but there’s no racketeering. As I said,
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32 Opinion of the Court 20-10373
there’s nothing more dangerous than judges trying to
play lawyers because we don’t have a full 360-degree
view of all the facts.
The jury’s verdict
Four days later, the jury found Rodriguez, Churchwell, and
Thompson guilty as charged, with only two exceptions. First, alt-
hough the jury found Thompson guilty in count one of a racket-
eering conspiracy, and of murdering Joseph and Stevenson-Weeks
as predicate acts, it did not find him guilty of murdering two other
victims (Robinson and Randall) as predicate acts. Second, the jury
acquitted Churchwell in count nine of murdering Gardner in aid of
racketeering—and likewise rejected count nine as a predicate (1) in
convicting Churchwell of using a firearm in furtherance of a crime
of violence in count ten and (2) in convicting Rodriguez of being
an accessory after the fact to Churchwell’s crimes in count twelve.
But the jury specifically found in count one that Churchwell mur-
dered Gardner, that Rodriguez murdered Tellez, and that Thomp-
son murdered Joseph and Stevenson-Weeks.
After the verdict, Thompson filed a renewed motion for
judgment of acquittal arguing that his racketeering-conspiracy con-
viction was legally insufficient because Brown v. United States, 942
F.3d 1069, 1075 (11th Cir. 2019) (holding that conspiracy to commit
robbery isn’t a section 924(c) “crime of violence”), and United States
v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that section 924(c)’s
residual clause is unconstitutionally vague), required that “the cat-
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20-10373 Opinion of the Court 33
egorical approach . . . be used when determining whether an of-
fense qualifies [as a ‘crime of violence’] under the [section 924(c)]
elements clause.” Thompson argued that his conviction in count
one must be vacated because it’s impossible to determine whether
the jury’s verdict “was based on a crime of violence that is uncon-
stitutionally vague under Davis or inapplicable under Brown.” The
district court denied Thompson’s renewed motion because “[i]t
[wa]s clear that [section] 924(c) was not a predicate of the [c]ount
[one] racketeering conspiracy, nor was the jury so charged.”
The district court sentenced each defendant to multiple
terms of life imprisonment, and each timely appealed.6
DISCUSSION
Rodriguez, Churchwell, and Thompson challenge the suffi-
ciency of the evidence underlying many, but not all, of their con-
victions. Thompson maintains that Deputy Taylor improperly
commented on his silence. Churchwell contends that the district
court failed to properly instruct the jury as to the charge for main-
taining a drug distribution house. And Rodriguez argues that the
district court erred in not giving his proposed justifiable use of
deadly force instruction, in responding to the jury’s question about
murder and racketeering, and in commenting on his trial counsel’s
strategy. We consider each argument below.
6 The defendants do not challenge their sentences on appeal.
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34 Opinion of the Court 20-10373
Sufficiency of the evidence
“We review de novo the denial of a motion for judgment of
acquittal, viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the
jury’s verdict.” Martin, 803 F.3d at 587 (emphasis omitted). “[T]he
issue is not whether a jury reasonably could have acquitted but
whether it reasonably could have found guilt beyond a reasonable
doubt.” United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir.
2006), abrogated on other grounds as recognized in United States v. Di-
Falco, 837 F.3d 1207, 1216 (11th Cir. 2016). “The evidence need not
be inconsistent with every reasonable hypothesis except guilt, and
the jury is free to choose between or among the reasonable conclu-
sions to be drawn from the evidence presented at trial.” United
States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). Where “any
reasonable construction of the evidence would have allowed the
jury to find the defendant guilty beyond a reasonable doubt,” we
will not overturn a jury’s verdict. United States v. Friske, 640 F.3d
1288, 1291 (11th Cir. 2011) (citation omitted).
With these principles in mind, we now address Rodriguez’s,
Churchwell’s, and Thompson’s challenges to the sufficiency of the
evidence.
Racketeering conspiracy (count one—all defendants)
It is “unlawful for any person . . . associated with any enter-
prise engaged in . . . interstate or foreign commerce[] to conduct or
participate, directly or indirectly, in the conduct of such enter-
prise’s affairs through a pattern of racketeering activity.” 18 U.S.C.
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20-10373 Opinion of the Court 35
§ 1962(c). It is likewise “unlawful for any person to conspire to vi-
olate” section 1962(c). Id. § 1962(d). “Racketeering activity” in-
cludes “any act or threat involving murder, . . . robbery, . . . or
dealing in a controlled substance . . . which is chargeable under
[s]tate law and punishable by imprisonment for more than one
year.” Id. § 1961(1)(A).
“To establish a [racketeering-]conspiracy violation under 18
U.S.C. [section] 1962(d), the government must prove that the de-
fendants ‘objectively manifested, through words or actions, an
agreement to participate in the conduct of the affairs of the enter-
prise through the commission of two or more predicate crimes.’”
United States v. Starrett, 55 F.3d 1525, 1543 (11th Cir. 1995) (quoting
United States v. Russo, 796 F.2d 1443, 1455 (11th Cir. 1986)). “The
government may prove a defendant’s agreement in two ways:
(1) by showing an agreement on an overall objective, or (2) by
showing that a defendant agreed personally to commit two predi-
cate acts and therefore to participate in a ‘single objective’ conspir-
acy.” Id. (cleaned up). “The government can prove an agreement
on an overall objective by circumstantial evidence showing that
each defendant must necessarily have known that others were also
conspiring to participate in the same enterprise through a pattern
of racketeering activity.” Id. (cleaned up). “If the government can
prove an agreement on an overall objective, it need not prove a
defendant personally agreed to commit two predicate acts.” United
States v. Abbell, 271 F.3d 1286, 1299 (11th Cir. 2001).
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36 Opinion of the Court 20-10373
“Regardless of the method used to prove the agreement, the
government does not have to establish that each conspirator ex-
plicitly agreed with every other conspirator to commit the substan-
tive [racketeering] crime described in the indictment, or knew his
fellow conspirators, or was aware of all the details of the conspir-
acy.” Starrett, 55 F.3d at 1544 (cleaned up). The government also
“need not prove that the defendants . . . participated in every aspect
of the conspiracy”; instead, it is enough to prove that the defend-
ants “knew the essential nature of the conspiracy.” United States v.
Garcia, 405 F.3d 1260, 1269–70 (11th Cir. 2005) (citation omitted).
1. Rodriguez
Rodriguez argues that the evidence was legally insufficient
to convict on count one because the government failed to establish
(1) the existence of a criminal enterprise or (2) Rodriguez’s agree-
ment to participate in a pattern of racketeering activity. He main-
tains that the evidence “[a]t best . . . established a loose affiliation
of persons that some might . . . consider a loose ‘group of thugs.’”
We disagree.
First, the government established that Third Shift was a
criminal enterprise. A racketeering “enterprise includes any union
or group of individuals associated in fact” and “a group of persons
associated together for a common purpose of engaging in a course
of conduct.” Boyle v. United States, 556 U.S. 938, 944 (2009) (quoting
United States v. Turkette, 452 U.S. 576, 580, 583 (1981)). “The gov-
ernment may prove a [racketeering] enterprise ‘by evidence of an
ongoing organization, formal or informal, and by evidence that the
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20-10373 Opinion of the Court 37
various associates function as a continuing unit.’” Starrett, 55 F.3d
at 1545 (quoting Turkette, 452 U.S. at 583).
In Boyle, the Supreme Court explained that “an association-
in-fact enterprise must have at least three structural features: a pur-
pose, relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the enter-
prise’s purpose.” 556 U.S. at 946. “[P]roof of an association’s de-
votion to ‘making money from repeated criminal activity’ demon-
strates an enterprise’s ‘common purpose of engaging in a course of
conduct,’ regardless of whether the criminal activity is diverse.”
United States v. Church, 955 F.2d 688, 698 (11th Cir. 1992) (citations
omitted).
Here, there was sufficient evidence for a reasonable jury to
conclude that Third Shift was an association-in-fact enterprise.
Cintron testified that he, Rodriguez, and other Third Shift mem-
bers spent time at the trap house “[a]lmost every day” from mid-
2015 until the end of 2016. According to Cintron, Rodriguez sold
drugs from the trap house “[e]very day,” and pole camera footage
(corroborated by Rodriguez’s neighbor’s testimony) showed lots of
people making “short-term” (less than four-minute) visits at all
hours of the day. The pole camera even captured Rodriguez deal-
ing drugs from a van parked in front of the trap house—and police
searches revealed drug paraphernalia, pills, and cash throughout
the house. Indeed, Brewer (the housekeeper) testified that “the
main thing that went on in that house” was “buying the drugs, us-
ing the drugs.” Rodriguez bragged on social media about making
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money from his crimes, using the phrases “thug life” and “G shit”
and declaring: “im out here tryna grind in each and every way,
stackin up my paper tryna avoid catching a case.” He also bragged
that he’d “been thuggin it since [he] was 14.”
Other Third Shift members participated in the drug dealing
too. Brewer told the jury that Rodriguez had “men underneath
him” selling drugs at the trap house. Cintron, Thompson, and
Churchwell all bought drugs from Rodriguez to sell, and Cintron
sold drugs on Rodriguez’s behalf a “couple times.”
Rodriguez also provided guns for Third Shift members to
use to protect the trap house—witnesses saw an AK, a mini AK, a
shotgun, several pistols, an “FN gun,” and a “little Warthog gun”—
and taught them to wipe bullets clean of their prints before loading
them. Cintron said he, Thompson, and others were permitted to
handle Rodriguez’s weapons, and pole cameras captured Thomp-
son armed while around the trap house. In fact, Brewer testified
that “whoever was in the[ trap house]” was armed.
Together, this evidence showed that Third Shift had a crim-
inal purpose, relationships among those associated with it, and suf-
ficient longevity for its members to pursue its purpose. See Boyle,
556 U.S. at 946. It also established Third Shift’s common purpose
of making money from repeated criminal activity. See Church, 955
F.2d at 698.
But that’s not all. Third Shift had its own “rules and rituals,”
which also showed that it was a racketeering enterprise. See Star-
rett, 55 F.3d at 1545 (explaining that “rules and rituals may help
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20-10373 Opinion of the Court 39
prove the existence of a group of individuals associated for a com-
mon purpose of engaging in a course of conduct”). Cintron testi-
fied that Third Shift was a “gang” that had its own color (black),
hand sign (“an A-ok sign”), song, flag (“a black bandanna”),
“friendly” gang (“North Side”), and rival gang (“South Side”) that
Third Shift was “always in altercations with.” Rodriguez was a
member of Third Shift, Cintron said, and Rodriguez and others
“rep[ped] it” by “[t]hrowing up gang signs [and] stuff like that.” All
of Third Shift’s “rituals” were further evidence of an association-in-
fact. See id.
Second, a reasonable jury could conclude that Rodriguez
agreed to participate in Third Shift’s pattern of racketeering activi-
ties—primarily, selling drugs out of the Third Shift trap house. Ro-
driguez lived at the trap house, was “in charge” of its operations,
and took steps to protect the trap house. He locked the refrigerator
(where money was kept); he retained a housekeeper to clean up
and “bring out” drug paraphernalia left behind by users; he set up
exterior security cameras connected to a video feed inside the
house; and he provided guns for Third Shift gang members to use
to guard the house. And although “[a] variety of boys” sold drugs
out of the trap house, according to Brewer, it was “[m]ostly” Ro-
driguez. Rodriguez kept drugs in a backpack in his bedroom and
sold “[a]nything that you needed”—marijuana, powder cocaine,
crack cocaine (cooked by J.R. and packaged by Rodriguez), heroin,
and pills—from the house “every day.” He sold to his sister
Maryha, to Cintron several times a week, to Couch (Rodriguez’s
brother’s friend) “[m]ore than probably like a hundred times,” and
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40 Opinion of the Court 20-10373
to Thompson’s girlfriend Dunton. Evidence of Rodriguez’s efforts
to oversee the trap house, to lead the drug trafficking business that
operated out of it, and to provide other Third Shift members with
drugs (for sale) and guns (for protection) was sufficient for a jury to
find beyond a reasonable doubt that Rodriguez agreed with Third
Shift’s purpose to make money by selling controlled substances
from the trap house. See United States v. Calderon, 127 F.3d 1314,
1326 (11th Cir. 1997) (“[T]he conclusion that appellants had a com-
mon purpose and plan with the other coconspirators may be in-
ferred from a ‘development and collocation of circumstances,’” in-
cluding “repeated presence at the scene of the drug trafficking.” (ci-
tations omitted)).
There was also sufficient evidence from which a reasonable
jury could find that Rodriguez agreed to participate in Third Shift’s
crimes of violence. Cintron testified that Rodriguez taught him to
wipe his fingerprints off shell casings to avoid getting caught. And
Rodriguez planned and participated in Third Shift’s retaliatory
drive-by shooting of rival gang member Julio Tellez. After plan-
ning the crime and giving Cintron bullets, Rodriguez drove one of
the two cars and “finish[ed] the job” by shooting Tellez while yell-
ing “Fuck South Side.”
In short, there was more than enough evidence for a reason-
able jury to conclude that Third Shift was a criminal enterprise and
that Rodriguez conspired to participate in Third Shift’s racketeer-
ing activities. The district court didn’t err in denying his motion
for a judgment of acquittal as to count one.
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2. Churchwell
Churchwell argues that the evidence supporting his convic-
tion on count one was legally insufficient because the government
failed to prove that he agreed to participate in a racketeering con-
spiracy. And, he contends, the government failed to prove two
predicate racketeering acts because the government didn’t present
evidence that Gardner’s murder was premeditated.
As to Churchwell’s first argument, a reasonable jury could
find that he agreed to participate in a racketeering conspiracy.
Again, the government can establish a defendant’s agreement by
showing that he “agreed personally to commit two predicate acts
and therefore to participate in a ‘single objective’ conspiracy.” Star-
rett, 55 F.3d at 1544 (citation omitted). That’s the case here—the
evidence showed that Churchwell agreed to commit at least two
of the predicate acts charged in count one of the indictment.
First, count one’s list of predicate acts included Churchwell’s
“possess[ion] with intent to distribute controlled substances.” Suf-
ficient evidence supported a jury finding that Churchwell commit-
ted this predicate act. Both Cintron and Couch saw Churchwell
repeatedly at the trap house, and Churchwell’s “repeated presence”
at the trap house was “a material and probative factor that the jury
[could] consider in reaching its verdict.” See Calderon, 127 F.3d at
1326; see also United States v. Hernandez, 433 F.3d 1328, 1333 (11th
Cir. 2005) (“Although mere presence at the scene of a crime is in-
sufficient to support a conspiracy conviction, presence nonetheless
is a probative factor which the jury may consider in determining
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42 Opinion of the Court 20-10373
whether a defendant was a knowing and intentional participant in
a criminal scheme.” (citation omitted)).
But Churchwell wasn’t just a repeat presence at the trap
house; he sold crack and heroin there that he purchased from Ro-
driguez. Proof that Rodriguez sold drugs to Churchwell—and,
more importantly, that he permitted Churchwell to sell those
drugs out of the trap house—“rebuts [Churchwell’s] argument”
that he merely possessed drugs with the intent to distribute at the
trap house without joining Third Shift’s racketeering conspiracy.
See United States v. Dixon, 901 F.3d 1322, 1337 (11th Cir. 2018) (ex-
plaining, in a drug trafficking conspiracy case, that “[t]he evidence
of frequent, coordinated drug sales rebuts each defendant’s argu-
ment that he merely ‘decided to sell drugs by himself, for his own
account, in front of the same areas where some of the people he
knew were also selling’”). As in Dixon, a jury could find beyond a
reasonable doubt that Churchwell agreed with Rodriguez to pos-
sess with intent to distribute controlled substances. See id. And
because Churchwell sold drugs from the trap house a couple of
days one week, Churchwell agreed to possess with intent to distrib-
ute controlled substances at least two times. Thus, a reasonable
jury could find beyond a reasonable doubt that Churchwell
(1) agreed to Third Shift’s “overall objective,” and (2) agreed to per-
sonally commit two predicate acts of possession with intent to dis-
tribute controlled substances to participate in a “single objective”
conspiracy. See Starrett, 55 F.3d at 1544.
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Second, count one’s list of predicate acts included Church-
well’s use of the trap house “to acquire, maintain, manufacture,
and distribute controlled substances, maintain firearms, facilitate
prostitution, and conduct [e]nterprise meetings.” There was suffi-
cient evidence to support a jury finding that Churchwell commit-
ted this predicate act too. As we discussed above, the evidence
showed that Churchwell bought drugs from Rodriguez for the pur-
pose of selling those drugs out of the trap house. The evidence also
showed that Rodriguez supplied guns at the trap house, and that
Churchwell carried one of Rodriguez’s revolvers there. This was
sufficient to support a jury finding that Churchwell “maintained”
the trap house. See United States v. Clavis, 956 F.2d 1079, 1091 (11th
Cir.) (concluding that evidence that defendant distributed drugs
from a stash house, coupled with “[h]is possession of a firearm, plus
presence of firearms in the house and his discussion of firearms
with [a government informer], permitted the jury to infer that he
was protecting the stash house and its inventory”), modified on other
grounds on reh’g, 977 F.3d 538 (11th Cir. 1992).
And third, count one listed as a predicate act Churchwell’s
conspiracy with Rodriguez to “obstruct the investigation into the
murder of Earnestine Gardner by . . . threatening and causing oth-
ers to threaten witnesses, destroying evidence, and providing false
and incomplete information to law enforcement.” There was suf-
ficient evidence to support a jury finding that Churchwell commit-
ted this predicate act. After Churchwell was arrested for Gardner’s
murder, Churchwell called Rodriguez several times from jail.
Based on the November 2016 conversation, a reasonable jury could
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44 Opinion of the Court 20-10373
find that Churchwell conspired with Rodriguez to threaten wit-
nesses. Churchwell asked Rodriguez to figure out who was at the
trap house on the day of the murder so his “private investigator”
could talk to them, “verify” Churchwell wasn’t there, and “get eve-
rybody . . . [r]ounded up. . . . Boom, boom, boom, you know what
I’m saying?” Rodriguez promised to figure out who was at the
house. And during the January 2017 conversation, Churchwell
asked Rodriguez whether he “got rid of [Churchwell’s] three-
wheeler, you feel me, that three-wheeler.” Rodriguez assured
Churchwell that it was “gone.” A jury could reasonably infer that
Churchwell was asking if Rodriguez got rid of the gun that he used
to kill Gardner.
Turning to Churchwell’s second argument—that the district
court should’ve granted his motion for judgment of acquittal as to
count one because the government didn’t present evidence that
Gardner’s murder was premeditated—it fails for two reasons.
First, even if the district court erred by submitting Gardner’s
murder to the jury as a possible racketeering predicate, Churchwell
invited the error. “The doctrine of invited error is implicated when
a party induces or invites the district court into making an error.”
United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998). And when
the doctrine applies, “we are precluded from addressing [the in-
vited] error[].” Id. Here, Churchwell conceded to the district court
that the government “presented enough evidence to get past a
[r]ule 29 [motion]” with respect to Gardner’s murder as a racket-
eering predicate. In other words, he told the district court that
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20-10373 Opinion of the Court 45
there was sufficient evidence of premeditation. That is invited er-
ror and “we are precluded from addressing” it on appeal. Id. (“[A]
defendant should not benefit from introducing error at trial with
the intention of creating grounds for reversal on appeal.”).
Second, even taking Gardner’s murder out of the equation,
the government still proved that Churchwell committed at least
two predicate acts. As we discussed above, sufficient evidence es-
tablished that Churchwell possessed “with intent to distribute con-
trolled substances” on multiple occasions, used the trap house “to
acquire, maintain, manufacture, and distribute controlled sub-
stances, maintain firearms, facilitate prostitution, and conduct
[e]nterprise meetings,” and conspired with Rodriguez to obstruct
the investigation into Gardner’s murder. That, in turn, was
enough to infer his agreement. See Starrett, 55 F.3d at 1543.
In sum, because a reasonable jury could conclude that
Churchwell “agreed personally” to commit (at least) two predicate
acts, sufficient evidence established his agreement to participate in
Third Shift’s racketeering conspiracy. See id. at 1544.
3. Thompson
Thompson argues that his racketeering-conspiracy convic-
tion on count one was legally insufficient for the same reason he
raised in his post-verdict renewed motion for judgment of acquit-
tal. Specifically, Thompson cites the Supreme Court’s holding in
Davis that section 924(c)’s residual clause is unconstitutionally
vague—plus our holdings in Brown and United States v. Green, 981
F.3d 945, 950 (11th Cir. 2020), that neither Hobbs Act robbery nor
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46 Opinion of the Court 20-10373
racketeering conspiracy are section 924(c) crimes of violence—as
“preclud[ing] the conviction obtained on [c]ount [one] because the
categorical approach must be used when determining whether an
offense qualifies under the elements clause.” As he argued in his
post-verdict motion, Thompson argues on appeal that his racket-
eering-conspiracy conviction must be vacated because of “the pos-
sibility that the jury’s verdict was based on a crime of violence that
is unconstitutionally vague under Davis.”
Thompson’s argument is unavailing. Although he was con-
victed of section 924(c) offenses in counts fifteen and seventeen, on
appeal, he only challenges the sufficiency of the evidence support-
ing his conviction on count one. But count one was a section
1962(d) racketeering-conspiracy count—not a section 924(c) fire-
arm count. There is nothing vague about the racketeering-conspir-
acy statute, and Davis, Brown, and Green had nothing to do with
section 1962(d). We agree with the district court that Thompson’s
argument fails.
Drug conspiracy (count two—Rodriguez and Churchwell)
Rodriguez and Churchwell challenge the sufficiency of their
convictions for conspiracy to distribute and to possess with intent
to distribute a controlled substance, in violation of sections 846
and 841(b)(1)(C). Section 841(b)(1)(C) prohibits possessing with
the intent to distribute a controlled substance, and section 846 pro-
hibits conspiring to do so. “To support a conspiracy conviction un-
der [section] 846, the government must prove that there is an
agreement by two or more persons to violate the narcotics laws.”
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20-10373 Opinion of the Court 47
United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir. 1990). The
elements of a section 846 conspiracy are: “(1) an agreement be-
tween the defendant and one or more persons, (2) the object of
which is to do either an unlawful act or a lawful act by unlawful
means.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998).
1. Rodriguez
Rodriguez argues that there was insufficient evidence that
he agreed with Churchwell or Thompson, or anyone else, to pos-
sess and distribute controlled substances. No one disputes that Ro-
driguez and other Third Shift members possessed and sold drugs.
Rodriguez doesn’t contest that he sold drugs and concedes that
Churchwell and Thompson “had their own drug-dealing operation
going, with multiple sources of supply, and multiple distribution
points.” The narrow question for us is whether a reasonable jury
could find that Rodriguez had an agreement with the others to pos-
sess and sell drugs.7
A reasonable jury could make that finding because the gov-
ernment presented sufficient evidence of an agreement between
Rodriguez and other Third Shift members to possess and sell drugs.
Rodriguez, Churchwell, Thompson, and Cintron all regularly sold
drugs from the trap house. Rodriguez also supplied weapons for
7
Rodriguez also raises the same arguments he made to challenge the suffi-
ciency of the evidence supporting his racketeering-conspiracy conviction. Be-
cause we already rejected those arguments in affirming his conviction on
count one, we won’t address them again here.
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48 Opinion of the Court 20-10373
Churchwell, Thompson, Cintron, and other Third Shift members
to use to defend the trap house, as well as surveillance cameras for
additional protection. From the evidence, a reasonable jury could
infer an “overlap of participants” (Rodriguez and the other Third
Shift members) and that they “had a common goal: to deal in [con-
trolled substances] and to provide a marketplace for [controlled
substances].” See Dixon, 901 F.3d at 1336 (citation omitted); id. at
1337 (observing that “evidence of frequent, coordinated drug sales
rebuts” any argument that each defendant was selling by himself,
for himself, in the same place as other defendants).
Critically, Rodriguez provided not only a place where his as-
sociates could sell drugs—the trap house—but also many of the
drugs that other Third Shift members sold. At the trap house,
Churchwell sold drugs that he bought from Rodriguez. Thompson
likewise obtained from Rodriguez some of the drugs that he sold.
And Cintron both sold drugs he’d bought from Rodriguez—with
Rodriguez’s knowledge and without needing to ask permission—
and sold on Rodriguez’s behalf a “couple times.” The fact that
other Third Shift members sold drugs provided to them by Rodri-
guez is proof that Rodriguez had an agreement with them to pos-
sess and distribute drugs. See Toler, 144 F.3d at 1426.
2. Churchwell
Churchwell argues that there was no evidence of an agree-
ment to distribute controlled substances, no evidence that Church-
well knew of the unlawful purpose of the plan, and no evidence
that he willfully joined the plan.
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20-10373 Opinion of the Court 49
A reasonable jury could find that Churchwell willfully
agreed to sell drugs with other Third Shift members. Cintron was
at the trap house “[a]lmost every day” and saw Churchwell there
several times. Other witnesses confirmed Churchwell’s presence
at the trap house. Once again, Churchwell’s regular presence at
Third Shift’s trap house is evidence of whether he “was a knowing
and intentional participant in [the] criminal scheme.” See Hernan-
dez, 433 F.3d at 1333 (citation omitted).
And the evidence showed that Churchwell wasn’t an inno-
cent bystander merely present at the trap house. Cintron testified
that Churchwell “would hang out and try to sell drugs”—crack and
heroin—while there. Indeed, Churchwell murdered Gardner at
the trap house after she complained about being shorted change
when Churchwell sold her cocaine. The jury also saw evidence
that Churchwell arranged sales of heroin and molly through text
messaging, and they heard testimony that multiple baggies con-
taining heroin were confiscated from him during his September
2016 arrest. And although Churchwell sometimes brought his own
drugs to the trap house to sell, other times he’d buy the drugs he
sold from Rodriguez. The fact that Churchwell routinely sold
drugs provided to him by Rodriguez at Rodriguez’s trap house al-
lowed the reasonable inference that he had willfully entered into
an agreement with Rodriguez to possess and sell drugs. See Dixon,
901 F.3d at 1336–37.
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Violent crimes in aid of racketeering
(counts three and four—Rodriguez)
The jury found that Rodriguez committed two violent
crimes in aid of racketeering under section 1959(a): conspiring to
murder rival gang members (count three), and actually murdering
Tellez (count four). Rodriguez argues there was insufficient evi-
dence to convict on either count, contending that the government
didn’t prove (1) that he knowingly conspired to murder rival gang
members to maintain and increase his position in a racketeering
enterprise, and (2) that Tellez was a rival gang member. But we
conclude that a reasonable jury could find that Rodriguez con-
spired to murder, and actually murdered, in aid of racketeering.8
Section 1959(a) provides that “[w]hoever . . . for the purpose
of gaining entrance to or maintaining or increasing position in an
enterprise engaged in racketeering activity, murders . . . any indi-
vidual in violation of the laws of any State or the United States, or
attempts or conspires so to do, shall be punished . . . by death or
life imprisonment.” 18 U.S.C. § 1959(a)(1). “A person commits a
violent crime in aid of racketeering” under section 1959(a) “when
he commits,” or conspires to commit, “a particular kind of violent
crime—such as ‘murder’—‘for the purpose of gaining entrance to
or maintaining or increasing position in an enterprise engaged in
racketeering activity.’” Alvarado-Linares v. United States, 44 F.4th
8 In addition, Rodriguez repeats the same arguments challenging his count-
one conviction for a racketeering conspiracy that we have already rejected.
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1334, 1339 (11th Cir. 2022) (quoting 18 U.S.C. § 1959(a)); see also
United States v. McClaren, 13 F.4th 386, 403 (5th Cir. 2021) (the gov-
ernment must prove that (1) “a criminal organization exist[ed],” (2)
the “organization [wa]s a racketeering enterprise,” and (3) “the de-
fendant committed a violent crime” (4) “for the purpose of promot-
ing his position in [the] racketeering enterprise” (citation omitted)).
Sufficient evidence showed Rodriguez knowingly conspired
to murder rival gang members—specifically, the South Side gang
members at Tellez’s house. After Cintron and Uscanga chased the
South Side members back to Tellez’s house from the corner store,
Cintron retrieved a gun, then drove to the trap house, told Rodri-
guez and Macho about the corner store fight, and got ammunition
from Rodriguez. At the trap house, Rodriguez helped plan the fatal
attack: Cintron, Rodriguez, and other Third Shift members de-
cided to use two cars, with Cintron in the first car acting as a lure
to “bring [the South Side gang members] out” and Rodriguez in the
second car to “finish the job” (“mean[ing] whoever came out[ of
Tellez’s house, Rodriguez] was going to start shooting at”). He
then helped carry out the plan, knowing that the goal was to kill
South Side members—when the men attacked Tellez, Santoyo,
and Montoya, Rodriguez shouted “Fuck South Side.” And Rodri-
guez doesn’t dispute that he actually murdered Tellez during the
attack.
Sufficient evidence also showed that Rodriguez’s motive for
conspiring to murder South Side members and murdering Tellez
was to “maintain[] or increas[e his] position in” Third Shift. See
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Alvarado-Linares, 44 F.4th at 1339 (quoting 18 U.S.C. § 1959(a)).
“The government can establish the motive element” in section
1959(a) “with evidence that the defendant committed the violent
crime because he knew it was expected of him by reason of his
membership in the gang or that he committed the violent crime in
furtherance of that membership.” Dixon, 901 F.3d at 1342–43
(cleaned up). “[E]vidence that ‘violence was a part of the group’s
culture,’ ‘that the group expected its members to . . . engag[e] in
violent acts,’ or that the defendant reported his actions to prove
himself or ‘to brag’ supports the inference that the defendant ‘was
motivated’ by his membership.” Id. at 1343 (citations omitted).
“What matters is whether the [evidence] supports the inference
that [the defendant], at the time of the murder[], was motivated to
kill others in order to bolster his credibility as a member of the
group.” United States v. Robertson, 736 F.3d 1317, 1331 (11th Cir.
2013).
Here, Rodriguez bragged to Cintron that he said “Fuck
South Side” as he shot Tellez. And eight days after the murder,
Rodriguez posted on social media that
I play this game well I feel like its monopoly, except
I’m grinding hard I don’t see nothing stopping me,
tossin out that money like I’m some kind of slot ma-
chine, keep ya eyes to yaself before u hear that choppa
scream, 100 round drum and its fully loaded, take me as a
joke but ima shoot it if I tote it.
A few days later, Rodriguez updated his status: “It’s time to leave
state cause [n-words] is gna make me go Rambo dog g shit.” Then,
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20-10373 Opinion of the Court 53
after a friend told Rodriguez that someone had “snitched” on him,
Rodriguez replied that he hated people “who act gangsta but they
wna talk to police when gangsta shit goes down.” This reply fol-
lowed a status update earlier the same day challenging people who
“think they hard but wna talk to the police and snitch”: “I stay on
11th street come my way with that p**** shit dog I know real crips
that’ll check yaw ass.” And that wasn’t the only time Rodriguez
publicly challenged a snitch; he also posted a status update declar-
ing: “Facebook gangster right here [n-word] my adress is 5832 11th
street east came fade”—meaning “come fight”—“if u want it [n-
word] aint nobody scared [n-word] but believe me if u pull a gun
im killing yo ass [n-word], fuck talking run up.”
Rodriguez’s boast to Cintron that he yelled “Fuck South
Side” during the attack, his social media posts bragging shortly after
the attack—that he was “play[ing] th[e] game,” ready to “shoot” his
“choppa,” and about to “go Rambo dog g shit”—and his exaspera-
tion with people who only wanted to “act gangsta” allowed a rea-
sonable jury to find that Rodriguez’s motive was to bolster his
standing or credibility with Third Shift. See Dixon, 901 F.3d at 1342–
43; Robertson, 736 F.3d at 1331.
Rodriguez argues that the evidence was insufficient because
the government didn’t prove Tellez was actually a rival gang mem-
ber. But this argument fails—the government didn’t have to prove
Tellez was a rival gang member to show Rodriguez violated sec-
tion 1959(a). Section 1959(a) prohibits “murder[ing],” or
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54 Opinion of the Court 20-10373
“conspir[ing]” to murder, “any individual” to promote one’s posi-
tion in a racketeering enterprise. 18 U.S.C. § 1959(a) (emphasis
added). There was sufficient evidence here that Rodriguez con-
spired to murder South Side members and actually murdered
Tellez—all to promote his position in Third Shift.
Use of a firearm during and in relation to a
crime of violence (count five—Rodriguez)
On count five, the jury found that Rodriguez violated sec-
tion 924(c)(1)(A) by using a firearm during and in relation to a
crime of violence—the murder of Tellez as charged in count four.
Rodriguez repeats the same argument he made for the other
counts—that no reasonable jury could find he acted for the purpose
of maintaining or increasing his position in an enterprise. That ar-
gument fails for the same reasons we’ve already discussed.
Use of a firearm during and in relation to drug trafficking crimes
and a crime of violence (count ten—Churchwell)
Count ten alleged that Churchwell violated sec-
tion 924(c)(1)(A) by using a firearm during and in relation to the
drug trafficking conspiracy alleged in count two, maintaining a
drug distribution house as alleged in count twenty, and murdering
Gardner in aid of racketeering as alleged in count nine. The jury
declined to find that Churchwell used a firearm to murder Gardner
in aid of racketeering. But it still found him guilty on count ten,
finding that he used a firearm during and in relation to the drug
trafficking conspiracy and maintaining the trap house—and that he
caused Gardner’s death in the process. Churchwell argues that
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there was insufficient evidence that he committed either of the two
predicate crimes. And he contends there was no evidence he used
a firearm during and in relation to those crimes.
As we explained above, the evidence was sufficient to con-
vict Churchwell of conspiring to possess and sell drugs. And, as we
explain later as to count twenty, the evidence was also sufficient to
convict Churchwell of maintaining a drug distribution house.
Thus, the only remaining question is whether a reasonable jury
could find that Churchwell used a firearm during and in relation to
the drug crimes alleged in counts two and twenty.
There was. Rodriguez always kept weapons in the trap
house for other Third Shift members, like Churchwell, to “pick up”
and “hold” to “protect [the] house.” The housekeeper, Brewer,
testified that “whoever was in the[ trap house] usually had [Rodri-
guez’s] guns on them,” and witnesses saw Churchwell armed with
Rodriguez’s revolver the morning that he murdered Gardner at the
trap house.
The “in relation to” element requires that the firearm “at
least . . . facilitate, or have the potential of facilitating, the drug traf-
ficking offense.” Smith v. United States, 508 U.S. 223, 237–38 (1993)
(cleaned up) (explaining that “in relation to” is “expansive”). Here,
a reasonable jury could find that Churchwell’s use of a firearm at
least “facilitate[d]” or had “the potential of facilitating” the drug
crimes. Id. Again, Rodriguez provided Third Shift members like
Churchwell with guns to “protect [the] house,” and Cintron saw
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Churchwell selling crack and heroin there. Cf. United States v. No-
vaton, 271 F.3d 968, 1013 (11th Cir. 2001) (reasoning that defend-
ant’s use of weapon to protect drug distribution duplex was “in re-
lation to” drug trafficking); United States v. Young, 131 F.3d 1437,
1439 (11th Cir. 1997) (reasoning that loaded guns’ “close proximity
to the drugs” supported a “relation to” drug trafficking). And just
before Churchwell shot Gardner, he told Brewer he’d been arguing
with Gardner about a drug sale. This evidence supports that
Churchwell’s use of the gun at a drug distribution house was not
merely “the result of accident or coincidence.” Smith, 508 U.S. at
238.
Accessory after the fact (count twelve—Rodriguez)
On count twelve, the jury found that Rodriguez was an ac-
cessory after the fact to Churchwell’s (1) use of a firearm in further-
ance of drug trafficking crimes and a crime of violence (count ten)
and (2) possession of ammunition by a felon (count eleven).9 Ro-
driguez argues that there was no evidence he knew that Church-
well committed these offenses. Rodriguez also argues there was
insufficient evidence that he “assisted Churchwell in order to hin-
der or prevent [his] apprehension.” He contends that he “did not
assist Churchwell in fleeing” and emphasizes that Churchwell was
already in jail during the recorded calls.
9 Count twelve also charged Rodriguez with being an accessory to Gardner’s
murder in aid of racketeering (count nine), but the jury found that the govern-
ment didn’t prove this predicate.
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The accessory statute provides that “[w]hoever, knowing
that an offense against the United States has been committed, re-
ceives, relieves, comforts[,] or assists the offender in order to hinder
or prevent his apprehension, trial[,] or punishment, is an accessory
after the fact.” 18 U.S.C. § 3. To establish a section 3 violation, the
government had to prove that Rodriguez knew that Churchwell
committed a federal offense and, “with such knowledge[,] . . . ren-
dered assistance in order to hinder or prevent [Churchwell’s] ap-
prehension, trial[,] or punishment.” See United States v. Norton, 464
F.2d 85, 86 (5th Cir. 1972).
A reasonable jury could find Rodriguez knowingly assisted
Churchwell’s use of a firearm in furtherance of drug trafficking
crimes and a crime of violence (count ten). On the first element—
knowledge—there was evidence that Rodriguez knew about
Churchwell’s illegal use of a firearm in furtherance of the drug traf-
ficking crimes. Churchwell was repeatedly at the trap house and
sold drugs there; indeed, Churchwell got some of the drugs he sold
from Rodriguez. And Rodriguez kept guns at the trap house for
Third Shift members—like Churchwell—to handle and carry to
protect the house. Earlier in the morning of the day that he mur-
dered Gardner, Churchwell had Rodriguez’s revolver.
Rodriguez also knew Churchwell used a firearm to kill Gard-
ner over a drug-related dispute at the trap house. Rodriguez was
initially asleep when Gardner arrived, but Brewer sent someone to
wake him up to “diffuse[]” the situation. Rodriguez then went out-
side in front of the trap house. And while Rodriguez was standing
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outside, Churchwell shot Gardner as she walked outside the trap
house through the front door.
As for the second element, there was sufficient evidence Ro-
driguez “rendered assistance in order to hinder or prevent [Church-
well’s] apprehension, trial[,] or punishment” for Churchwell’s drug
crimes and murder. See Norton, 464 F.2d at 86. After Churchwell
murdered Gardner, Rodriguez lied to investigators that he’d awak-
ened to the sound of gunshots outside his house but didn’t know
who the victim was and hadn’t seen the shooter. Then, when the
police later interviewed Rodriguez about the murder, Rodriguez
lied that he didn’t know Churchwell—even though he and Church-
well had exchanged nineteen calls and several texts on the day of
Gardner’s murder. A reasonable jury could conclude that Rodri-
guez told these lies to assist Churchwell and hinder or prevent his
apprehension. See id. at 85–86 (affirming defendant’s conviction as
accessory after the fact to bank robbery where the defendant “lied
to FBI agents as to the whereabouts of the robbers”).
Also, following Churchwell’s arrest, Rodriguez assured
Churchwell that his security-camera DVR “ain’t have nothing” on
it and promised he’d figure out who was at the trap house the day
of Gardner’s murder so that Churchwell’s private investigator
could “verify” that Churchwell wasn’t there, “plain and simple.”
When Churchwell praised Rodriguez for “show[ing] up for real”—
telling Rodriguez that Churchwell was “ride or die about [him]
now”—Rodriguez explained his motive for helping Churchwell.
Rodriguez said “[he] be wanting [Churchwell] to get the fuck up
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outta there.” Indeed, in a later call, Rodriguez assured Churchwell
that he had taken care of the “three-wheeler”—which, as we’ve al-
ready explained, a reasonable jury could infer meant the gun
Churchwell had used to kill Gardner. Rodriguez’s promise to track
down witnesses to provide false testimony about Churchwell’s
whereabouts, Rodriguez’s statement that he “be wanting” to get
Churchwell “the fuck up outta there,” and evidence that Rodriguez
disposed of the murder weapon, was sufficient evidence that he
tried to hinder or prevent Churchwell’s trial or punishment. See
United States v. Bell, 819 F.3d 310, 323 (7th Cir. 2016) (affirming con-
viction as accessory after the fact to murder where the defendant
tried to dispose of the murder weapon and “made inconsistent and
demonstrably false statements to investigators”).
A reasonable jury could separately find Rodriguez was an
accessory after the fact to Churchwell’s possession of ammunition
as a felon (count eleven). There was evidence that Rodriguez knew
about Churchwell’s prohibited status. After Churchwell’s arrest,
Rodriguez said, in a recorded jail call, that law enforcement sus-
pected Churchwell of Gardner’s murder because Churchwell “al-
ready got a previous charge.” Rodriguez also knew Churchwell
possessed ammunition—again, Rodriguez kept guns at the house
for Third Shift members to protect the trap house and he was at
the house when Churchwell shot Gardner. And there was evi-
dence that Rodriguez taught Third Shift members how to wipe
bullets clean of their prints before loading them.
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Rodriguez argues that he wasn’t an accessory after the fact
to either of Churchwell’s crimes because Churchwell was already
apprehended when the jail calls were made. This argument fails
for two reasons.
First, Rodriguez falsely told the police prior to Churchwell’s
arrest that he didn’t see who shot Gardner. These statements—
made before Churchwell’s apprehension—were made to hinder or
prevent apprehension.
Second, Rodriguez’s reading of the accessory after the fact
statute is too cramped. Section 3 doesn’t just prohibit assisting an
offender to hinder or prevent an apprehension; it also prohibits as-
sisting an offender to hinder or prevent “trial or punishment.” 18
U.S.C. § 3. In helping Churchwell locate witnesses who could pro-
vide false testimony about his whereabouts and disposing of the
murder weapon, Rodriguez assisted Churchwell and hindered his
trial and punishment. Because this assistance made Rodriguez an
accessory after the fact to Churchwell’s crimes, we affirm his con-
viction in count twelve.
Accessory after the fact (count nineteen—Rodriguez)
On count nineteen, the jury found that Rodriguez was an
accessory after the fact to Thompson’s murders of Joseph and Ste-
venson-Weeks in aid of racketeering (charged in counts fourteen
and sixteen). Rodriguez argues that no reasonable juror could have
found that he knew that Thompson had committed murder in aid
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20-10373 Opinion of the Court 61
of racketeering.10 We conclude that the evidence was legally suffi-
cient.
Rodriguez doesn’t contest that Thompson murdered Joseph
and Stevenson-Weeks, that the murders were in furtherance of
racketeering, or that he aided Thompson to avoid his apprehension
for these murders. He only challenges his knowledge of Thomp-
son’s crime. But for two reasons, a reasonable jury could find be-
yond a reasonable doubt that, in assisting Thompson, Rodriguez
knew both that Thompson had murdered Joseph and Stevenson-
Weeks and that he’d done so in aid of racketeering.
First, sufficient evidence established that Rodriguez knew
Thompson had committed the murders when he helped Thomp-
son conceal the crime. Thompson and Rodriguez spoke by phone
eight times (and a ninth by text) that day, beginning within an hour
of the murders. Rodriguez also drove Thompson back to Thomp-
son’s house shortly after the murders.
Also, Thompson told Stackhouse (another neighborhood
drug dealer) that Dunton’s car’s window was pierced by a bullet
during the shooting, so he “took it to a shop to get the window
fixed.” Indeed, street camera footage taken a few minutes after the
10
Rodriguez also argues that no reasonable jury could have convicted him of
aiding Thompson’s use of a firearm in furtherance of a drug trafficking crime
and a crime of violence, or his possession of a firearm in violation of a domestic
violence restraining order. But the jury specifically found that Rodriguez was
guilty in count nineteen only for aiding Thompson’s murders of Joseph and
Stevenson-Weeks.
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62 Opinion of the Court 20-10373
murders showed a bullet hole in the Pontiac’s windshield that
wasn’t there before the shootings. Thompson testified that Rodri-
guez told him where to get the windshield repaired. A few days
after the murders, when the windshield was fixed, Rodriguez called
and texted Thompson and Dunton to let them know the car was
ready to be picked up. A reasonable jury could conclude from this
evidence that Rodriguez knew about the bullet hole (and therefore
the murders) and played a role in repairing the bullet hole to help
Thompson avoid arrest for the murders.
Second, a reasonable jury could conclude beyond a reason-
able doubt that Rodriguez knew Thompson had committed the
murders in aid of racketeering. Rodriguez knew that Thompson—
Rodriguez’s childhood “best friend[]” and “little do-boy,” who Ro-
driguez “took care of . . . a lot”—was part of Third Shift’s conspir-
acy to sell drugs and commit violent crimes. As a member of Third
Shift, Thompson would “throw up the gang sign” and wear Third
Shift’s black bandanna “flag.” Thompson was at the trap house
about once a week, and he handled Rodriguez’s assault weapons
while there.
Rodriguez’s knowledge of Thompson’s involvement in
Third Shift is key. In addition to selling drugs, murdering people
to protect the trap house, and murdering rival gang members,
Third Shift’s criminal activity included theft. Cintron testified that
Third Shift members “regularly committed thefts”—including the
robbery of a TV, cash, and a pistol, after which Rodriguez “threat-
ened to slap the shit out of” Cintron’s sister for calling the police.
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Both Maryha—Rodriguez’s sister and Thompson’s ex-girlfriend—
and Dunton recalled Thompson bragging about committing rob-
beries. And a police officer testified to seeing Thompson steal a
bike.
Because Rodriguez knew that Thompson was a member of
Third Shift, and that Third Shift members committed robberies as
part of their criminal activities, a jury could reasonably infer that
Rodriguez knew that Thompson had murdered Joseph and Steven-
son-Weeks to steal Joseph’s drugs—in other words, in furtherance
of the racketeering enterprise. Thompson told Stackhouse that he
went to see Joseph to rob him and came away from the murders
with “dope and money.” The government elicited evidence that
Joseph kept his drugs in a small black shaving kit. And when
Thompson returned home from murdering Joseph and Stevenson-
Weeks, he was carrying a dark-colored “men’s toiletry bag or razor
bag” that contained powder cocaine, meth, and small baggies. A
reasonable jury could infer that Rodriguez knew about the drugs
Thompson stole from Joseph because of their friendship, because
of Rodriguez’s knowledge of other robberies committed by Third
Shift members, because of their multiple conversations after the
murder, and—mostly importantly—because Thompson would’ve
had Joseph’s toiletry bag, containing Joseph’s drugs, in his posses-
sion when Rodriguez drove him home after the murders.
In sum, a reasonable jury could infer that Rodriguez knew
that Thompson had murdered Joseph and Stevenson-Weeks in aid
of Third Shift’s drug distribution, theft, and violent-crime activities.
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Because sufficient evidence established that Rodriguez was an ac-
cessory after the fact to Thompson’s murder of Joseph and Steven-
son-Weeks in aid of racketeering, we have no basis to disturb his
conviction in count nineteen.
Maintaining a drug distribution house (count
twenty—Rodriguez and Churchwell)
On the final count—count twenty—the jury found that Ro-
driguez and Churchwell aided and abetted the use and mainte-
nance of a place for the purpose of manufacturing and distributing
controlled substances, in violation of 18 U.S.C. section 2 and
21 U.S.C. sections 856(a)(1) and 856(b). Section 856(a)(1) makes it
unlawful to “knowingly open, lease, rent, use, or maintain any
place, whether permanently or temporarily, for the purpose of
manufacturing, distributing, or using any controlled substance.”
21 U.S.C. § 856(a)(1).
A section 856(a)(1) prosecution requires the government to
prove “that the defendant (1) knowingly, (2) operated or main-
tained a place, (3) for the purpose of manufacturing, distributing,
or using any controlled substance.” Clavis, 956 F.2d at 1090. “Acts
evidencing such matters as control, duration, acquisition of the site,
renting or furnishing the site, repairing the site, supervising, pro-
tecting, supplying food to those at the site, and continuity are . . .
evidence of knowingly maintaining the place[,] considered alone or
in combination with evidence of distributing [controlled sub-
stances] from that place.” Id. at 1091.
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1. Rodriguez
Rodriguez argues that the trap house was maintained by an-
other drug dealer—J.R.—and by Brewer at the direction of J.R., ra-
ther than by him. He contends that the government’s theory that
he maintained the trap house “for J.R.” was outside the scope of
the indictment. We disagree.
Rodriguez lived at the trap house and paid rent and utilities
there. Brewer testified that J.R. “put[] his man” Rodriguez “in
charge” of the trap house and instructed her to “deal with [Rodri-
guez] and help him make some money.” And Rodriguez took steps
to protect the trap house—and the drugs and money it contained—
by locking the refrigerator, bringing Brewer in to clean up after the
drug users, setting up security cameras, and supplying numerous
firearms for Third Shift members to use. We have no difficulty
concluding that paying rent and utilities at the house, “supervising”
its operations, and “protecting” the trap house by installing locks
and cameras, retaining a housekeeper, and providing weaponry to
other gang members constitute “maintaining” the trap house un-
der section 856(a)(1). See id.
Moreover, we consider evidence that the defendant know-
ingly maintained the premises “in combination with evidence of
distributing [controlled substances] from that place.” Id. There
was ample evidence that Rodriguez distributed drugs from the trap
house. Rodriguez kept drugs in a backpack in his bedroom, and he
sold “[a]nything that you needed”—crack and powder cocaine, ma-
rijuana, heroin, pills—from the trap house “every day.” According
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66 Opinion of the Court 20-10373
to Brewer, it was “[m]ostly” Rodriguez who sold the drugs from
the trap house. Cintron bought from him a few times a week,
Maryha, Dunton, and Brandi Simon bought from him too, and
Couch estimated that he’d bought marijuana from Rodriguez at
the trap house “[m]ore than probably like a hundred times.”
In short, a reasonable jury could conclude that Rodriguez
knowingly maintained the trap house for purposes of drug distri-
bution. Even if another drug dealer (J.R.) initially placed Rodriguez
in charge of the trap house, Rodriguez nevertheless maintained it
by paying rent and utilities, supervising it, defending it, and selling
drugs out of it. See id.
2. Churchwell
Churchwell argues that there was insufficient evidence that
he aided and abetted the maintenance of the trap house.
To prove that Churchwell aided and abetted maintenance
of the trap house, the government had to show that he: (1) took
“an affirmative act in furtherance of th[e] offense,” and (2) did so
“with the intent of facilitating the offense’s commission.” United
States v. Coats, 8 F.4th 1228, 1248 (11th Cir. 2021) (citation omitted).
That standard is satisfied here. Churchwell wasn’t a casual visitor
to Rodriguez’s house; he was a knowing participant in maintaining
Third Shift’s trap house.
The evidence showed that Churchwell “would hang out and
try to sell” crack and heroin at the trap house. His sale of drugs to
Gardner at the trap house set in motion the events that led to her
death. Thus, Churchwell was well aware that the purpose of the
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20-10373 Opinion of the Court 67
trap house was drug distribution and he participated in that distri-
bution.
And Churchwell aided the maintenance of the trap house.
Rodriguez stored weapons in the trap house and allowed other
Third Shift members, like Churchwell, to “pick up” and “hold” the
guns to “protect [the] house.” Brewer testified that Third Shift
members at the trap house “usually” had guns on them, and
Churchwell’s murder of Gardner confirmed that Churchwell was
armed when he sold drugs at the trap house. Because Churchwell
sold drugs at the trap house and handled guns provided by Rodri-
guez for the protection of the trap house, a reasonable jury could
conclude that Churchwell aided and abetted the maintenance of
the trap house for purposes of selling controlled substances. See id.
* * *
In sum, sufficient evidence supported Rodriguez’s, Church-
well’s, and Thompson’s convictions. We turn now to their argu-
ments challenging various other trial matters.
Deputy Taylor’s testimony about Thompson
Thompson argues that Deputy Taylor improperly com-
mented on his Fifth Amendment right to silence by testifying that
Thompson “didn’t want to talk to” the police. When Thompson
raised a rule 403 objection before the government called Deputy
Taylor, the district court ruled that it would “take [the issue] on the
fly.” Then, when Thompson objected on rule 403 grounds again
during Deputy Taylor’s testimony, the district court overruled
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68 Opinion of the Court 20-10373
Thompson’s objection “for now.” But Thompson never raised a
Fifth Amendment objection at any point before or during trial.
And he didn’t argue, in asserting his rule 403 objections, that Dep-
uty Taylor’s anticipated response would comment on his right to
silence.
A defendant must “clearly state the grounds for an objection
in the district court.” United States v. Zinn, 321 F.3d 1084, 1087 (11th
Cir. 2003). The objection must be “sufficient to apprise the trial
court and the opposing party of the particular grounds upon which
appellate relief will later be sought.” United States v. Straub, 508
F.3d 1003, 1011 (11th Cir. 2007) (citation omitted). And so, “[t]o
preserve an issue for appeal, a general objection or an objection on
other grounds will not suffice.” United States v. Gallo-Chamorro, 48
F.3d 502, 507 (11th Cir. 1995) (citation omitted). Thompson, at
best, preserved a rule 403 objection at trial but now seeks to bring
a constitutional claim on appeal. Because raising one objection
does not preserve a completely separate objection for appeal, see
id., we review Thompson’s unpreserved Fifth Amendment objec-
tion for plain error. That means Thompson must show that the
district court made an error, that the error was plain, and that it
affected his substantial rights. United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir. 2005).
Thompson failed to establish error, let alone plain error, be-
cause he failed to establish that his silence occurred in a custodial
setting. We have said that “a defendant’s silence in response to a
question in a non-custodial interview by a law-enforcement officer
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20-10373 Opinion of the Court 69
[i]s admissible as substantive evidence of his guilt” where “the de-
fendant did not ‘expressly invoke the privilege against self-incrimi-
nation in response to the officer’s question.’” United States v. Wilch-
combe, 838 F.3d 1179, 1191 (11th Cir. 2016) (quoting Salinas v. Texas,
570 U.S. 178, 181 (2013)). We’ve also said that “[t]he government
may comment on a defendant’s silence if it occurred prior to the
time that he is arrested and given his Miranda warnings.” United
States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991).
Here, there was no indication from Deputy Taylor’s testi-
mony that Thompson’s refusal to talk was in response to a question
during a custodial interview or after his arrest. Rather, Deputy
Taylor testified that he didn’t arrest Thompson “for any of []his be-
havior.” Because the record establishes that Thompson wasn’t
subjected to a custodial interview when he refused to talk to Dep-
uty Taylor, the district court didn’t plainly err in allowing the gov-
ernment to elicit this testimony. See id.; Wilchcombe, 838 F.3d at
1191.
The jury instruction for count twenty—maintaining a
drug distribution house
Churchwell argues that the district court plainly erred by
failing to instruct the jury on the elements of count twenty, main-
taining a drug distribution house. This error violated his due pro-
cess right to have the jury instructed on the elements, Churchwell
argues, and wasn’t cured by the instruction in count one, which
provided the elements of maintaining a drug distribution house as
a predicate act for the racketeering-conspiracy charge. Because
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70 Opinion of the Court 20-10373
Churchwell didn’t raise this argument before the district court, we
also review it for plain error.
“When we apply the plain error rule to jury instructions,
we . . . consider the totality of the charge as a whole and determine
whether the potential harm caused by the jury charge has been
neutralized by the other instructions given at the trial such that rea-
sonable jurors would not have been misled by the error.” United
States v. Iriele, 977 F.3d 1155, 1178 (11th Cir. 2020) (cleaned up).
“Jury instructions will not be reversed for plain error unless the
charge, considered as a whole, is so clearly erroneous as to result
in a likelihood of a grave miscarriage of justice.” United States v.
Pepe, 747 F.2d 632, 675 (11th Cir. 1984) (citation and quotation
marks omitted). “If another instruction the court gave neutralized
the error, then it was not an error at all, let alone a reversible plain
error,” “because the charge as a whole d[id] not misinform the jury
or prejudice the defendant.” Iriele, 977 F.3d at 1178 & n.12 (citation
omitted).
We conclude that the district court didn’t err in instructing
the jury on the elements of maintaining a drug distribution house.
In the racketeering-conspiracy instruction, the district court listed
the maintenance offense as a predicate racketeering act and pro-
vided the offense’s elements. Then, before “address[ing] the
counts of the superseding indictment that charge[d] crimes other
than racketeering conspiracy,” the district court informed the jury
that “[s]ome of these crimes [we]re also charged as racketeering
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acts, which [the district court] explained above.” Finally, in the sep-
arate instruction for count twenty, the district court told the jury
to refer back to its predicate-act instruction to determine whether
Churchwell was guilty of maintaining a drug distribution house.
The district court’s approach to the jury instructions—refer-
ring back to other instructions to avoid duplication, and twice ex-
plicitly signaling to the jury (once generally before starting the non-
racketeering-conspiracy instructions, and again during the count-
twenty instruction) that some charged crimes had been “explained
above” or “previously instructed”—was not “so clearly erroneous
as to result in a likelihood of a grave miscarriage of justice.” See
Pepe, 747 F.2d at 675. Nothing in the law required the district court
to repeat itself. To the contrary, “district courts have wide discre-
tion in the phrasing of instructions.” United States v. Akwuba, 7
F.4th 1299, 1312 (11th Cir. 2021). And the district court told the
jury to “follow all of [its] instructions as a whole.” [Id. at 2] “[W]e
presume that the jury followed its instructions.” See United States
v. Stone, 9 F.3d 934, 940 (11th Cir. 1993). Because the district court’s
instructions for counts one and twenty, taken together, accurately
instructed the jury on the elements of maintaining a drug distribu-
tion house, we conclude that there “was not an error at all, let alone
a reversible plain error.” Iriele, 977 F.3d at 1178.
The justifiable use of deadly force jury instruction
The racketeering charges against Rodriguez in counts one,
three, and four alleged that he conspired to murder, and did in fact
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72 Opinion of the Court 20-10373
murder, Tellez, in violation of Florida Statutes section 782.04. Ro-
driguez contends that the district court abused its discretion in fail-
ing to instruct the jury on the justifiable use of deadly force, his
affirmative defense to Tellez’s murder. He argues his proposed in-
struction was correct and Florida’s self-defense law didn’t require
that a “duty to retreat instruction be given” where “there was no
duty on the part of Rodriguez to retreat from his own car or from
a public street.”
“A criminal defendant has the right to a jury instruction on
a proposed theory of defense, provided it is a valid defense and
there is some evidence at trial to support the instruction.” United
States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011) (citation omit-
ted). “We consider three factors when determining whether the
district court’s refusal to give a requested jury instruction warrants
reversal: ‘(1) whether the requested instruction is a substantially
correct statement of the law; (2) whether the jury charge given ad-
dressed the requested instruction; and (3) whether the failure to
give the requested instruction seriously impaired the defendant’s
ability to present an effective defense.’” United States v. Hill, 799
F.3d 1318, 1320 (11th Cir. 2015) (citation omitted). We conclude
that Rodriguez’s proposed instruction was not a substantially cor-
rect statement of Florida law.
Under Florida common law, “a person [could] not resort to
deadly force without first using every reasonable means within his
or her power to avoid the danger, including retreat,” even if the
person “reasonably believe[d] that deadly force [wa]s necessary”
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20-10373 Opinion of the Court 73
for self-defense. Weiand v. State, 732 So. 2d 1044, 1049 (Fla. 1999)
(citations omitted). But the Florida Legislature modified the com-
mon law rule by enacting Florida Statutes section 776.012(2). Sec-
tion 776.012(2) codifies justifiable use of deadly force as an affirma-
tive defense to murder. Fla. Stat. § 776.012(2) (“A person is justified
in using or threatening to use deadly force if he or she reasonably
believes that using or threatening to use such force is necessary to
prevent imminent death or great bodily harm to himself or herself
or another or to prevent the imminent commission of a forcible
felony.”). And it “suspends the common[ ]law duty to retreat . . .
in limited, defined circumstances.” State v. Wagner, 353 So. 3d 94,
101 (Fla. Dist. Ct. App. 2022).
Specifically, under section 776.012(2), a person who “us[es]
or threaten[s] to use . . . deadly force” in reasonable self-defense has
no duty to retreat “if the person . . . is not engaged in a criminal
activity and is in a place where he or she has a right to be.” Fla.
Stat. § 776.012(2). But if the person who uses, or threatens to use,
deadly force is engaged in criminal activity when attacked, the
common law duty to retreat still applies. See State v. Kirkland, 276
So. 3d 994, 997 (Fla. Dist. Ct. App. 2019) (holding that trial court
erred in dismissing defendant’s charge for shooting at a building
because, although “he was in a place he had a right to be,” the de-
fendant “was engaged in [uncharged] illegal activity,” specifically
“open carry of a firearm,” Fla. Stat. § 790.053(1), “improper exhibi-
tion of a firearm,” id. § 790.10, and “aggravated assault with a fire-
arm,” id. § 784.021(1)(a)).
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74 Opinion of the Court 20-10373
Consistent with section 776.012(2), the standard Florida jury
instruction governing the justifiable use of deadly force provides
that a trial court should “[g]ive the paragraph below when there is
evidence that the defendant was engaged in criminal activity”:
If (defendant) was otherwise engaged in criminal ac-
tivity or was not in a place he had a right to be, then
the use of deadly force was not justified unless he
used every reasonable means within his power and
consistent with his own safety to avoid the danger be-
fore resorting to the use of deadly force. The fact that
the defendant was wrongfully attacked cannot justify
his use of deadly force, if, by retreating, he could have
avoided the need to use deadly force. However, if (de-
fendant) was placed in a position of imminent danger
of death or great bodily harm and it would have in-
creased his own danger to retreat, then his use of
deadly force was justifiable.
Fla. Standard Instr. (Crim.) 3.6(f) (cleaned up) (citing Morgan v.
State, 127 So. 3d 708 (Fla. Dist. Ct. App. 2013)); see also Morgan, 127
So. 3d at 716 (“[T]he ‘no duty to retreat’ rule,” as originally codified
in Florida Statutes section 776.013(3), “applies only when a person
‘is not engaged in an unlawful activity.’” (citation omitted)).
Here, there was evidence that Rodriguez was “engaged in”
multiple “criminal activit[ies]” when he sprayed Tellez’s house
with bullets during a retaliatory drive-by shooting. Fla. Stat.
§ 776.012(2). Rodriguez, along with other Third Shift members,
devised an elaborate plan to kill South Side gang members. Cf. id.
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20-10373 Opinion of the Court 75
§ 777.04(3) (“A person who agrees . . . [or] combines . . . with an-
other person . . . to commit any offense commits the offense of
criminal conspiracy . . . .”). Rodriguez doesn’t dispute that he “dis-
charge[d] a firearm . . on . . . a[] paved public road”—a crime un-
der Florida law—when executing that plan. Id. § 790.15(1). [Ro-
driguez Br. at 51–52] There was also evidence that Rodriguez was
“shoot[ing] at” persons from a car and toward a “private building”
(Tellez’s house)—separate crimes under Florida law. Id. § 790.19;
see also id. § 790.10 (exhibiting a firearm “in the presence of one or
more persons . . . in a . . . threatening manner” is a crime); id.
§ 790.15(2) (firing a gun while an “occupant of any vehicle” and
“within 1,000 feet of any person” is a crime); id. § 790.07(1) (using
or attempting to use “any weapon” “while committing or attempt-
ing to commit any felony” is itself a felony); cf. Kirkland, 276 So. 3d
at 997 (reasoning that similar firearms offenses qualified as “crimi-
nal activity”).
If the jury found that Rodriguez was engaged in criminal ac-
tivity, then section 776.012(2)’s limited suspension of the common
law duty-to-retreat rule could not apply even if Rodriguez had a
right to be on the public road. See Kirkland, 276 So. 3d at 997; Mor-
gan, 127 So. 3d at 716. That would mean Rodriguez’s use of deadly
force was justified only if he “first us[ed] every reasonable means
within his . . . power to avoid the danger, including retreat,” even if
he “reasonably believe[d] that deadly force [wa]s necessary” for his
self-defense. Weiand, 732 So. 2d at 1049; see also Fla. Standard Instr.
(Crim.) 3.6(f). But Rodriguez’s proposed self-defense instruction
didn’t tell the jury to consider whether he was engaged in criminal
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76 Opinion of the Court 20-10373
activity, so it would’ve allowed the jury to find justification with-
out considering whether he could have first retreated.
That omission made Rodriguez’s proposed instruction “in-
complete” and “misleading.” See United States v. Silverman, 745 F.2d
1386, 1396 (11th Cir. 1984) (explaining that a district court “is
bound to refuse a requested instruction that is incomplete, errone-
ous, or misleading”). And, because his proposed instruction was
misleading and incomplete, the district court didn’t abuse its dis-
cretion in refusing to give Rodriguez’s self-defense instruction un-
less it also told the jury to consider whether Rodriguez was en-
gaged in criminal activity (an offer Rodriguez rejected).
The jury’s question about the racketeering charge
Rodriguez argues that the district court erred in answering
the jury’s question about whether it could find a defendant guilty
of murder if he were found not guilty of racketeering. Rodriguez
argues that the district court should have instructed the jury con-
sistent with the government’s position: that the jury could have
found the section 1111 murder enhancement to the section 924(c)
charge without “determin[ing] that the perpetrator was also a part
of a racketeering organization.” We conclude that Rodriguez in-
vited any error.
Again, “[w]here a party invites error,” we are “precluded
from reviewing that error on appeal.” United States v. Harris, 443
F.3d 822, 823–24 (11th Cir. 2006) (citation omitted). “[F]ailing to
object does not trigger the doctrine,” United States v. Dortch, 696
F.3d 1104, 1112 (11th Cir. 2012), overruled in part on other grounds by
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20-10373 Opinion of the Court 77
Alleyne v. United States, 570 U.S. 99 (2013), but “when a party agrees
with a court’s proposed instructions, the doctrine of invited error
applies, meaning that review is waived,” United States v. Frank, 599
F.3d 1221, 1240 (11th Cir. 2010).
Here, Rodriguez didn’t initially adopt the government’s po-
sition on answering the jury’s question, and he didn’t object to the
district court’s answer. Two days later, Rodriguez moved to adopt
the government’s position that “a defendant can be found guilty of
murder without the finding of racketeering.” But he changed his
mind the next day, withdrew his motion adopting the govern-
ment’s position, and, critically, “concede[d] that the [district
court’s] response to the jury’s question [wa]s correct.”
Because Rodriguez ultimately agreed with the district
court’s instruction, the invited error doctrine applies and precludes
our review of the district court’s response to the jury’s question.
Id.; United States v. Feldman, 931 F.3d 1245, 1260 (11th Cir. 2019)
(“Under our precedent, when a party agrees with a court’s pro-
posed instructions, the doctrine of invited error applies, meaning
that review is waived even if plain error would result.” (cleaned
up)); United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005)
(“When a party responds to a court’s proposed jury instructions
with the words ‘the instruction is acceptable to us,’ such action con-
stitutes invited error.” (citation omitted)); accord United States v. Ful-
ford, 267 F.3d 1241, 1246–47 (11th Cir. 2001).
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78 Opinion of the Court 20-10373
The district court’s comment on Rodriguez’s counsel’s strategy
Finally, Rodriguez argues that the district court abused its
discretion by commenting in his presence on his counsel’s motion
to adopt the government’s position regarding the jury question.
Rodriguez argues that the district court’s comments left him “ques-
tioning his attorney’s allegiance,” “adversely impacted” the attor-
ney-client relationship by suggesting his counsel was ineffective,
and “eroded” his confidence in his attorney. Because Rodriguez
didn’t object to the district court’s comment, we again review for
plain error. See Rodriguez, 398 F.3d at 1298.
The district court’s isolated questioning of a strategic choice
that Rodriguez’s counsel later abandoned wasn’t plain error be-
cause it didn’t affect Rodriguez’s substantial rights. See id. at 1299.
To show the comments affected his substantial rights, Rodriguez
had to “show a ‘reasonable probability’ that the error affected the
outcome of the district court proceedings.” Iriele, 977 F.3d at 1177
(quoting Rodriguez, 398 F.3d at 1299). But Rodriguez hasn’t shown
any reasonable probability that the district court’s comments af-
fected the outcome. The district court’s comments came during
deliberations and after the jury had heard all of the evidence and
argument in the case. Because the district court’s comments
weren’t made in the jury’s presence, they couldn’t have led the jury
to conclude that the district court favored the government or dis-
favored Rodriguez and his counsel.
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20-10373 Opinion of the Court 79
CONCLUSION
The evidence against Rodriguez, Churchwell, and Thomp-
son was legally sufficient. The district court didn’t plainly err in
allowing Deputy Taylor to comment on Thompson’s behavior
during their encounters. Nor did it plainly err in instructing the
jury as to maintaining a drug distribution house. And we find no
reversible error in the district court’s refusal to give Rodriguez’s
proposed justifiable use of deadly force instruction, in its response
to the jury’s question, or in its comments on Rodriguez’s trial coun-
sel’s strategy. Because there is no reversible error, we affirm the
defendants’ convictions.
AFFIRMED.
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