Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, August 11, 2020

Green: RICO Conspiracy Is Not a Crime of Violence Under 924(c)

In United States v. Green, No. 17-10346 (Aug. 11, 2020) (Wilson, Grant, Hinkle), the Court affirmed in part and vacated in part. 

First, the Court held that RICO conspiracy is not a “crime of violence” under the elements clause in 924(c)(3)(A).  The Court reasoned that, like Hobbs Act conspiracy, RICO conspiracy was premised on a mere agreement to participate in unlawful activity and does not require an overt act. 

Second, the Court held that one of the defendant’s 120-year sentence was procedurally unreasonable because the district court failed to adequately clarify the applicable guideline range, which was determined to be 210-262 months at the initial sentencing hearing.  The district court also clearly erred by finding that the defendant participated in a murder, which stipulated cell phone records made physically impossible.

 Third, the Court upheld the denial of a motion to suppress cell-site data acquired pursuant to state court orders consistent with section 2703(d) of the Stored Communications Act.  For one defendant, the Court found that he abandoned any interest in his cell phone by failing to recover the phone during the course of four years in the government’s possession.  For other defendants, the Court found that the good-faith exception to the exclusionary rule applied: with respect to cell-site data because the government reasonably relied on the state court orders, which were issued five years before Carpenter; and with respect to real-time tracking data, the legality of which remains open today.

 Fourth, the Court found no abuse of discretion in denying a peremptory strike because it violated the voir dire procedure, under which he agreed to jointly exercise peremptory strikes with the other defendants.

 Fifth, the Court found that the district court erroneously admitted testimony concerning street rumors that one of the defendants committed murder.  That testimony was not admissible under 801(d)(2)€ because the witness did not hear it from co-conspirators, only through street rumors.  However, the Court found the error to be harmless given other substantial evidence involving that defendant’s involvement in the murder.

 Based on a review of the record, the Court rejected various evidentiary claims, found the evidence sufficient, and found no error with regard to inconsistent verdicts.