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.
