Argued: September 20, 2019
Appeals from the United States District Court for the
District of Maryland, at Baltimore. Catherine C. Blake,
District Judge. (1:17-cr-00106-CCB-6) (1:17-cr-00106-CCB-3)
A. Berman, LERCH, EARLY & BREWER, CHARTERED, Bethesda,
Maryland; Henry Mark Stichel, ASTRACHAN GUNST & THOMAS
PC, Baltimore, Maryland, for Appellants.
Joseph Wise, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
William Michaels, Baltimore, Maryland, for Appellant Marcus
Kanwal, LERCH, EARLY & BREWER, CHARTERED, Bethesda,
Maryland, for Appellant Daniel Thomas Hersl. Robert K. Hur,
United States Attorney, Derek E. Hines, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
NIEMEYER, KEENAN, and RUSHING, Circuit Judges.
NIEMEYER, CIRCUIT JUDGE.
February 2017, a federal grand jury indicted seven officers
of the Baltimore City Police Department for their
participation in a racketeering conspiracy and substantive
acts of racketeering, in violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1962, as well as other related crimes. The
officers, who were members of the Police Department's Gun
Trace Task Force ("GTTF"), were charged with
robbing citizens during the course of their police service,
taking money, jewelry, and other items. They were also
charged with committing fraud in obtaining overtime pay from
the Police Department. Four officers pleaded guilty and
cooperated by testifying at trial. One officer pleaded guilty
and did not testify. And two, Marcus Taylor and Daniel Hersl,
the appellants, went to trial and were convicted of RICO
conspiracy, in violation of 18 U.S.C. § 1962(d);
substantive acts of RICO, in violation of 18 U.S.C. §
1962(c); and Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951. The district court sentenced each to 216
appeal, Taylor and Hersl contend that the evidence was
insufficient to convict them. In particular, they contend (1)
that the evidence failed to show that they had committed wire
fraud under 18 U.S.C. § 1343, one of the predicates for
the RICO counts, in that no evidence was introduced at trial
to show that they could foresee that the paper slips the
officers used to fraudulently claim overtime pay would cause
a transmission by wire in interstate commerce and
(2) that the evidence failed to show that they had committed
acts constituting Hobbs Act robbery or robbery under Maryland
law, another alleged predicate for the RICO violations.
Taylor and Hersl also contend that the court abused its
discretion in denying various trial-related motions, thereby
prejudicing them. Finally, they challenge the substantive
reasonableness of their sentences.
reasons that follow, we affirm.
four officers in the Police Department's GTTF pleaded
guilty and agreed to cooperate by testifying at the trials of
the remaining officers, the grand jury returned a six-count
superseding indictment against Sergeant Wayne Jenkins, the
officer in charge of the GTTF; Detective Marcus Taylor; and
Detective Daniel Hersl.
charged the defendants with RICO conspiracy under 18 U.S.C.
§ 1962(d), alleging that the Baltimore City Police
Department was the enterprise through which the defendants
engaged in a racketeering conspiracy, whose predicate
offenses included wire fraud, in violation of 18 U.S.C.
§ 1343; robbery, attempted robbery, and conspiracy to
commit robbery, in violation of Maryland law; extortion,
attempted extortion, and conspiracy to commit extortion by a
government officer, in violation of Maryland law; and
controlled substance offenses, in violation of 21 U.S.C.
§§ 841 and 846.
II charged the defendants with substantive racketeering, in
violation of 18 U.S.C. § 1962(c), setting forth 22
predicate racketeering acts, each identified by date and name
of victim. Many of the racketeering acts identified in Count
II overlapped with the constituent crimes alleged in Count I
as acts in furtherance of the conspiracy.
III charged Jenkins and Taylor with Hobbs Act robbery for the
alleged robbery of Oreese Stevenson on March 22, 2016, in
violation of 18 U.S.C. § 1951.
IV charged Jenkins and Taylor with possession of a firearm in
furtherance of a crime of violence, namely the Hobbs Act
robbery charged in Count III, in violation of 18 U.S.C.
charged Jenkins and Hersl with Hobbs Act robbery for the
robbery of Ronald and Nancy Hamilton on July 8, 2016, in
violation of 18 U.S.C. § 1951.
Count VI charged Jenkins and Hersl with possession of a
firearm in furtherance of a crime of violence, namely the
robbery alleged in Count V, in violation of 18 U.S.C. §
pleaded guilty before trial but ultimately did not testify,
and the trial commenced against Taylor and Hersl.
government presented testimony from over a dozen witnesses,
including the four former GTTF officers who had pleaded
guilty and agreed to cooperate. The former officers all
testified that, during their time in the GTTF (and, for some,
during their prior assignment on a Special Enforcement
Section of the Police Department), they conducted illegal
searches and stole money, drugs, and other items while acting
in a law enforcement capacity. They also testified that they
submitted overtime forms for themselves and for other GTTF
officers for hours that they had not worked.
particularly, the government presented evidence to show that
GTTF officers, including Taylor, targeted a drug dealer,
Oreese Stevenson, as he was in a minivan selling cocaine to
Demetrius Brown. In searching the vehicle, the officers found
cocaine and a backpack containing money. Stevenson testified
at trial that, while he had not counted the money, he
expected the bag to contain approximately $21, 500 from Brown
as payment for the cocaine. He explained that he knew Brown
and that Brown had always brought the correct amount of
money. But after Taylor seized the money from the vehicle, he
brought only $15, 000 to police headquarters, and that $15,
000 was submitted to the evidence control unit of the Police
Department. After this stop and seizure, the GTTF officers
went to Stevenson's house and did what they called a
"sneak-and-peek," which involves, as one former
officer testified, "go[ing] [into someone's home]
without [anybody] knowing and sneak[ing] around the house and
tak[ing] a peek and search[ing] through the house without a
search warrant." During the search, they uncovered
cocaine and a safe, and some officers then left to obtain a
search warrant. Upon returning with the warrant, officers
pried open the safe and found $200, 000. After taking $100,
000 for themselves, they reported that only $100, 000 had
been found in the safe. The officers, including Taylor, then
split the $100, 000 among themselves.
government also presented evidence to show that GTTF
officers, including Hersl, targeted Ronald Hamilton, who they
believed to be a "big-time drug dealer," stopped
him, and, after he acknowledged having about $40, 000 in his
house, drove to his house, entering it without a warrant. As
a result of the search of his house, the officers uncovered
some $70, 000. Of that, they took $20, 000, leaving $50, 000
to be discovered by the Maryland State Police to legitimize
the encounter. The officers, including Hersl, then split the
$20, 000 among themselves. Hamilton testified that some of
the money was used in carrying out his used car business,
which he conducted on a cash basis. He stated that he
purchased cars from dealer auctions in Manheim, Pennsylvania;
Bel Air, Maryland; and Jessup, Maryland, and sold them on the
Internet or by word of mouth. The cash seized, he testified,
represented money from the sale of cars and from his
respect to the overtime fraud, the government presented
evidence that the defendants regularly submitted overtime
slips on their own behalf and on behalf of other GTTF
officers for hours that they had not worked. To do so, the
officers listed the hours that they had purportedly worked on
overtime slips and submitted them to the unit timekeeper.
Using a computer, the timekeeper then entered the information
into a timekeeping service from ADP, the third-party company
that the Police Department had hired to process its data. FBI
Special Agent Erika Jensen testified that Sgt. Jenkins (or
Sgt. Thomas Allers, who had been in charge of the GTTF prior
to Jenkins) would authorize the officers' overtime hours
by signing off on them and turning them "into the
system." After the data were received by ADP in South
Dakota, the officers were ultimately paid either by check or,
in most cases, by direct electronic deposit into their bank
accounts. The defendants' overtime pay during the
relevant period almost matched their base salaries, doubling
jury found Taylor and Hersl guilty of RICO conspiracy (Count
I), substantive racketeering (Count II), and Hobbs Act
robbery (Counts III and V), but it acquitted them of
possession of a firearm in furtherance of a crime of violence
(Counts IV and VI).
district court sentenced each defendant to 216 months'
imprisonment on each count, to be served concurrently, which
was near the low end of the advisory Guidelines range.
the judgments of conviction - dated June 13, 2018, for
Taylor, and June 26, 2018, for Hersl - the defendants filed
these appeals, which we consolidated by order dated July 3,
and Hersl contend first that their convictions on Count I for
a RICO conspiracy, in violation of 18 U.S.C. § 1962(d),
should be reversed because the government failed to prove a
pattern of racketeering activity - which may be shown by at
least two racketeering acts - by presenting insufficient
evidence in support of the necessary elements of wire fraud
under 18 U.S.C. § 1343, one of the acts found by the
jury. They argue that to show a violation of § 1343, the
government had to prove that the use of interstate wires was
"reasonably foreseeable" to at least one
conspirator. They maintain that although "[t]he
government proved without dispute that the process leading to
paying overtime to . . . officers involved the use of
interstate wires," it "offered literally no
evidence to prove that the use of the wires was foreseeable
to Hersl, Taylor, or other conspirators." More
particularly, they assert that "the government
introduced no evidence whatsoever that it was reasonably
foreseeable to Hersl, Taylor, or coconspirators that the
submission of overtime slips would lead to wire
communications between [the Police Department] and ADP, let
alone interstate wire transmissions from Maryland to South
Dakota [where ADP's servers for the payroll system were
convict the defendants of RICO conspiracy, as charged in
Count I, the government was required to prove "the
existence of a RICO enterprise in which the defendant
conspired to participate, and that the defendant conspired
that a member of the enterprise would perform at least two
racketeering acts constituting a pattern of racketeering
activity." United States v. Pinson, 860 F.3d
152, 161 (4th Cir. 2017) (cleaned up) (citing Salinas v.
United States, 522 U.S. 52, 62 (1997)). And to establish
a "pattern of racketeering activity," the
government was required to prove, as the district court
instructed the jury, that "the conspiracy involved or
would have involved the commission of [at least] two
racketeering acts." See also 18 U.S.C. §
1961(5). The RICO statute defines qualifying racketeering
acts to include certain state law crimes, such as robbery,
and acts indictable under specific federal statutes,
including wire fraud. Id. § 1961(1).
indictment charged and the jury found, the Police Department
was the enterprise through which Hersl and Taylor conspired
with other GTTF officers to enrich themselves by committing
various racketeering acts. The jury also found, as to each of
the defendants, one act constituting robbery under Maryland
law and one act constituting wire fraud under 18 U.S.C.
§ 1343. Consequently, if the evidence was insufficient
to support a finding that the defendants' conduct
constituted wire fraud under § 1343, as the defendants
contend, one of the two necessary acts would be voided,
requiring reversal of the defendants' convictions on
wire fraud statute provides that "[w]hoever, having
devised or intending to devise any scheme or artifice to
defraud, . . . transmits or causes to be transmitted by means
of wire . . . communication in interstate or foreign
commerce, any writings, signs, signals, pictures, or sounds
for the purpose of executing such scheme or artifice . . .
shall be [punished]." 18 U.S.C. § 1343. Thus, to
establish a violation of the statute, the government must
prove (1) the existence of a scheme to defraud and (2) the
fact that the defendant used or caused the use of wire
communications in furtherance of that scheme. See United
States v. Burfoot, 899 F.3d 326, 335 (4th Cir.
2018); United States v. Jefferson, 674 F.3d 332, 366
(4th Cir. 2012). As the district court instructed the jury in
this case, it is "not necessary for the defendant to be
directly or personally involved in the wire communication as
long as that communication was reasonably foreseeable in the
execution or the carrying out of the alleged scheme to
defraud in which the defendant is accused of
participating." See also Burfoot, 899
F.3d at 335 ("One 'causes' the use of a wire
communication when one acts with knowledge that such use will
follow in the ordinary course of business or when such use
can reasonably be foreseen, even though not actually
intended" (cleaned up)). Whether the use of wire
transmissions can be reasonably foreseen is determined under
an objective standard. See United States v. Edwards,
188 F.3d 230, 234 (4th Cir. 1999).
outset, we conclude that the interstate nexus
required in § 1343 is a jurisdictional element - rather
than a substantive element - of the crime of wire fraud.
See Torres v. Lynch, 136 S.Ct. 1619, 1630 (2016)
(recognizing "a settled practice of distinguishing
between substantive and jurisdictional elements of federal
criminal laws"). And while the government is generally
required to prove a defendant's mens rea with
respect to substantive elements of a crime, such proof is not
required for a jurisdictional element. See id. at
1631. As the Second Circuit observed:
The use of interstate communication . . . is included in the
[wire fraud] statute merely as a ground for federal
jurisdiction. The essence of the crime is the fraudulent
scheme itself. . . . If the wire employed is an interstate
wire the requirements for federal jurisdiction are satisfied.
It is wholly irrelevant to any purpose of the statute that
the perpetrator of the fraud knows about the use of
United States v. Blassingame, 427 F.2d 329, 330 (2d
Cir. 1970); see also United States v. Jinian, 725
F.3d 954, 965 (9th Cir. 2013) (holding that the interstate
nexus in § 1343 is "jurisdictional and not a
substantive element of a wire fraud offense");
United States v. Tum, 707 F.3d 68, 73 (1st Cir.
2013) ("The wire-fraud statute's interstate-nexus
requirement is purely jurisdictional and not a substantive
element of the offense"); accord United States v.
Darby, 37 F.3d 1059, 1067 (4th Cir. 1994) (holding that
similar language in 18 U.S.C. § 875(c) (requiring
transmission of communications to be in "interstate
commerce") did not require the government "to prove
that [the defendant] knew of the interstate nexus"
because "criminal statutes based on the government's
interest in regulating interstate commerce do not generally
require that an offender have knowledge of the interstate
nexus of his actions"). Cf. United States v.
Bentz, 21 F.3d 37, 40-41 (3d Cir. 1994) (drawing no
clear distinction between the foreseeability of a wire
transmission and the foreseeability of an interstate wire
transmission in holding that the government had presented
insufficient evidence to show the foreseeability of
any wire transmissions).
conclude that the evidence in this case of the interstate
nexus - taking it in the light most favorable to the
government, as we must - was sufficient to satisfy the
jurisdictional element. The evidence shows that the
defendants and their coconspirators submitted fraudulent
paper timeslips on their own behalf and on behalf of others
in the conspiracy, claiming overtime hours for work that they
had not performed. These slips were submitted to
coconspirator Sgt. Jenkins for approval and to the timekeeper
clerk, who entered them into the "eTIME" computer
program for processing by ADP, which provided the software
and servers for the Police Department's payroll
processing. An executive of ADP explained that the Police
Department used two of its services - payroll processing on
technology known as Enterprise Payroll Services, or EPS, and
a timekeeping system called "eTIME." To provide
these services, ADP operated a mainframe system with servers
located in Sioux Falls, South Dakota. The executive added,
"ADP owns the servers and hosts [the products], and the
[Police Department] just processes payroll through those
servers." He stated that when the Police Department