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United States v. Taylor

United States Court of Appeals, Fourth Circuit

November 5, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARCUS ROOSEVELT TAYLOR, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DANIEL THOMAS HERSL, Defendant-Appellant.

          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)

         ARGUED:

          Stuart A. Berman, LERCH, EARLY & BREWER, CHARTERED, Bethesda, Maryland; Henry Mark Stichel, ASTRACHAN GUNST & THOMAS PC, Baltimore, Maryland, for Appellants.

          Leo Joseph Wise, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          C. William Michaels, Baltimore, Maryland, for Appellant Marcus Roosevelt Taylor.

          Nida 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.

          Before NIEMEYER, KEENAN, and RUSHING, Circuit Judges.

          NIEMEYER, CIRCUIT JUDGE.

         In 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 months' imprisonment.

         On 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.

         For the reasons that follow, we affirm.

         I

         After 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.

         Count I 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.

         Count 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.

         Count 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.

         Count 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. § 924(c).

         Count V 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.

         And 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. § 924(c).

         Jenkins pleaded guilty before trial but ultimately did not testify, and the trial commenced against Taylor and Hersl.

         The 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.

         More 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.

         The 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 gambling.

         With 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 their pay.

         The 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).

         The 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.

         From 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, 2018.

         II

         Taylor 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 located]."

         To 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).

         As the 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 Count I.

         The 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).

         At the 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 interstate communication.

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).

         We also 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 ...


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