Insurance Fraud is a Violent Crime

After a multiple-count indictment against dozens of members of the Gangster Disciples five of them, Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, appealed their convictions and sentences following a joint trial. Each raised several grounds for reversal contending they were overcharged and over-sentenced. Some argued that the Racketeer Influenced and Corrupt Organizations Act violated the Sixth Amendment because the jury failed to find that the conspiracy involved murder.
In United States Of America v. Antarious Caldwell, a.k.a. Fat, a.k.a. Phat, Kevin Clayton, Alonzo Walton, a.k.a. Spike, Vancito Gumbs, Donald Glass, a.k.a. Smurf, a.k.a. Dred, No. 19-15024, United States Court of Appeals, Eleventh Circuit (August 16, 2023) the Eleventh Circuit Affirmed all but one sentence and all convictions.

BACKGROUND
The Gangster Disciples began as a loosely affiliated network of street gangs in Chicago but later became a hierarchical national criminal organization. Its hierarchy consisted of a “Chairman” and “national board” for the country, “Governors of Governors” in charge of multi-state regions, “Governors” in charge of each state, “Regents” in charge of counties, and “Coordinators” in charge of municipal-level divisions or, in larger cities, subdivisions called “counts” or “decks.” The “Chief Enforcer” managed a team of “Enforcers” who exacted punishments for violations of the gang’s rules, such as the prohibition against cooperating with the police.
Relevant Crimes
The indictment charged an array of criminal activities including carjacking and insurance fraud, attempted robbery of Eric Wilder, murder of DeMarco Franklin, Stone Mountain Inn and Central Avenue Shootings, murder of Robert Dixon, the last crime relevant to the appeal was Glass’s killing of Robert “Rampage” Dixon in August 2015.
Pretrial and Trial Proceedings
The principal charge against all the defendants was count one, which charged that the defendants conspired to conduct and participate directly and indirectly in the conduct of the Gangster Disciples through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). The indictment named 34 defendants, and this appeal concerns the joint trial of Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, who were convicted, and Perry Green, who was acquitted.
The district court ordered that all the defendants be secured with ankle restraints throughout the trial. Walton was convicted of racketeering conspiracy, carjacking Frederick, and using a firearm during that carjacking. Clayton was convicted of the racketeering conspiracy only. Glass was convicted of the racketeering conspiracy, acquitted of the murder of Robert Dixon, convicted of carrying a firearm during a crime of violence, namely the killing of Robert Dixon, convicted of causing the death of Robert Dixon with a firearm and acquitted of two marijuana possession charges. Caldwell was convicted of the racketeering conspiracy, the attempted Hobbs Act robbery of Eric Wilder, and carrying a firearm during a crime of violence, the attempted robbery. Vancito Gumbs was convicted of the racketeering conspiracy. For each of the convicted defendants, the jury found that “the RICO conspiracy involve[d] murder.” The jury acquitted a sixth codefendant, Perry Green.

DISCUSSION
The Eleventh Circuit concluded that the district court did not abuse its discretion in its pretrial and trial procedural decisions and that the district court also did not abuse its discretion when it declined to ask questions during voir dire about unconscious bias.
Although not in effect when the trial occurred in 2019, the revised Rules require that notice of expert opinion testimony come “sufficiently before trial” for adequate preparation and does not measure timeliness based on the expected date of the testimony.
The Ankle Restraints Did Not Violate the Defendants’ Rights.
Gumbs, Glass, and Caldwell argued that the district court abused its discretion when it ordered them to be restrained at the ankles throughout trial.
The common-law rule against shackling prevents creating an unfair impression of guilt for the jury and is limited to contexts that implicate that danger. However, the record makes clear that the ankle restraints were not perceptible to the jury and no defendant alleges that he lacked access to counsel. The district court ordered that the restraints be placed on the defendants’ legs only, that they be muffled to prevent clanking, that a curtain around the defense table conceal them from the jury, and that the defendants enter and exit the courtroom outside the presence of the jury.
The District Court Did Not Impermissibly Depart from Neutrality When It Questioned a Witness.
The trial judge is more than a referee to an adversarial proceeding. Consistent with the common-law tradition, the judge may comment on the evidence and question witnesses and elicit facts not yet adduced or clarify those previously presented. This questioning is limited only by the principle that a judge must maintain neutrality between the parties.
The district judge stayed well within these bounds. He asked a single question without commenting on the veracity or relevance of the witness’s testimony. The district court did not err, let alone clearly err, when it asked a witness for that information.
The jury found that the conspiracy included actual, not inchoate, murder as part of its racketeering activities. He instructed the jury that “acts involving murder” for the purposes of finding the two racketeering activities needed for conviction extended to Georgia-law conspiracy to commit murder and attempted murder. But the district court never said that the jury should read the phrase “involve murder” to mean “involve acts involving murder.”
Sufficient Evidence Supports the Finding that Walton Intended to Cause Death or Serious Bodily Harm in the Frederick Carjacking.
Pointing a gun at someone and demanding money is the kind of evidence on which prosecutors may rely to prove the mens rea for carjacking.
Caldwell’s Conviction Under the Armed Career Criminal Act and His Sentence Must Be Vacated.
The Supreme Court recently held that attempted Hobbs Act robbery is not a “crime of violence” under section 924(c). 142 S.Ct. at 2020. So, the Eleventh Circuit must vacate Caldwell’s conviction and it remand for the district court to re-sentence Caldwell for his remaining counts of conviction.
All the other convictions and sentences were affirmed.

ZALMA OPINION
Insurance fraud is a serious crime. It is not as serious as murder. But when a group of men work together to commit murder and insurance fraud they are acting beyond reason and deserve as serious a sentence as the court can provide in accordance with the law. The appeal was their right and the Eleventh Circuit had the obligation and right to disavow them of their arguments and only changed a sentence because of a change in the law.