United States v. Simmons, No. 18-4875 (4th Cir. 2021)Annotate this Case
Defendants Simmons, Mitchell, and Lassiter were charged in a 38-count Second Superseding Indictment (SSI) for crimes related to their membership in the Nine Trey gang. A jury ultimately convicted defendants of 37-counts charged in the SSI. One of those offenses, Count 30, alleged a violation of 18 U.S.C. 924(c), with the predicate "crime of violence" being what the Government characterizes as an "aggravated" form of a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, the charge alleged in Count One. The district court granted defendants' motion to set aside the verdict as to Count 30.
The Fourth Circuit agreed with the district court that a RICO conspiracy, even when denominated as "aggravated," does not categorically qualify as a "crime of violence." In regard to defendants' cross-appeals, the court found merit in two of their contentions: first, the court held that the district court constructively amended Counts 8, 15, 18, 27, and 29 by instructing the jury on the elements of a state law predicate offense not alleged in the SSI; and second, the court held that the evidence was insufficient to support their convictions on one of the Violent Crimes in Aid of Racketeering (VICAR) attempted murder offenses, which also requires reversing their convictions for the related section 924(c) offense. Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded for further proceedings.