United States v. McClaren, No. 17-30524 (5th Cir. 2021)Annotate this Case
The Fifth Circuit granted the government's petition for panel rehearing, withdrew its prior opinion, and substituted the following opinion. The court denied defendants' petitions for panel rehearing and for rehearing en banc.
Defendants McClaren, Keelen, Fortia, Scott, and Allen were convicted of numerous crimes related to their participation in a New Orleans street gang. The court concluded that the district court did not abuse its discretion in denying the motion to sever McClaren and Scott's trials; the district court did not clearly err in its Batson determinations; the court rejected challenges to co-conspirator testimony; the evidence was sufficient to support Allen, Fortia, and Keelan's convictions for RICO conspiracy under 18 U.S.C. 1962(d); the evidence was sufficient to support Fortia, Keelen, and Allen's VICAR convictions under 18 U.S.C. 1959(a)(3) and 1959(a)(1); the evidence was sufficient to support Fortia, Keelen, McClaren, and Scott's conviction for engaging in a drug-trafficking conspiracy; the evidence was sufficient to support Fortia's ratification of the drug and RICO conspiracies; and the evidence was sufficient to support Keelen, McClaren, Scott, and Fortia's convictions for conspiracy to sell 280 grams or more of crack. However, the court vacated Fortia's sentence for drug-trafficking conspiracy and remanded for resentencing.
The court concluded that it was plain error to permit the jury to convict defendants under 18 U.S.C. 924 and reversed Allen, Fortia, and Keelen's firearms convictions accordingly. Because a RICO violation is not a permissible predicate offense for a subsection (c) violation, the court also reversed Keelen's conviction under 18 U.S.C. 924(j); the evidence was sufficient to support McClaren and Scott's convictions for conspiracy to possess firearms; and defendants are not entitled to a new trial because of the admission and use of the plea agreement documents. The court affirmed the district court's denial of defendants' motion for a new trial, and affirmed Scott and McClaren's sentences.
This opinion or order relates to an opinion or order originally issued on May 18, 2021.