UNITED STATES

v.

VERTUIES WALL

issues. Therefore, we affirm the defendants' convictions and sentences.[fn1]

I.

About forty alleged members of the Gangster Disciples were indicted on various charges, namely conspiracy under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d), and drug trafficking conspiracy charges, 21 U.S.C. § 846. Some individuals pleaded guilty, and others were found guilty. Three individuals, Lewis Mobley, Vertuies Wall, and Lawrence Grice ended up codefendants in one such case. The indictment provided notice that the government would seek to convict the individuals of the enhanced sentencing provision of 18 U.S.C. § 1963(a). Of particular note, the indictment cites all three Georgia murder-related statutes—the statutes criminalizing murder, attempted murder, and conspiracy to murder—in its list of racketeering acts for purposes of the RICO conspiracy charge but only the actual murder statute in the notice for the enhanced sentencing provision.

Before trial, the district court had to determine whether Mobley was competent to assist in his defense. A defense expert, Dr. Julie Dorney, testified that Mobley wasn't competent to stand trial. But Dorney conceded that Mobley was aware of the different pleas and plea bargains and the roles of different trial participants, that Mobley wasn't hearing voices at that time, and that Mobley had his condition under control via medication. Mobley refused to

see the government's expert psychologist, Dr. Scott Duncan, making it so that Duncan couldn't opine on Mobley's competence directly. But Duncan testified that an individual can be both "paranoid schizophrenic" and competent. He further explained that Mobley's prison records showed that Mobley had been very stable over the previous year and gave Mobley the lowest designation for mental health issues.

Duncan also testified that Mobley's conduct suggested "false or grossly exaggerated symptoms"—or malingering—particularly in light of Mobley's previous malingering diagnosis. For example, Mobley previously said that he did not want to be in a multi-defendant trial, giving him a reason to feign incompetency. And a prison guard testified that, after Mobley refused to meet with Duncan, Mobley said that "he didn't want to see the person to be made competent." The government also introduced recordings of calls that Mobley made from prison within days of Dorney's May interview finding him incompetent in which Mobley asked someone to send certain information to his attorneys and laughed and made plans.

Ultimately, the district court found Mobley competent. The district court noted that it had conducted a colloquy with Mobley several months before the competency hearing, and he had understood the charges against him and what was going on.

The trial was five weeks long and included testimony from more than sixty witnesses, establishing that the Gangster Disciples was a racketeering enterprise and that the defendants conspired to

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participate in that enterprise through a pattern of racketeering activity that included murder and drug trafficking. The trial evidence included intercepted calls and detailed testimony from twelve Gangster Disciples members describing the gang's highly sophisticated organization and rules and specifying the violent, criminal conduct of numerous Gangster Disciples members, including Gangster Disciples leaders Mobley and Wall. Several Gangster Disciples witnesses testified that they had pleaded guilty in this case or to the RICO conspiracy. And there was some testimony about the convictions of other coconspirators. There was also significant incriminating physical evidence, such as gang literature, drugs, and firearms—including the firearm that Wall used in murders that took place at the Wings Cafe. Some of this physical evidence was recovered from Mobley's residence. Moreover, the trial evidence included surveillance video of both Mobley and Wall participating in attempted murder and murder, respectively.

Witnesses' testimony and gang literature established that murder was a feature of the Gangster Disciples and was directed by gang leadership—not mere random violence. For example, the gang's rules include a list of death violations, which are infractions punishable by death. Witnesses testified that there were special units of the gang charged with committing murder on gang leadership's orders.

The evidence connected Mobley and Wall to the gang's murders from their positions as gang leaders. For example, Mobley headed the Hate Committee, which enforced gang rules and

committed murders in Georgia. Mobley ordered the Hate Committee to kill J.H. As for Wall, the evidence showed that he was also a leader of the gang and used his leadership position to incite the gunfight at Wings Cafe, which ended in the murder of three people. Witnesses testified that Wall went to the Wings Cafe seeking a deadly confrontation with his victims and that he instigated the shootings.

Moreover, witnesses testified about the Gangster Disciples drug trafficking scheme and specified that the gang trafficked kilograms of cocaine. Gang literature discussed cocaine trafficking and how to do it effectively. Junior members were trained on drug trafficking, and gang leadership organized drug trafficking across state lines. Furthermore, cocaine and drug trafficking paraphernalia were seized from Mobley's residence during a search. Law enforcement agents testified about many of these facts based on their investigation.

Witnesses also testified that Grice was a Gangster Disciples leader in the Houston area. The jury heard evidence that Grice personally participated in Gangster Disciples management and in packaging a large Louisiana cocaine shipment. Other witnesses testified that Grice was involved in cocaine and heroin trafficking, and cell phone records established that Grice was in a car following the Louisiana cocaine shipment and made thirty-eight calls from nearby the Louisiana traffic stop that caught the drug shipment right after the stop happened.

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At one point during trial, after the government introduced calls between coconspirators, Mobley—over the government's objection—elicited testimony that the defense didn't have the same opportunity to put "calls" before the jury. Mobley then later unsuccessfully tried to introduce evidence of a call. Consequently, the district court instructed the jury on the hearsay rule and the coconspirator exception, explaining that the defense may not use the coconspirator exception but may use other exceptions to the hearsay rule.

The district court also instructed that the evidence of guilty pleas and convictions was admitted for the limited purpose of explaining why certain individuals weren't part of the trial and directed the jury that it could not consider that evidence "in deciding the guilt or innocence of the defendants here on trial."

At the end of evidence, the district court instructed the jury on the relevant charges. The court explained to the jury during trial and in the final charge that it was the jury's responsibility to determine that a conspiracy existed before it could consider coconspirator statements. And the court instructed that the jury "shouldn't assume from anything I've said that I have any opinion about any factual issue in this case" and that the jury had to "arriv[e] at [its] own decision about the facts."

There was a dispute below about the mens rea. Mobley proposed an instruction that would have instructed the jury that he had to have knowledge that a coconspirator would commit racketeering acts. But then Mobley seemingly changed his position after

arguing for the knowledge language. In Mobley's objections to the jury instructions, which Wall adopted, he argued that the "knowing" language in the enhanced sentencing element was "an incorrect statement of the law." Mobley proposed that the instruction be changed to "charge the jury that the defendant joined or remained in the conspiracy knowing, intending[,] and agreeing that the enterprise engaged in this type of racketeering activity." Before the jury was instructed, Mobley and Wall again asserted that the sentencing element jury instruction stated "the incorrect standard." Again, counsel told the district court that "it has to be [] knowing, intending, and agreeing that the enterprise engaged in this type of activity." Ultimately, the district court instructed the jury that "[f]or those racketeering activity types, you must unanimously decide whether the Defendant joined or remained in the RICO conspiracy knowing that the enterprise engaged in this type of racketeering activity."

In its narration of what counts as a "pattern of racketeering activity," the district court defined "acts involving murder" broadly to "include[] murder, attempted murder, and/or conspiracy to murder." Dist. Ct. Doc. 2905 at 17. In this context, the district court explained the difference between murder—both standard murder with its requirement of malice aforethought and felony murder— and an inchoate crime like conspiracy to commit murder.

The jury verdict form for each defendant contained the relevant charges. Importantly, the special verdict form asked whether

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the conspiracy "involve[d] murder" for purposes of the enhanced sentencing provision of 18 U.S.C. § 1963(a).

Grice was convicted of RICO conspiracy in violation of 18 U.S.C. § 1962(d) and drug trafficking conspiracy in violation of 21 U.S.C. § 846.

The jury found Mobley and Wall guilty of RICO conspiracy and found by special verdict for each defendant that the RICO conspiracy "involve[d] murder." For Mobley, the jury also found that the RICO conspiracy involved at least five kilograms of a mixture containing cocaine.

The jury also found Mobley guilty of committing a violent crime in aid of a racketeering activity (VICAR)—specifically VICAR attempted murder in violation of 18 U.S.C. § 1959(a)(5)— and of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count³).

And the jury found Mobley guilty of possessing cocaine with intent to distribute it based on a small quantity of cocaine found at his residence during the execution of a search warrant (Count⁴) and a related firearms offense under 18 U.S.C. § 924(c) (Count 5). After trial, Mobley renewed a motion for acquittal on Counts⁴ and 5 and on the drug quantity special verdict for the RICO conspiracy conviction. The court granted the acquittal motion as to Counts⁴ and 5 but upheld the drug quantity special verdict. In upholding the drug quantity finding, the district court relied on a Gangster Disciples cooperator's testimony that historically the Gangster Disciples trafficked in multiple kilograms of cocaine, the cocaine recovered

from the residences of Gangster Disciples coconspirators, and the evidence that Grice was trafficking twenty kilograms of cocaine.

At issue in this appeal, Mobley and Wall received sentences for their RICO conspiracy counts based on the enhanced statutory maximum provision over objections raised at sentencing. The district court sentenced Mobley to 360 months of imprisonment on the RICO conspiracy count, a concurrent 120-month term for the VICAR attempted murder conviction, and a mandatory consecutive 120-month term on the Count³ section 924(c) offense, for a total sentence of 480 months. The district court stated that it would give Mobley the same 480-month sentence even if the RICO conspiracy conviction were invalidated. The district court sentenced Wall to 360 months of imprisonment for the RICO conspiracy.

The defendants appealed. Grice challenges the sufficiency of the evidence for his convictions. Mobley and Wall challenge various aspects of their convictions and challenge receiving the enhanced statutory maximum sentences.

II.

We must apply several standards of review to the issues in this appeal.

"We review a district court's determination of 'competency to stand trial as a factfinding subject to reversal only for clear error.'" United States v. Saingerard, 621 F. 3d 1341, 1343 (11th Cir. 2010) (quoting United States v. Izquierdo, 448 F. 3d 1269, 1276 (11th Cir. 2006)). "Where there are two permissible views of the evidence,

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the factfinder’s choice between them cannot be clearly erroneous." Id. (quoting Izquierdo, 448 F. 3d at 1278).

We review several of the challenged decisions de novo. "We review a denial of a motion for judgment of acquittal de novo." United States v. Maurya, 25 F. 4th 829, 841 (11th Cir. 2022) (emphasis added) (citing United States v. Broughton, 689 F. 3d 1260, 1276 (11th Cir. 2012)). "The evidence is sufficient if, taking it in the light most favorable to the government [and drawing all reasonable inferences in the government’s favor], 'a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.'" Id. (quoting Broughton, 689 F. 3d at 1276); United States v. Spradlen, 662 F. 2d 724, 727 (11th Cir. 1981). This standard is the same for a sufficiency of the evidence challenge to a statute’s enhanced sentencing provision. And we also "review challenges to the constitutionality of a sentence de novo." United States v. Flanders, 752 F. 3d 1317, 1342 (11th Cir. 2014) (quoting United States v. Sanchez, 586 F. 3d 918, 932 (11th Cir. 2009)).

We can apply harmless error principles to most sentencing issues, including constitutional violations under Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Candelario, 240 F. 3d 1300, 1307 (11th Cir. 2001) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)). And we review the record de novo in performing harmless error review. See United States v. Hands, 184 F. 3d 1322, 1330 n.23 (11th Cir.), (quoting United States v. Scroger, 98 F. 3d 1256, 1261 (10th Cir. 1996), modified on other grounds by, 194 F. 3d 1186 (11th Cir. 1999)).

What’s more, we review the cumulative effect of trial errors de novo. See United States v. Pendergrass, 995 F. 3d 858, 881 (11th Cir. 2021) (citing United States v. Dohan, 508 F. 3d 989, 993 (11th Cir. 2007)). And we interpret statutes de novo. See United States v. Rojas, 718 F. 3d 1317, 1319 (11th Cir. 2013) (citing United States v. Murrell, 368 F. 3d 1283, 1285 (11th Cir. 2004)).

We also review several of the challenged decisions for an abuse of discretion. "We review a court’s refusal to instruct the jury on a lesser included offense for [an] abuse of discretion." United States v. Nguyen, 255 F. 3d 1335, 1340 (11th Cir. 2001) (citing United States v. Cornillie, 92 F. 3d 1108, 1109 (11th Cir. 1996)). And we review a judge’s determination that relevant evidence is admissible, rather than excludable under Federal Rule of Evidence 403, for an abuse of discretion. See United States v. Eason, 920 F. 2d 731, 734 (11th Cir. 1990) (citing United States v. Griffin, 778 F. 2d 707, 709 (11th Cir. 1985)). We likewise review for an abuse of discretion a district court’s decisions about the admissibility of testimony. See United States v. Hawkins, 934 F. 3d 1251, 1264 (11th Cir. 2019) (citing United States v. Emmanuel, 565 F. 3d 1324, 1335 (11th Cir. 2009)).

Finally, we review most challenges that are raised for the first time on appeal for plain error. See United States v. Gresham, 325 F. 3d 1262, 1265 (11th Cir. 2003).

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III.

A.

We will start with Mobley's competency to stand trial. The district court found that Mobley had schizophrenia but was still competent to stand trial and assist with his defense. There was significant evidence of Mobley's schizophrenia. Indeed, the district court deferred to Mobley's medical diagnosis, finding that Mobley was "suffering from a mental disease or defect, that is, paranoid schizophrenia and/or antisocial personality disorder"—although the court noted serious questions about that diagnosis given the evidence of malingering. Nonetheless, the court found Mobley was "able to understand the nature and consequences of the proceedings against him and to assist properly in his defense." We review this competency determination for clear error. See Saingerard, 621 F. 3d at 1343 (quoting Izquierdo, 448 F. 3d at 1276). As long as the district court chooses one permissible view of the evidence, we must affirm on this issue. See id. (quoting Izquierdo, 448 F. 3d at 1278). Mobley cannot meet this high bar.

A defendant is incompetent "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Id. (quoting 18 U.S.C. § 4241(a)) (citing Dusky v. United States, 362 U.S. 402 (1960)). "[O]dd behavior" and a "history of mental illness" don't "mandate a finding of incompetency." Battle v. United States,

419 F. 3d 1292, 1299 (11th Cir. 2005); see also id. at 1299 n.9 ("[M]ental illness, as a matter of law, does not preclude a finding of competency to stand trial."). In short, Mobley could have a mental illness and still be competent to stand trial.

Applying the deferential standard of review, we cannot say the district court clearly erred. To be sure, a defense expert opined that Mobley wasn't competent to stand trial, and there is no direct opposing testimony that Mobley was competent. Nonetheless, there is circumstantial evidence that Mobley was competent. Because Mobley refused to see the government's expert psychologist, Dr. Duncan, Duncan couldn't opine on Mobley's competence directly. But Duncan testified that an individual can be "paranoid schizophrenic" and still be competent, and he testified that Mobley's prison records showed that he had been very stable over the previous year and gave him the lowest designation for mental health issues. Duncan also opined that Mobley's evaluation record raised concern that Mobley may be malingering—expressing false or grossly exaggerated symptoms. The testimony of a prison guard and prison recordings suggested that Mobley understood the proceedings and may have been exaggerating his symptoms. Finally, the district judge cited an in-person colloquy with Mobley, after which the district court believed that Mobley understood the charges and proceedings.

In conclusion, there is evidence that Mobley was competent. Mental illness alone isn't enough to be incompetent; the key is a defendant's ability to assist counsel and understand the charges. See

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Battle, 419 F. 3d at 1299 (quoting Medina v. Singletary, 59 F. 3d 1095, 1107 (11th Cir. 1995)). Based on this record, we cannot second guess the district court’s assessment. Because we cannot hold that the district court clearly erred by choosing one permissible view of the facts, Mobley’s competency argument must fail.

B.

We turn now to Grice’s appeal. Unlike the other defendants, Grice challenges the sufficiency of evidence for his convictions for RICO conspiracy (Count 1) and drug trafficking conspiracy (Count 24). He argues that the district court erred by denying his motion for judgment of acquittal because the government failed to prove each element of the two offenses beyond a reasonable doubt. The burden on this issue on appeal is on Grice, and he fails to sustain it because there is sufficient evidence to support Grice’s convictions.

To establish a RICO conspiracy under 18 U.S.C. § 1962(d), the government must prove that the defendants "objectively manifested, through words or actions, an agreement to participate in the conduct of the affairs of the enterprise through the commission of two or more predicate crimes." United States v. Starrett, 55 F. 3d 1525, 1543 (11th Cir. 1995) (quoting United States v. Russo, 796 F. 2d 1443, 1455 (11th Cir. 1986)) (citing United States v. Gonzalez, 921 F. 2d 1530, 1540 (11th Cir. 1991); United States v. Elliott, 571 F. 2d 880, 902 (5th Cir. 1978)). "Agreement to participate in a RICO conspiracy can be prove[n] in one of two ways": (1) "by showing an agreement on an overall objective" or (2) "by showing that a defendant

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agreed personally to commit two predicate acts." United States v. Abbell, 271 F. 3d 1286, 1299 (11th Cir. 2001) (citing United States v. Church, 955 F. 2d 688, 694 (11th Cir.1992)). An agreement on an overall objective may be proven "by circumstantial evidence showing that each defendant must necessarily have known that others were also conspiring to participate in the same enterprise through a pattern of racketeering activity." Starrett, 55 F. 3d at 1544 (quoting Gonzalez, 921 F. 2d at 1540). "RICO conspiracy requires neither proof of the commission of an overt act nor proof of an agreement to commit individual predicate acts." United States v. Green, 981 F. 3d 945, 952 (11th Cir. 2020) (citing Starrett, 55 F. 3d at 1543; United States v. Pepe, 747 F. 2d 632, 659 (11th Cir. 1984)).

To establish a drug trafficking conspiracy under 21 U.S.C. § 846, the government must prove (1) an agreement between two or more people to possess with intent to distribute at least five kilograms of cocaine, (2) that the defendant knew about the agreement, and (3) that the defendant voluntarily joined the agreement. See United States v. Azmat, 805 F. 3d 1018, 1035 (11th Cir. 2015) (citing United States v. Monroe, 866 F. 2d 1357, 1365 (11th Cir. 1989)). The existence of an agreement may be prove[n] by inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme." United States v. Mateos, 623 F. 3d 1350, 1362 (11th Cir. 2010) (quotation marks omitted) (quoting United States v. Molina, 443 F. 3d 824, 828 (11th Cir.2006)). A drug trafficking conspiracy conviction will be upheld "if there is sufficient positive indication that an illegal agreement exists, or when the circumstances surrounding a person's presence at the scene of conspiratorial

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activity are so obvious that knowledge of its character can fairly be attributed to him." United States v. Figueroa, 720 F. 2d 1239, 1246 (11th Cir. 1983) (citations omitted).

Here, witnesses testified that Grice was a Gangster Disciples leader in the Houston area. The jury heard evidence that Grice personally participated in Gangster Disciples management and the packaging of the Louisiana cocaine shipment. Other witnesses testified that Grice was involved in cocaine and heroin trafficking, and cell phone records established that Grice was in a car following the Louisiana cocaine shipment and made thirty-eight calls right after the Louisiana traffic stop from nearby that stop. Thus, the record evidence, taken in the light most favorable to the government, supports both of Grice’s convictions for conspiracy because "a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." Maurya, 25 F. 4th at 841 (quoting Broughton, 689 F. 3d at 1276). There was sufficient evidence for both the RICO conspiracy and drug trafficking conspiracy charges. Grice is wrong that his convictions are based on only speculation.

C.

Next, we face the question whether the district court correctly subjected Mobley and Wall to an enhanced statutory maximum sentence for their racketeering conspiracy convictions or instead violated Apprendi v. New Jersey, 530 U.S. 466 (2000), with the 360-month sentence. The general statutory maximum sentence under the Racketeer Influenced and Corrupt Organizations Act is twenty years. See 18 U.S.C. § 1963(a). But "[t]he Act provides for a

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maximum sentence of life imprisonment instead of only [twenty] years if 'the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.'" Caldwell, 81 F. 4th at 1174 (quoting 18 U.S.C. § 1963(a)). Mobley and Wall received thirty years under this enhanced statutory maximum sentencing provision.

The defendants collectively bring four challenges.[fn2] First, the defendants contend that the jury instructions (by referencing "acts involving murder") and the verdict form (by asking whether the conspiracy "involve[d] murder") failed to limit the jury’s special verdict finding to crimes that carry a life sentence like murder and instead expanded it to other crimes like attempted murder and conspiracy to murder. Second, the defendants argue that the jury instructions should have required the jury to find each defendant’s agreement and intent that the enterprise engage in murder or drug trafficking of a large quantity of drugs. Third, Wall individually argues that the court should have given a lesser-included offense instruction. Fourth, Mobley separately brings a sufficiency of the evidence challenge to the enhanced sentencing provision, arguing that the evidence was insufficient for the jury to find that he knew the conspiracy involved murder or the trafficking of over five kilograms of a controlled substance.

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1.

Mobley and Wall first argue that the district court's jury instructions and the special verdict form on the enhanced sentencing provision were overbroad and violated their due process rights under the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment. Because Apprendi requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[] and proved beyond a reasonable doubt," 530 U.S. at 490, the defendants argue that ambiguity in what the jury was asked to find means that they cannot be sentenced to more than twenty years in prison on their RICO conspiracy convictions. The argument goes that if the jury didn't find a section 1962(d) predicate for which the maximum penalty includes life imprisonment, section 1963(a) cannot be satisfied and their sentences beyond twenty years would violate Apprendi. Specifically, Mobley and Wall argue that the district court's jury instructions and special verdict form on the enhanced sentencing provision did not limit the jury's special finding to racketeering activities for which the maximum penalty is life imprisonment. Because the district court instructed the jury to consider whether the defendants had engaged in "acts involving murder"—which the district court defined to "include[] murder, attempted murder, and/or conspiracy to murder"—and the special verdict form contained the language "involve[d] murder," Mobley and Wall contend that this language invited the jury to consider inchoate crimes like attempted murder

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and conspiracy to murder, which do not carry a life sentence under Georgia law.

The government argues that Mobley and Wall invited this error because their proposed jury instructions also contained the "involving murder" language. In a letter under Federal Rule of Appellate Procedure 28(j), the government argues that the defendants’ challenge on this point is foreclosed by Caldwell.

We need not decide whether the defendants invited the error because their challenge is squarely foreclosed by Caldwell. In Caldwell, which involved a separate trial of some of Mobley and Wall’s coconspirators, we rejected a challenge to section 1963(a) jury instructions and a jury verdict form with the same challenged language. See 81 F. 4th at 1180–82. In doing so, we stated that this argument didn’t even implicate Apprendi because it was about the district court’s allegedly improper interpretation of the jury’s findings instead of a factual finding by the district court that increased the statutory range for a defendant’s sentence. See id. at 1181.

Wall and Mobley argue that Caldwell is distinguishable because the defendants there did not preserve the objection to the section 1963(a) instruction, but Wall and Mobley did. But the reasoning of Caldwell applies, especially because Caldwell doesn’t tie the key reasoning on this issue to the plain error review standard. See id. at 1181–82. It wasn’t a case in which we said that we couldn’t find plain error because of its high standard; we simply found no error.

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Mobley and Wall concede that the verdict form language in Caldwell is "identical" to the instructions here. In both cases, the jury verdict form asked the jury to find whether the conspiracy "involve[d] murder." Id. at 1181 (alteration in original) (emphasis omitted). And indeed, the key jury instructions that allegedly led to error on this issue were also identical in Caldwell because in both cases the district court defined "acts involving murder" to "include[] murder, attempted murder, and/or conspiracy to murder." Dist. Ct. Doc. 2905 at 17; see also Caldwell, 81 F. 4th at 1181.

We held in Caldwell that this exact language in the verdict form required the jury to find "that the conspiracy included actual, not inchoate, murder as part of its racketeering activities"; and we said that the district court defined "acts involving murder" in a different context such that there was no ambiguity in the instructions. 81 F. 4th at 1181. Here, just as in Caldwell, the district court did not instruct the jury that it could use a finding of inchoate murder to satisfy the enhanced sentencing provision.

The district court defined "acts involving murder" broadly to include inchoate murder only in its narration of what counts as a "pattern of racketeering activity." That context was about finding at least two predicate acts for a RICO conspiracy conviction. See id. But just as in Caldwell, "the district court never said that the jury should read the phrase 'involve murder' to mean 'involve acts involving murder.'" Id. Therefore, Caldwell decided the exact dispute at issue here. A close reading of the record combined with Caldwell's reasoning establishes that there was no error. Mobley and Wall's first challenge to the enhanced sentencing provision fails.

2.

Mobley and Wall also argue that the jury instructions on the sentencing element were erroneous because the jury was not instructed to find that Mobley and Wall had the specific intent to assist in murder or large-scale drug trafficking. Instead, the district court instructed the jury that "[f]or those racketeering activity types, you must unanimously decide whether the Defendant joined or remained in the RICO conspiracy knowing that the enterprise engaged in this type of racketeering activity." Mobley and Wall contend that "knowledge" that the enterprise was engaged in murder and drug trafficking was insufficient and argue that, to authorize a higher statutory sentence consistent with Apprendi, the jury needed to find intent. Put differently, Mobley and Wall argue that the section 1963(a) sentencing element instruction language needed to mirror the substantive conspiracy element instruction.

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which the maximum penalty includes life imprisonment." Id. (quoting 18 U.S.C. § 1963(a)) (citing Ga. Code § 16-5-1(e)(1)). And just as in Caldwell, "the verdict form asked whether the conspiracy 'involve[d] murder,' not 'acts involving murder.'" Id. (alteration in original). We held in Caldwell that "[t]he plain meaning of this phrase is that the question concerns what the district court defined as murder, not what the district court defined as acts involving murder." Id. Therefore, Caldwell decided the exact dispute at issue here. A close reading of the record combined with Caldwell's reasoning establishes that there was no error. Mobley and Wall's first challenge to the enhanced sentencing provision fails.

2.

Mobley and Wall also argue that the jury instructions on the sentencing element were erroneous because the jury was not instructed to find that Mobley and Wall had the specific intent to assist in murder or large-scale drug trafficking. Instead, the district court instructed the jury that "[f]or those racketeering activity types, you must unanimously decide whether the Defendant joined or remained in the RICO conspiracy knowing that the enterprise engaged in this type of racketeering activity." Mobley and Wall contend that "knowledge" that the enterprise was engaged in murder and drug trafficking was insufficient and argue that, to authorize a higher statutory sentence consistent with Apprendi, the jury needed to find intent. Put differently, Mobley and Wall argue that the section 1963(a) sentencing element instruction language needed to mirror the substantive conspiracy element instruction.

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The government responds that Mobley and Wall invited the error and waived or forfeited this challenge. And even if they can challenge the "knowing" language on appeal, the government contends there was no error.

Ultimately, even if Mobley and Wall didn't invite the error and the failure to instruct on intent were error, any error was harmless. Although a district court may not under Apprendi impose a statutorily enhanced sentence without a jury finding that is necessary to that sentence, "Apprendi errors do not fall within the limited class of 'fundamental constitutional errors that defy analysis by harmless error standards.'" United States v. Candelario, 240 F. 3d 1300, 1307 (11th Cir. 2001) (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)). We have held that an Apprendi error is harmless when "it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." United States v. Nealy, 232 F. 3d 825, 829 (11th Cir. 2000) (quoting Neder, 527 U.S. at 18). Applied to the enhanced sentencing provision, the error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the facts necessary for the enhanced sentencing provision to apply to the defendants, absent the alleged knowledge-versus-intent error.

The evidence here establishes that the Gangster Disciples enterprise included murder and that both Mobley and Wall entered into the RICO conspiracy and remained in it intending to commit murder. Many witnesses' testimony and gang literature established that murder was a key feature of the Gangster Disciples and was

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directed by gang leadership; it wasn't just random violence. For example, the rules of the gang include a list of death violations—infractions punishable by death. Witnesses testified that there were special units of the gang charged with committing murder on gang leadership's orders.

And the evidence established beyond a reasonable doubt that, as gang leaders, Mobley and Wall were part of the enterprise's murders. For example, Mobley headed the Hate Committee, which enforced gang rules and committed murders in Georgia. Mobley ordered the Hate Committee to kill J.H. As the government persuasively argues, Mobley's argument that he attempted murder but did not know and intend for the conspiracy to complete the crime of actual murder confounds logic. As for Wall, the evidence established beyond a reasonable doubt that he was also a leader of the gang and used his leadership position to incite the gunfight at Wings Cafe, which ended in the murder of three people. Witnesses testified that Wall went to the Wings Cafe seeking a deadly confrontation with his victims and that he instigated the shootings. For both Mobley and Wall, the evidence established beyond a reasonable doubt that each intended to murder or intended that others murder as part of the Gangster Disciples enterprise.

Furthermore, the evidence also established beyond a reasonable doubt that Mobley joined and remained in the conspiracy knowing and intending that the enterprise would engage in felony drug trafficking sufficient for a life sentence. Witnesses testified about the gang's drug trafficking scheme and specified that it

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trafficked kilograms of cocaine. And the evidence showed that drug trafficking was pervasive through the gang. Gang literature discussed cocaine trafficking and how to do it effectively. Junior members were trained on drug trafficking, and gang leadership organized drug trafficking across state lines. Mobley was no exception: cocaine and drug trafficking paraphernalia was seized from Mobley's residence during a search. Mobley argues that this is not enough to establish that he knew about the gang's drug trafficking in quantities exceeding five kilograms and that he did not agree to participate in the conspiracy as to drug trafficking. But because the evidence established that there was cocaine and drug trafficking paraphernalia in Mobley's house—even if the district court tossed the possession count—that Mobley was a gang leader, and that even low-level members of the gang were aware of the large-scale drug trafficking enterprise, the evidence established beyond a reasonable doubt that Mobley joined and remained in the conspiracy intending to commit drug trafficking that supported a life sentence in furtherance of the Gangster Disciples enterprise.

Because "it is clear beyond a reasonable doubt that a rational jury would have found," absent the alleged knowledge-versus-intent error, that Mobley and Wall had committed a predicate racketeering act that could receive a life sentence as part of their respective RICO conspiracy convictions, any error was harmless—not reversible error. Nealy, 232 F. 3d at 829 (quoting Neder, 527 U.S. at 18).

26 20-10730