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United States v. Smith

United States Court of Appeals, Fourth Circuit

March 27, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MICHAEL SMITH, JR., a/k/a Mikey, a/k/a Lil Mike, a/k/a Mik, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARK BAZEMORE, a/k/a Uncle Mark, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
TIMOTHY HURTT, a/k/a Uncle Tim, a/k/a Tim, Defendant-Appellant.

          Argued: October 30, 2018

          Appeals from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:14-cr-00479-JKB-8; 1:14-cr-00479-JKB-11; 1:14-cr-00479-JKB-17)

         ARGUED:

          Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA, Ellicott City, Maryland; Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellants.

         David Daniel Metcalf, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          Harry D. McKnett, LAW OFFICE OF HARRY D. MCKNETT, LLC, Columbia, Maryland, for Appellant

          Michael Smith, Jr. Stephen M. Schenning, Acting United States Attorney, James Wallner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.

          RICHARDSON, CIRCUIT JUDGE

         Defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt participated in the illegal activities of a Baltimore street and prison gang known as the Black Guerrilla Family. Their involvement in the gang's drug dealing and acts of violence led to their convictions. The Defendants seek to reverse those convictions for two main reasons. First, they argue the district court improperly handled the fears some jurors expressed to the court after learning of this gang's predilection for violence and retaliation. Second, they claim the district court should have excluded an FBI agent's expert testimony decoding intercepted calls. We reject their challenges.

         I.

         A. Factual Background

         Bazemore, Smith, and Hurtt were high-ranking members of the Black Guerilla Family, a criminal gang founded in the 1960s in California's San Quentin State Prison. The gang moved across the country, establishing itself in Maryland's prison system before expanding to the streets of Baltimore.

         The gang organized itself into subsets called "regimes" that controlled the drug trade in Maryland state prisons and in dozens of Baltimore neighborhoods. Each regime was overseen by a "bushman," often referred to as "Uncle" or "Unc." In leading a regime, the bushman collected dues, settled disputes, and enforced protocol by ordering sanctions ranging from fines to death against members who broke the gang's many rules.[1]

         Troubled by the gang's criminal activities, the FBI undertook a broad investigation into the Black Guerilla Family's Baltimore operations. They wiretapped the phone of the gang's city-wide commander, Timothy Michael Gray, along with dozens of phones used by other gang members (including Defendants Bazemore and Hurtt). The FBI's investigation exposed the gang's sprawling drug business, documenting forty Baltimore locations where the gang distributed heroin and cocaine. With these drug profits at stake, the gang often turned to violence to protect its territory.

         Along with violently protecting their drug trade, the gang's leaders had a penchant for killing their subordinates that broke protocol. For instance, Bazemore ordered the murders of members George Nealy and Ronald Hall. Of all the gang's violence, the attempted murder of Hall bears most directly on this appeal. On March 10, 2014, Bazemore ordered gang member William "Boosie" Harrington to kill Hall for allegedly lying to the gang's leadership. Shortly before the shooting, Bazemore and Harrington spoke twice by telephone. The first call took place at 3:50 PM when Harrington asked to confirm the order:

Bazemore: "Yo."
Harrington: "Hey, Unc, what's up baby?
Bazemore: "What's good?"
Harrington: "Listen to me real carefully."
Bazemore: "Uh huh."
Harrington: "I'm around Lil Shorty, you heard me?"
Bazemore: "Yeah."
Harrington: "The one you always wanted me to holler at."
Bazemore: "Right."
Harrington: "I'm out Lakeland."
Bazemore: "Right."
Harrington: "Is that special light still good, good?" . . .
Harrington: "I got him right here."
Bazemore: "Matter fact, don't worry about it, don't worry about it. I'm holler at you on the close up about that one."

S.J.A. 122. One minute later, Harrington again called Bazemore and said, "Unc I'm in his bushes. Like right now, it'd be easy and I'd be out of here, you feel me?" S.J.A. 124. Bazemore replied with the authorization: "Alright, so go ahead then. Go ahead and do it then." Id.

         FBI Special Agent Mark James monitored these wiretapped conversations in realtime. Understanding Bazemore's order to kill, Agent James alerted local police that an act of violence was about to occur in South Baltimore's Lakeland neighborhood. Baltimore Police arrived at the scene to find Hall with gunshot wounds to his arms and torso. After he was rushed to the hospital, Hall survived.

         Three weeks after shooting Hall, Harrington was arrested and detained by state authorities for attempted murder. In jail, Harrington faced violent retaliation from other incarcerated Black Guerilla Family members for shooting their fellow gang member, Hall. In hopes of avoiding attack, Harrington placed several calls from a jail telephone seeking to "get in touch with Uncle Mark" to prove he acted with Mark Bazemore's go-ahead. S.J.A. 067. When Harrington finally reached Bazemore, he passed the phone to a fellow inmate after telling Bazemore that "[t]his [is] another good soldier here that wanted to holler at you." J.A. 1013. Bazemore then confirmed to the other inmate that he authorized Harrington to shoot Hall: "What Boosie [Harrington] did to him came straight from the head. It came from me. I told him do that and he can do that." J.A. 1014.

         B. The Trial

         The Defendants, along with 15 other members of the gang, faced federal charges for conspiring to participate in a racketeering enterprise (18 U.S.C. § 1962(d)) and for conspiring to distribute drugs (21 U.S.C. § 846).[2] Bazemore was also charged with attempted murder and conspiracy to commit murder in aid of racketeering (18 U.S.C. ยง 1959(a)(5)). And Bazemore and Hurtt were charged with conspiring to use a firearm in relation to the racketeering and drug ...


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