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;
Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA,
Ellicott City, Maryland; Charles Burnham, BURNHAM &
GOROKHOV PLLC, Washington, D.C., for Appellants.
Daniel Metcalf, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
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,
NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.
RICHARDSON, CIRCUIT JUDGE
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.
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.
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
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.
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:
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
Harrington: "The one you always wanted me to holler
Harrington: "I'm out Lakeland."
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.
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.
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.
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). Bazemore was also charged with attempted
murder and conspiracy to commit murder in aid of racketeering
(18 U.S.C. § 1959(a)(5)). And Bazemore and Hurtt were
charged with conspiring to use a firearm in relation to the
racketeering and drug ...