VICAR Attempted Murder (Virginia) Requires Proof of Specific Intent to Kill; Shooting into a Residence Without Evidence of Targeted Occupancy Is Insufficient

1. Introduction

In United States v. Jenkins, United States v. Brooks, and United States v. Newsome (consolidated appeals), the Fourth Circuit reviewed convictions and sentences arising from retaliatory violence connected to the killing of Brandon Leonard in Franklin, Virginia. The Government’s theory centered on an association-in-fact racketeering enterprise described at trial as “Brandon’s crew,” a loose but enduring network tied to drug trafficking, shared firearms, and violent enforcement against rivals associated with the Crips (“the 00s”).

The key appellate issues included: (i) whether the evidence sufficed to prove a VICAR/RICO “enterprise”; (ii) whether a later attempted killing remained attributable to that enterprise despite a period of “quiescence”; (iii) whether firing bullets into a residence supported VICAR attempted murder predicated on Virginia attempted murder (i.e., whether the shooter had the specific intent to kill); and (iv) whether recorded jail calls seeking false alibis constituted witness tampering by “corrupt persuasion.”

2. Summary of the Opinion

  • Enterprise / VICAR conspiracy (Count I): Affirmed as to all three defendants; sufficient evidence supported an association-in-fact enterprise.
  • Jenkins VICAR attempted murder (Count IV): Affirmed; the enterprise could persist through “spurts” and “periods of quiescence.”
  • Brooks VICAR attempted murder (Count II) and related § 924(c) firearm (Count III): Reversed; evidence did not establish Virginia attempted murder’s specific intent to kill. Sentence vacated and remanded for resentencing.
  • Newsome witness tampering (Count IX) and sentence: Affirmed; requesting a witness to lie is “corrupt persuasion,” and the sentence was procedurally and substantively reasonable.

3. Analysis

3.1. Precedents Cited

A. Sufficiency review and deference to the jury

The court’s framework for reviewing convictions was anchored in conventional sufficiency doctrine: view evidence in the Government’s favor and ask whether “any rational trier of fact” could find guilt beyond a reasonable doubt. The panel relied on:

  • United States v. Darosa (standard of viewing evidence in light most favorable to Government).
  • United States v. Fuertes (de novo review of Rule 29 denial; reversal only when failure is clear).
  • United States v. Robinson (heavy burden; do not overturn supported verdict as “unpalatable”).
  • Bufkin v. Collins and Jackson v. Virginia (rational-juror test; appellate court does not reweigh).

This deference drove the affirmances (Counts I, IV, IX), but also framed why reversal of Brooks’ attempted-murder conviction was notable: even under a “heavy burden,” the record could not support the legally required inference of specific intent.

B. What counts as a VICAR/RICO “enterprise”

To resolve the enterprise challenges, the court drew from the core Supreme Court enterprise cases:

  • United States v. Keene (VICAR elements; “purpose” to maintain/increase position need not be sole motive).
  • United States v. Turkette (enterprise proved by ongoing organization and functioning as continuing unit).
  • Boyle v. United States (association-in-fact must have purpose, relationships, and longevity; no requirement of hierarchy, dues, initiation rites, etc.).

The court also used Fourth Circuit authority counseling breadth and guarding against a too-narrow “enterprise” definition: United States v. Palacios and United States v. Savage. It cited United States v. Pinson to distinguish mere parallel, separate criminal ventures from a common-purpose enterprise. It invoked United States v. Griffin for the “commonality of purpose” formulation, and Cedric Kushner Promotions, Ltd. v. King to emphasize participation in the enterprise’s affairs, not merely one’s own.

On the “relationships” and continuity components, the panel cited United States v. Tillett and, illustratively, United States v. Harris. For longevity comparisons, it cited Amazon.com, Inc. v. WDC Hldgs. LLC, United States v. Garcia, and United States v. Fattah.

C. “Quiescence” and enterprise continuity

Jenkins argued the enterprise could not reach a February 2019 shooting because Brandon had been dead for months and members were dispersed. The panel treated Boyle v. United States as controlling on this point: an enterprise may operate in “spurts” and does not dissolve legally just because it was inactive for a time. That precedent allowed the jury to link the later retaliation attempt to the earlier shared purpose and relationships.

D. Virginia attempted murder as the VICAR predicate: specific intent controls

For Brooks, the panel’s reversal turned on Virginia law defining attempted murder. The court cited:

  • United States v. Simmons (use state law to define the cross-referenced predicate offense).
  • United States v. Lassiter and Commonwealth v. Herring (Virginia attempted murder requires specific intent to kill plus overt act).
  • Winston v. Commonwealth (specific intent means intent to accomplish the precise criminal act charged).
  • Hargrave and Thacker v. Commonwealth (deadly weapon use alone does not prove intent; intent is as necessary as the act; classic arson/attempted-murder illustration requiring knowledge and purpose to kill).
  • Hancock v. Commonwealth (intent may be inferred from circumstances; factfinder may infer intent as to immediate, direct, necessary consequences).
  • Coles v. Commonwealth, Bell v. Commonwealth, and Haywood v. Commonwealth (examples and framing: question is whether the defendant acted for the unequivocal purpose of murdering someone).
  • Secret v. Commonwealth (affirmance where the defendant had “full knowledge” the residence was occupied).
  • Bryant v. Commonwealth and Ellis v. Commonwealth (contrast with Va. Code § 18.2-279 shooting at an occupied dwelling, which lacks an intent element).

These authorities collectively supplied the limiting rule the Fourth Circuit applied: without evidence tying the shooting to a purpose to kill a person (including evidence of knowledge of occupancy or a targeted victim’s presence), firing into a structure does not establish attempted murder’s specific intent.

E. Witness tampering by “corrupt persuasion”

For Newsome’s witness tampering, the court relied on:

  • United States v. Arrington (sufficiency review; do not reweigh credibility).
  • United States v. Sanders (instructions read as a whole).
  • United States v. Vann (indictments often plead conjunctively though statutes are disjunctive).
  • United States v. Edlind and Arthur Andersen LLP v. United States (meaning of “corrupt persuasion”; distinguishes innocent persuasion from wrongdoing; asking a witness to lie is paradigmatic corrupt persuasion).

F. Sentencing review

For Newsome’s sentence, the panel applied: United States v. Elboghdady (abuse-of-discretion review; factual clear error/legal de novo), United States v. Friend (procedural then substantive reasonableness; presumption of reasonableness for below-Guidelines), and addressed waiver/plain error principles via United States v. Fernandez-Sanchez and United States v. Knight.

3.2. Legal Reasoning

A. Enterprise: an informal crew can qualify

The defendants’ principal argument—that “Brandon’s crew” lacked traditional gang features (hierarchy, dues, initiation rites, rules)—ran into Boyle v. United States, which expressly rejects those formalities as requirements. The Fourth Circuit upheld the jury’s enterprise finding based on:

  • Purpose: controlling and profiting from Franklin’s drug trade; allowing rivals to operate only with permission (“tithes”); violent enforcement and retaliation.
  • Relationships: recurring association at the Railroad; shared suppliers; shared firearms; recurring coordination in moments of conflict.
  • Longevity: activity from roughly 2012 through at least February 2019, with identifiable “spurts” of violence tied to the same rivalry and control objectives.

The opinion includes an important cautionary note (in footnote 6): it should not be read to mean “mere associations of friends” who separately commit crimes automatically form an enterprise—echoing Boyle v. United States and United States v. Pinson—but on this record the jury could rationally find coordinated enterprise affairs.

B. Quiescence does not end the enterprise (Jenkins)

Jenkins’ theory that a 14-month lull necessarily ended the enterprise was rejected as inconsistent with Boyle v. United States. The court treated continuity as a fact question for the jury and held the record supported continuity: the same retaliation motive, the same rivalry, and a core relationship (EJ and Jenkins) acting again in service of the earlier enterprise purpose.

C. The pivotal holding: Virginia attempted murder requires proof of specific intent to kill (Brooks)

The court’s most consequential doctrinal move was applying Virginia’s specific-intent requirement rigorously to a VICAR attempted-murder predicate. Even though Brooks fired three shots into a residence shortly after the group mobilized for “revenge,” the panel found an evidentiary gap:

  • No evidence Brooks knew anyone was inside the house when he fired.
  • No evidence the alleged rival (McNear) was present there then (or regularly present in a relevant time frame).
  • The facts supported motive (retaliation) and dangerousness, but not the specific intent to kill required by Virginia attempted murder.

The court used Thacker v. Commonwealth as the conceptual anchor: generalized malevolence or conduct that could have killed someone is not enough for attempted murder; the actor must have a specific intent to kill at the moment of the act. It contrasted situations like Secret v. Commonwealth, where the defendant had “full knowledge” the structure was occupied. It also emphasized that interpreting these facts as attempted murder would effectively collapse Va. Code § 18.2-279 (shooting at an occupied dwelling) into attempted murder, eliminating the intent distinction recognized by Bryant v. Commonwealth and Ellis v. Commonwealth.

Because Count III’s § 924(c) conviction depended solely on Count II as the “crime of violence,” the reversal of the attempted-murder predicate required reversal of the firearm count as well.

D. Corrupt persuasion is enough for witness tampering (Newsome)

Newsome’s arguments failed largely because § 1512(b)(1) is disjunctive: intimidation/threats are not required if the Government proves “corrupt persuasion.” Under United States v. Edlind and Arthur Andersen LLP v. United States, asking someone to provide false testimony is classic corrupt persuasion. The recorded call and Bynum’s testimony (credited by the jury under United States v. Arrington) sufficed.

The jury-instruction argument failed under United States v. Sanders and United States v. Vann: indictments often charge conjunctively, while the statute permits conviction on any one disjunctive means, and the instructions as a whole accurately conveyed the law.

3.3. Impact

A. Tighter proof demands for VICAR attempted murder predicated on Virginia law

The Brooks reversal is a clear signal that, when the predicate attempted murder offense is defined by Virginia law, prosecutors must produce evidence supporting a factfinder’s inference of specific intent to kill—not merely retaliation motive, reckless endangerment, or the inherent lethality of shooting into a building. Expect future VICAR and non-VICAR attempted-murder prosecutions to emphasize:

  • Knowledge of occupancy (e.g., admissions, surveillance, witness testimony, lights/vehicles/observable presence).
  • Targeting a person (shots directed at a known location of a victim, known schedule, or direct confrontation).
  • Statements indicating an intent to kill rather than to intimidate, vandalize, or “send a message.”

B. Charging and theory selection

The opinion highlights an implicit charging consequence: conduct like this may fit other state predicates (e.g., offenses akin to shooting at an occupied dwelling, malicious wounding, or other violent crimes), but it does not automatically satisfy attempted murder. Federal prosecutors may respond by (i) selecting alternative predicates where available, and/or (ii) building stronger proof of targeted intent.

C. § 924(c) fragility when tethered to a single predicate

Because Count III fell with Count II, the case underscores a structural risk: when § 924(c) is predicated on a single crime of violence, failure of that predicate—whether for legal classification or evidentiary insufficiency—requires reversal of the firearm conviction.

D. Enterprise findings remain broadly available in informal-gang cases

On the other side of the ledger, the court’s enterprise analysis continues the post-Boyle v. United States trend: informal and loosely organized groups can satisfy enterprise structure if evidence shows common purpose, relational cohesion, and longevity. The court’s express “quiescence” discussion also strengthens the Government’s ability to link later retaliatory incidents to an earlier enterprise where the same core relationships and purpose re-emerge.

E. Witness tampering: recorded “alibi requests” are powerful evidence

The affirmance on Count IX reinforces that asking a witness to lie—especially on recorded jail calls—readily meets “corrupt persuasion,” even without threats or intimidation. It also shows that efforts to evade monitoring (e.g., using another inmate’s identification number) can strengthen the inference of consciousness of wrongdoing.

4. Complex Concepts Simplified

  • VICAR (18 U.S.C. § 1959): A federal statute punishing certain violent crimes committed to gain, keep, or increase status in a racketeering enterprise.
  • Association-in-fact “enterprise”: A group that functions as a continuing unit with a shared purpose and relationships over enough time to pursue that purpose (Boyle v. United States). It need not look like a formal organization.
  • Specific intent (attempted murder): Not just doing a dangerous act, but doing it with the conscious objective to kill. Under Virginia law, the Government must prove the intent to kill plus an overt act in furtherance (Thacker v. Commonwealth; Commonwealth v. Herring).
  • Rule 29 motion: A defendant’s request for a judgment of acquittal because the evidence is insufficient as a matter of law.
  • § 924(c): A firearm offense that requires, among other things, a qualifying predicate “crime of violence.” If the predicate conviction is reversed, the § 924(c) conviction can collapse with it (as happened to Brooks).
  • Corrupt persuasion (witness tampering): Persuading someone to provide false or misleading testimony, done knowingly and wrongfully (United States v. Edlind; Arthur Andersen LLP v. United States).

5. Conclusion

The Fourth Circuit’s decision largely upholds broad enterprise principles: informal crews can qualify as VICAR/RICO enterprises, and enterprises can persist through “periods of quiescence” under Boyle v. United States. But the court simultaneously imposed a meaningful evidentiary limit on VICAR attempted murder predicated on Virginia law: shooting into a residence, without proof of a contemporaneous specific intent to kill an occupant, is not enough. That holding not only reversed Brooks’ attempted-murder conviction but also toppled the dependent § 924(c) count and required resentencing, shaping how future prosecutors must prove (and charge) attempted murder in retaliation/enterprise-violence cases.