VICAR Attempted Murder Requires State-Law Specific Intent to Kill: Shooting into a Residence, Without Evidence of Known Occupancy, Is Insufficient

1. Introduction

In this published consolidated appeal (Nos. 24-4220, 24-4221, 24-4236), the Fourth Circuit reviewed convictions and sentences imposed on Ronald Damione Jenkins, Jr., Japree Lortez Brooks, and Malik Trevonte Newsome arising from violent retaliatory acts following the killing of Brandon Leonard in Franklin, Virginia. The Government tried the case on the theory that a loose association dubbed “Brandon’s crew” functioned as an association-in-fact racketeering enterprise whose members controlled drug trafficking in Franklin and used violence to maintain that control and retaliate against perceived rivals affiliated with the “00s” (Crips-associated).

The appeals raised three central issue clusters: (1) whether “Brandon’s crew” satisfied the VICAR/RICO “enterprise” element; (2) whether Brooks’ shooting into a residence could support a VICAR attempted murder predicate under Virginia attempted-murder law (and thus support a related § 924(c) firearm count); and (3) whether Newsome’s efforts to solicit a false alibi constituted witness tampering by “corruptly persuad[ing]” under 18 U.S.C. § 1512(b)(1).

2. Summary of the Opinion

  • Enterprise proof upheld: The court held the evidence was sufficient for a rational jury to find “Brandon’s crew” was an association-in-fact enterprise under Boyle v. United States, with a common purpose (control/profit from Franklin drug trafficking and dominance), relationships (a continuing unit centered on the Railroad location and shared suppliers/firearms), and longevity (2012 through at least February 2019).
  • Jenkins’ VICAR attempted murder upheld: The February 2019 attempted murder count remained tied to the same enterprise despite a period of “quiescence,” consistent with Boyle.
  • Brooks’ VICAR attempted murder and § 924(c) reversed: The Government failed to prove the Virginia-law element of specific intent to kill for attempted murder where Brooks fired three rounds into a residence without evidence he knew or had reason to know anyone was inside or in the line of fire. The related § 924(c) count fell with it.
  • Newsome’s witness tampering conviction affirmed: Asking a witness to provide a false alibi constituted “corrupt persuasion,” and the jury instructions were not defective when read as a whole.
  • Sentencing: Newsome’s sentence was affirmed as procedurally and substantively reasonable; Brooks’ sentence was vacated and remanded for resentencing after entry of judgments of acquittal on the reversed counts.

3. Analysis

A. Precedents Cited

1) Sufficiency review framework

  • United States v. Darosa (light most favorable to Government) framed how the appellate court approached contested facts.
  • United States v. Fuertes (de novo review; reversal only when “failure is clear”) and United States v. Robinson (“heavy burden”; no reversal because an alternative verdict seems preferable) reinforced a strongly deferential posture to jury verdicts.
  • Bufkin v. Collins and Jackson v. Virginia supplied the controlling constitutional test: whether “any rational trier of fact” could find the elements beyond a reasonable doubt.

2) Defining a VICAR/RICO “enterprise”

  • United States v. Keene provided the elements of a VICAR offense (including enterprise and “purpose” to maintain or increase position).
  • United States v. Turkette supplied the foundational enterprise concept: an ongoing organization (formal or informal) functioning as a continuing unit.
  • Boyle v. United States was the opinion’s centerpiece for association-in-fact structure, requiring only three “structural features”: purpose, relationships, and longevity—and rejecting any requirement for hierarchy, dues, initiation rites, or rigid roles.
  • United States v. Palacios echoed the caution against reading “enterprise” too narrowly; United States v. Savage reinforced the lens favoring the prosecution.
  • United States v. Pinson (distinguishing separate ventures from a common purpose) informed the court’s caveat that not every group of friends engaged in crime is an enterprise—while still finding the evidence here sufficient.
  • United States v. Griffin and Cedric Kushner Promotions, Ltd. v. King supported the conclusion that defendants participated in the enterprise’s affairs, not merely their own.
  • United States v. Tillett and United States v. Harris supported the inference of “relationships” through repeated interactions and common gathering locations.
  • On longevity comparisons, the court cited Amazon.com, Inc. v. WDC Hldgs. LLC, United States v. Garcia, and United States v. Fattah to show multi-year conduct (and similar time spans) readily satisfy the longevity feature.

3) “Quiescence” and enterprise continuity

  • Boyle v. United States directly answered Jenkins’ argument that a 14-month lull dissolved the enterprise: enterprises may act in “spurts” with “periods of quiescence,” and that does not exempt them from RICO/VICAR treatment.

4) VICAR attempted murder predicated on state law (Virginia)

  • United States v. Simmons anchored the method: when the indictment cross-references a state-law predicate (here, Virginia attempted murder), the court looks to state law to define that offense’s elements.
  • United States v. Lassiter, Commonwealth v. Herring, and Winston v. Commonwealthspecific intent to kill, and (2) an overt act in furtherance; and defined “specific intent” as intent to accomplish the precise charged act.
  • Hargrave and Thacker v. CommonwealthThacker’s classic arson analogy to illustrate that even dangerous conduct is not necessarily an “attempt to murder” absent a specific intent to kill.
  • Hancock v. Commonwealth
  • Coles v. CommonwealthBell v. CommonwealthHaywood v. Commonwealth
  • Secret v. Commonwealth
  • Bryant v. Commonwealth and Ellis v. Commonwealth

5) Witness tampering and “corrupt persuasion” under § 1512(b)(1)

  • United States v. Arrington reiterated the limited role of appellate courts in reweighing credibility; Bynum’s testimony could suffice.
  • United States v. Sanders supplied the rule that jury instructions are reviewed in their totality, not by isolating one line.
  • United States v. Vann (en banc) explained why indictments often plead statutory alternatives conjunctively even when the statute is disjunctive; this defeated Newsome’s claim that the jury had to find intimidation, threats, and corrupt persuasion all at once.
  • United States v. Edlind and Arthur Andersen LLP v. United States

6) Sentencing review

  • United States v. Elboghdady (standards for procedural/substantive review), United States v. Friend (totality-of-circumstances; presumption of reasonableness for within/below-Guidelines sentences; deference to district court’s multifaceted assessment) supported affirmance of Newsome’s sentence.
  • United States v. Fernandez-Sanchez, United States v. Knight, and Fed. R. Crim. P. 52(b) appeared in the court’s discussion of preservation/plain error regarding a briefly asserted Guidelines enhancement issue.

B. Legal Reasoning

1) The “enterprise” holding: breadth, not formal gang markers

The court’s enterprise analysis is a straightforward but consequential application of Boyle v. United States. Defendants argued that the Government failed to prove classic gang features (hierarchy, dues, initiation, rules) and that the Railroad was merely social. The Fourth Circuit rejected that framing as inconsistent with Boyle: the statute reaches informal, unsophisticated groups so long as evidence supports purpose, relationships, and longevity.

Crucially, the court identified record evidence tying “Brandon’s crew” to an economically and territorially intelligible objective: controlling Franklin’s drug market, leveraging shared sources (e.g., a Blood member supplier introduced by Brooks), shared infrastructure (the Railroad as hub), and shared instrumentalities (firearms “always around” for use). The “tithes” paid by the rival 00s to operate in Franklin supported the inference of territorial control—i.e., the enterprise regulated competition, not merely individual entrepreneurship.

The court also inserted an important limiting footnote (its own caution) that the opinion should not be read to transform mere friendship plus individual illicit acts into an enterprise, invoking Boyle’s own warning and United States v. Pinson. But the court held the jury could find more than parallel criminality here: the same group repeatedly functioned as a unit—before and after Brandon’s death—coordinating retaliatory violence consistent with maintaining dominance.

2) “Quiescence” does not dissolve an enterprise

For Jenkins’ February 2019 VICAR attempted murder, the court treated the time gap after December 2017 violence as a classic Boyle problem: periods of inactivity do not negate continuity. The key was whether the jury could still find the association-in-fact features present by February 2019. The court held it could, emphasizing the reactivation of coordinated retaliation after social-media taunts and the persistence of the same core relationships and purpose.

3) The decisive doctrinal move: attempted murder under Virginia law requires specific intent to kill

The reversal for Brooks turns on a tight doctrinal constraint: because the VICAR attempt predicate incorporated Virginia attempted murder, the Government had to prove Virginia’s specific intent to kill. The court accepted that Brooks committed a dangerous, retaliatory shooting—three rounds into a residence—but held the evidence did not permit the inference that Brooks fired with the “unequivocal purpose” of killing an occupant.

The court’s reasoning is structurally careful:

  • Deadly weapon use is not enough: Citing Hargrave and Thacker, the court emphasized Virginia’s insistence that intent is a separate factual element.
  • Knowledge-of-occupancy matters: The opinion found no evidence Brooks knew or had reason to know anyone was inside or in the line of fire. The Government’s reliance on the early hour and the fact that it was a house was deemed insufficient to bridge the gap from “could be occupied” to “fired intending to kill.”
  • Mismatch between target and location: Even if Brooks intended to kill McNear generally, the record did not place McNear at that residence, undermining the inference of an intent-to-kill-by-this-act.
  • Offense-boundary protection: By pointing to Va. Code § 18.2-279 (shooting at an occupied dwelling) and citing Bryant and Ellis, the court stressed that turning this conduct into attempted murder would effectively erase the statutory distinction between endangerment/shooting-at-dwelling and an intent-to-kill attempt.

Once Count II failed, Count III (§ 924(c)) necessarily failed because it was predicated solely on the now-vacated “crime of violence.”

4) Witness tampering: “corrupt persuasion” satisfied by soliciting a lie

On Count IX, the Fourth Circuit treated the case as a textbook application of “corrupt persuasion” under United States v. Edlind and Arthur Andersen LLP v. United States. Bynum’s testimony—corroborated by a recorded call and evidence Newsome used another inmate’s identification to place it—supported that Newsome sought false testimony for his benefit. The court further rejected the jury-instruction attack by applying United States v. Sanders and United States v. Vann: charging language may be conjunctive while the statute is disjunctive, and the instructions as a whole accurately stated the law.

C. Impact

1) A meaningful evidentiary limit on VICAR “attempt” predicates incorporating state law

The most significant forward-looking consequence is the court’s insistence that federal VICAR attempt charges remain tethered to the incorporated state-law attempt elements. Where the predicate is Virginia attempted murder, prosecutors must present evidence supporting a defendant’s specific intent to kill at the time of the act, not merely proof of dangerous retaliatory conduct. This is especially salient in “drive-by” or “shooting at a structure” cases: without proof of known occupancy (or other facts tightly linking the shooting to an intent to kill a person), the attempted-murder predicate is vulnerable.

2) Enterprise proof remains broad and fact-driven

The enterprise holding continues the Fourth Circuit’s willingness—consistent with Boyle—to uphold enterprise findings for informal street groups when evidence shows a shared criminal marketplace objective, repeated interaction, shared resources (like firearms), and a continuing unit. Defendants should expect that absence of “formal gang” trappings will rarely be dispositive if the Government proves purpose/relationships/longevity.

3) Continuity can survive time gaps

The reliance on Boyle’s “spurts of activity” language underscores that a meaningful lull will not, by itself, defeat enterprise continuity. Future litigants will likely shift to arguing evidentiary discontinuity (changed membership/purpose/relationships), not mere elapsed time.

4) Witness-tampering prosecutions: recorded “alibi requests” are high-risk conduct

The court’s application of Edlind signals that asking someone to “cover” with an untrue alibi is quintessential “corrupt persuasion,” even without threats or intimidation. Defendants cannot rely on the absence of coercion when the proof shows a request for false testimony.

4. Complex Concepts Simplified

  • VICAR: A federal statute punishing violent crimes (including attempted murder and conspiracy) committed to maintain or increase one’s position in a racketeering enterprise.
  • Association-in-fact enterprise: An informal group can be an “enterprise” if it has a shared purpose, relationships among members, and lasts long enough to pursue that purpose (Boyle v. United States).
  • Quiescence: A pause in criminal activity. Under Boyle, pauses do not automatically end an enterprise.
  • Specific intent to kill (Virginia attempted murder): The defendant must have actually intended to kill (not merely act dangerously). Shooting a gun is not, by itself, proof of that intent (Thacker v. Commonwealth).
  • § 924(c) predicate dependence: If a firearm count is charged as being “in furtherance of” a particular crime of violence, and that predicate crime is vacated, the firearm conviction usually falls with it.
  • Corrupt persuasion: Knowingly trying to get someone to give false or misleading testimony—such as asking for a fake alibi—qualifies, even without threats (United States v. Edlind; Arthur Andersen LLP v. United States).
  • Conjunctive indictment vs. disjunctive statute: Prosecutors often list statutory alternatives with “and” in the indictment even though proving any one alternative suffices; this is permissible (United States v. Vann).

5. Conclusion

The Fourth Circuit’s opinion largely affirms the Government’s VICAR theory of an informal, drug-market-oriented enterprise and reiterates that such enterprises need not resemble formal gangs, nor must they act continuously without pauses. The opinion’s key doctrinal contribution is its reversal of Brooks’ VICAR attempted murder and related § 924(c) conviction: when a VICAR attempt predicate is defined by Virginia attempted-murder law, the Government must prove specific intent to kill, and shooting into a residence without evidence of known occupancy (or equivalent intent-linking facts) is insufficient. The decision thus both broadens practical acceptance of informal enterprise proof and tightens the evidentiary discipline required for attempt-based VICAR predicates grounded in state law.