Waiver and Plain-Error Limits on Remmer Challenges to Suspected Jury Intimidation (Sixth Circuit)

1. Introduction

United States v. Courtland Springfield (consolidated with appeals by Tomarcus Baskerville and Thomas Earl Smith) arises from a violent gang conflict in the Memphis suburbs involving the “Junk Yard Dogs,” an offshoot of the Almighty Vice Lord Nation. After a four-week trial featuring extensive cooperating-witness testimony and phone evidence, a jury returned a split verdict: it convicted Baskerville, Smith, and Springfield of racketeering conspiracy and related violent and firearm offenses, while acquitting a fourth trial defendant (Hobson) on all counts.

The appeals presented (i) sufficiency-of-the-evidence challenges to VICAR and RICO conspiracy convictions; (ii) Sixth Amendment claims premised on suspected jury intimidation during deliberations; (iii) evidentiary challenges to summary phone charts; and (iv) a conceded sentencing error under Alleyne v. United States.

2. Summary of the Opinion

The Sixth Circuit affirmed all convictions for Baskerville, Smith, and Springfield. It rejected Baskerville’s insufficiency challenge to VICAR murder/attempted murder counts and rejected Smith’s insufficiency challenge to RICO conspiracy. It further held that the district court’s handling of suspected jury intimidation did not violate the Sixth Amendment, emphasizing waiver/forfeiture principles and the discretion afforded trial courts in tailoring an investigation. The court also upheld admission of government-created phone “summary charts.” Finally, consistent with the Government’s concession, the court vacated Smith’s sentence and remanded because the district court imposed a 10-year mandatory minimum under 18 U.S.C. § 924(c)(1)(A)(iii) even though the jury did not find discharge.

3. Analysis

3.1. Precedents Cited

A. Sufficiency of the Evidence (deferential review)

Jackson v. Virginia (standard: whether any rational trier of fact could find elements beyond a reasonable doubt; evidence viewed in government’s favor).
United States v. Wagner, United States v. Gardner, United States v. Davis, United States v. Brown (Sixth Circuit articulation of deferential posture and credibility resolution in favor of verdict).

B. VICAR elements and liability without presence

United States v. Woods (elements for violent crime in aid of racketeering).
United States v. Zemlyansky (Second Circuit; proposition that leadership cannot “buffer” responsibility by routing commands through lower tiers).
United States v. Latouf (credibility attacks are not sufficiency challenges).

C. RICO conspiracy: agreement standard and predicates

United States v. Hills (for conspiracy, defendant need only agree that at least one member will commit two predicate acts).
United States v. Householder (agreement/intent to further an endeavor that would result in predicate offenses).
Salinas v. United States, United States v. Gardiner (agreement may be inferred; no requirement that conspirator personally commit predicates).
United States v. Tisdale, United States v. Ledbetter (gang membership/rank and participation can support inference of intent to further enterprise).
United States v. Mari, Griffin v. United States, Sochor v. Florida (general verdict sustained if one valid evidentiary ground supports it).

D. Jury intimidation / external influence: investigation, waiver, and standards

Remmer v. United States (external contacts implicate impartiality; investigation should probe circumstances/impact/prejudice).
Skilling v. United States, McDonough Power Equip., Inc. v. Greenwood, Treesh v. Bagley (impartial jury principles; external influence concerns).
United States v. Pennell, United States v. Mack (external influence inquiries; caution against exacerbating bias by highlighting contact).
United States v. Rigsby, United States v. Shackelford (scope of inquiry reviewed for abuse of discretion).
United States v. Kechego, United States v. Herndon, Smith v. Phillips (meaningful opportunity to prove bias; hearing as remedy).
United States v. Olano (waiver vs. forfeiture; plain error; note that prejudice is not presumed as a default).
United States v. Perry, United States v. Vining (cannot agree to a course below and complain on appeal—waiver).
United States v. Corrado, United States v. Davis, United States v. Lanier (examples where failure to meaningfully investigate warranted remand/new trial; distinguished here).
United States v. Taylor, United States v. Richardson (trial-court discretion; “bright-line” rules disfavored; plain error demanding).
United States v. Whitson, United States v. Tellez, United States v. Vonner (plain-error rigor).
United States v. Owens, United States v. LaVictor, United States v. Williams (mistrial/actual bias; deference; “prejudice is manifest” framing).
United States v. Frost, Johnson v. Luoma, English v. Berghuis, Phillips v. Bradshaw, Sheppard v. Maxwell, Parker v. Gladden (debate over presumptive prejudice/implied bias; reserved for extreme cases; court declines to apply here).

E. Summary charts and Rule 403

United States v. Bray (secondary-evidence summaries at the intersection of Rules 611/1006; limiting instruction requirement).
United States v. Kerley, United States v. Dunnican, United States v. Bailey, United States v. Campbell (affirming admission of summaries; assistance to jury).
United States v. Harvel, Old Chief v. United States, United States v. Asher, United States v. Carney (Rule 403: unfair prejudice vs. probative value; strong tilt toward admissibility).
United States v. Metcalfe (abuse-of-discretion framing).

F. Sentencing: mandatory minimum factfinding

Alleyne v. United States (any fact increasing mandatory minimum must be found by jury).

3.2. Legal Reasoning

A. VICAR: “racketeering activity” and leadership liability under state accomplice law

Baskerville argued that the conduct was not “racketeering activity” and that he could not be guilty because he was not physically present at shootings. The court rejected both.

Racketeering activity: Under 18 U.S.C. § 1961(1)(A), state-law murder qualifies as racketeering activity. Tennessee murder/attempted murder are felonies (citing Tenn. Code Ann. §§ 39-13-202, 39-12-101), satisfying the VICAR framework.
Commission without presence: The panel relied on Tennessee accomplice liability (Tenn. Code Ann. § 39-11-402(2))—a person is responsible if he “solicits, directs, aids, or attempts to aid.” Trial evidence (hierarchy, orders to “shoot,” “kill or be killed,” planning meetings, and contemporaneous calls/texts) supported that Baskerville directed violence to maintain enterprise status. Physical presence was unnecessary.

B. RICO conspiracy: agreement that “a conspirator” will commit two predicates

Smith attacked his RICO conspiracy conviction by arguing the Government purportedly shifted away from drug trafficking predicates. The court treated the key legal point as the difference between substantive RICO and RICO conspiracy: under United States v. Hills and Salinas v. United States, a conspiracy conviction requires proof that the defendant agreed that at least one conspirator would commit two racketeering acts, not that the defendant personally committed two.

The panel also relied on the general verdict rule (United States v. Mari; Griffin v. United States)—because the jury returned a general conspiracy verdict and the instructions permitted “any combination” of alleged predicates, the conviction stands if evidence supports at least one valid theory (here, multiple attempted murders).

C. Suspected jury intimidation: (i) waiver/forfeiture control the remedial posture; (ii) no plain error; (iii) mistrial requires actual bias

The opinion’s most practically significant holdings concern how appellate review narrows when defense counsel strategically resists juror questioning in the moment, then seeks reversal for lack of that questioning later.

Waiver bars Springfield’s “individual juror questioning” argument: Because Springfield’s counsel urged “Leave them alone” and opposed additional interference, he “agreed in open court” with the district court’s course. Under United States v. Perry, that is waiver, foreclosing review.
Smith’s argument reviewed for plain error: At most, Smith forfeited an argument that the court should have individually questioned jurors. Under United States v. Olano and Sixth Circuit plain-error cases (e.g., United States v. Kechego), he had to show a clear/obvious error under settled law. He could not, because Sixth Circuit precedent gives trial courts flexibility in tailoring inquiries and warns that extra emphasis can exacerbate bias (United States v. Taylor; United States v. Mack).
Distinguishing cases that demanded more investigation: The court distinguished United States v. Davis, United States v. Corrado, and United States v. Lanier as involving a failure to conduct any meaningful juror questioning or denial of a meaningful chance to develop bias—unlike here, where the foreperson was questioned on the record, the jury was polled post-verdict, and the court repeatedly confirmed impartiality.
Mistrial requires proof of actual bias; prejudice not presumed: The court reaffirmed the Sixth Circuit’s post-Smith v. Phillips approach from United States v. Pennell: defendants bear the burden to show actual juror partiality; “prejudice is not to be presumed.” It declined to treat this as an “extreme situation” warranting implied bias (Johnson v. Luoma; English v. Berghuis), emphasizing that the alleged intimidation was not clearly attributable to a party and the jurors stated they could deliberate fairly.

D. Phone “summary charts”: admissible secondary-evidence summaries with limiting instruction

The panel treated the exhibits as “secondary-evidence summaries” under United States v. Bray. Because Baskerville did not dispute the accuracy of the underlying phone records and the district court gave a limiting instruction that the chart is only as reliable as the material summarized, admission was within discretion. The court also rejected the Rule 403 claim, emphasizing that “unfair prejudice” is not the same as “powerful evidence” (Old Chief v. United States; United States v. Harvel).

Notably, the court included an update: “illustrative aids” formerly associated with Rule 611 are now explicitly addressed by Federal Rule of Evidence 107 (effective December 2024), while observing the substantive standard remains the same.

E. Sentencing: Alleyne error on § 924(c) mandatory minimum

The district court imposed a 10-year minimum for “discharge” under 18 U.S.C. § 924(c)(1)(A)(iii), but the jury found only “use or carry” and did not find discharge. Under Alleyne v. United States, that factfinding must be made by the jury. The Government conceded error; the Sixth Circuit vacated Smith’s sentence and remanded for resentencing.

3.3. Impact

Defense strategy consequences in external-influence episodes: The decision underscores that when defense counsel opposes juror-by-juror inquiry as “tainting” and urges the court to “leave them alone,” the defendant may later face waiver (no review) or forfeiture (plain-error review). This materially affects trial counsel decision-making when suspected intimidation emerges mid-deliberation.
Remmer procedures remain flexible in the Sixth Circuit: The panel reinforces that Remmer v. United States does not impose a rigid requirement of individual juror questioning in every case—particularly where the district court investigates, records assurances of impartiality, and balances the risk of exacerbating bias.
Actual-bias burden persists: By reaffirming United States v. Pennell, the opinion fortifies the Sixth Circuit’s skepticism toward presumptions of prejudice in most external-contact contexts, limiting mistrial/relief absent evidence of actual partiality.
Gang leadership liability: The sufficiency analysis provides a template for proving VICAR culpability of leaders who issue orders and monitor operations without being physically present—using state accomplice statutes, hierarchy testimony, and communications metadata.
Summary evidence practice: The ruling supports the continued use of well-founded, properly-instructed call/text charts to translate dense digital records into jury-comprehensible timelines.

4. Complex Concepts Simplified

VICAR (violent crime in aid of racketeering): A federal crime that punishes violent acts done to gain, keep, or increase status within a racketeering enterprise. A defendant can be liable even if he did not pull the trigger, if state law treats him as responsible for directing or aiding the violence.
RICO conspiracy vs. substantive RICO: Substantive RICO typically requires that the defendant personally commit at least two racketeering acts. RICO conspiracy focuses on agreement—did the defendant agree that someone in the group would commit at least two racketeering acts to advance the enterprise?
Remmer hearing: A process to investigate whether outside contact (like threats or tampering) biased jurors. Courts have discretion in how to investigate, and defendants often must show actual bias to obtain relief.
Waiver vs. forfeiture: Waiver is an intentional choice (e.g., agreeing to a procedure) and usually eliminates appellate review. Forfeiture is a failure to timely raise a point and triggers “plain error” review, a very difficult standard for appellants.
Rule 403 “unfair prejudice”: Evidence is not excluded simply because it is damaging; it must invite a verdict based on an improper reason (emotion, propensity, etc.) that substantially outweighs its legitimate probative value.

5. Conclusion

The Sixth Circuit’s decision affirms wide trial-court discretion to address suspected jury intimidation without rigid procedural mandates, while simultaneously tightening appellate avenues when defense counsel resists further inquiry at trial. It reinforces that claims of jury taint typically require proof of actual bias—not a presumption of prejudice—and that waiver/forfeiture doctrines can be outcome-determinative in Remmer-type disputes. The opinion also confirms robust evidentiary support for leadership-based VICAR liability through state accomplice rules and communications evidence, validates the use of secondary-evidence summary charts with limiting instructions, and applies Alleyne v. United States to correct an erroneously enhanced § 924(c) mandatory minimum.