Argued: February 10, 2015.
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12-cr-00102-TWP-DML -- Tanya Walton Pratt, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee (14-1237, 14-1585, 14-1592): Bradley A. Blackington, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN.
For CHRISTIAN J. MILLER, Defendant - Appellant (14-1237): Richard Mark Inman, Attorney, Indianapolis, IN.
For FRANK JORDAN, Defendant - Appellant (14-1585): Gregory Bowes, Attorney, GREG BOWES LEGAL SERVICES, P.C., Indianapolis, IN.
FRANK JORDAN, Defendant - Appellant (14-1585), Pro se, Glenville, WV.
For JOSHUA N. BOWSER, Defendant - Appellant (14-1592): Monica Foster, Attorney, Sara J. Varner, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Indianapolis, IN.
Before POSNER, MANION, and TINDER, Circuit Judges.
Tinder, Circuit Judge.
Joshua Bowser, Christian Miller, and Frank Jordan were convicted as part of a large-scale prosecution of people associated with the Indianapolis Chapter of the
Outlaws Motorcycle Club. For those not familiar with the Club, it was founded in 1935 in the Chicagoland area as group of motorcycle enthusiasts, and its website now boasts chapters all over the world. See Outlaws History, http://www.outlawsmcworld.com/history.htm (last visited Mar. 23, 2015). The Club, or at least some of its members, have had a spotty history of compliance with criminal laws. See Outlaws Motorcycle Club, Wikipedia, http://en.wikipedia.org/wiki/Outlaws_Motorcycle_Club (last visited Mar. 23, 2015). On appeal, the defendants challenge various aspects of their convictions and sentences. We remand in regard to a single issue related to a condition of Bowser's supervised release, a point on which the government confesses error. In all other respects, we affirm.
Following an extensive FBI investigation, in July 2012, a grand jury in Indianapolis returned an indictment against 42 people associated with the Outlaws, including Bowser. Miller and Jordan were added to the case later, along with seven others. Ultimately, a Second Superseding Indictment charged a total of 51 people with 49 criminal offenses. Nearly all of the accused pleaded guilty to all the charges against them. Bowser, Miller, and Jordan did not.
On September 5, 2013, Bowser pleaded guilty to ten crimes, including wire fraud, extortion, witness tampering, and conspiracy to distribute cocaine, but he pleaded nolo contendere to an eleventh charge for violating the Racketeer Influenced and Corrupt Organizations statute (" RICO" ), 18 U.S.C. § 1962(c). In accepting Bowser's plea, the district court noted that pleading nolo contendere allowed Bowser to refuse to admit that the Outlaws acted as a criminal organization and thus maintain his membership in the group. But the court decided that this concern was outweighed by the time and expense saved by avoiding trial. At sentencing, however, the court denied Bowser a reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, noting his nolo contendere plea and his refusal to admit that the Outlaws were a criminal enterprise or to accept that others conspired with him. Bowser nonetheless received a prison sentence of 180 months, well below the calculated guidelines imprisonment range of 235 to 293 months.
Meanwhile, on September 24, 2013, Miller proceeded to a jury trial on allegations of racketeering. Miller's defense focused on arguing that the government could not prove the robberies that it had charged as the predicate acts necessary for finding him guilty of a " pattern" of racketeering under § 1962(c). In particular, Miller argued that an incident where he confronted another Outlaws member, Bryan Glaze, about stealing from the Outlaws was not actually a robbery because Glaze knew what would happen as a result of him having stolen from the Outlaws.
According to testimony at trial, Miller confronted Glaze at the Outlaws clubhouse because Glaze had stolen from the Club while performing his duties of ordering and collecting money from other members for Outlaws merchandise. During the confrontation, Miller pushed Glaze, and another Outlaws member pointed a gun at Glaze and told him they were not " fucking around." Miller then demanded that Glaze turn over his jewelry and clothing with the Outlaws insignia. Altogether approximately 17 Outlaws were present. One of those present was asked at trial if Glaze turned over the items voluntarily or by threat of force and responded, " Oh, by threat." The Outlaws also took Glaze's personal items, including a television,
stored in the Club's bunkhouse, though Glaze said they did so " without [his] knowledge." As described by an eyewitness, this meant that the Outlaws went and removed the property while Glaze was confined to a chair and " couldn't move." Bowser then summoned a tattoo artist to cover up Glaze's Outlaws tattoos. Glaze said that the other Outlaws " made it clear if [he] didn't cooperate with them, [he] probably wouldn't have walked out of there." The jury found Miller guilty of racketeering, and the district court sentenced him to 60 months' imprisonment.
Lastly, on November 4, 2013, Jordan went to trial for conspiracy to distribute cocaine, 21 U.S.C. § 846, and unlawful use of a communication facility, id. § 843(b). His trial lasted three days, during which the jury heard testimony from numerous law enforcement officers involved in investigating his illegal activities and from two of his co-defendants, Hector Nava-Arredondo (" Nava" ) and James Stonebraker. According to the trial testimony, Nava sold cocaine at Sidewinders, a bar in Indianapolis where Jordan was a bouncer, in exchange for providing cocaine to the bar's owner. (Sidewinders might be described as an Outlaws hangout.) Both Jordan and Stonebraker sold drugs that Nava ...