US v. Jorge P. Cornell

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cr-00402-JAB-1. [999546118]. [13-4630, 13-4644, 13-4877]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4630

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE PETER CORNELL, a/k/a King J, a/k/a King Jay,
Defendant - Appellant.

No. 13-4644

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNESTO WILSON, a/k/a King Yayo,
Defendant - Appellant.

No. 13-4877

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUSSELL LLOYD KILFOIL, a/k/a King Peaceful, a/k/a Jonathan
Hernandez,

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Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:11-cr-00402-JAB-1; 1:11-cr-00402-JAB14; 1:11-cr-00402-JAB-2)

Argued:

January 29, 2015

Decided:

March 16, 2015

Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge King and Senior Judge Davis joined.

ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina; Brian Michael Aus, BRIAN AUS,
ATTORNEY AT LAW, Durham, North Carolina; Curtis Scott Holmes,
BROCK,
PAYNE
&
MEECE,
PA,
Durham,
North
Carolina,
for
Appellants.
Sonja M. Ralston, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Leslie R.
Caldwell, Assistant Attorney General, David A. O’Neil, Acting
Deputy
Assistant
Attorney
General,
Leshia
M.
Lee-Dixon,
Organized Crime and Gang Section, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand,
United States Attorney, Greensboro, North Carolina, Robert A.J.
Lang, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Winston-Salem, North Carolina, for Appellees.

2

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AGEE, Circuit Judge:
This case arises from the prosecution of several members of
a violent street gang known as the Latin Kings.
multi-week
Kilfoil,

trial,
and

a

jury

Ernesto

convicted

Wilson

Jorge

Following a

Cornell,

(collectively

Russell

“Defendants”)

of

conspiracy to violate the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d), based on their
activities
chapter

in

of

connection

the

gang.

with
On

the

Greensboro,

appeal,

North

Defendants

Carolina

make

several

assertions of error concerning their trial, primarily focusing
on the district court’s jury instructions and the sufficiency of
the

evidence.

Finding

no

reversible

error,

we

affirm

the

judgment of the district court.

I.
The

Latin

Kings

is

a

nationwide

centers in Chicago and New York.
in

the

state

of

North

Carolina,

street

gang

with

power

At the local level, including
groups

of

Latin

Kings

are

organized into “tribes” anchored to a specific geographic area.
Each tribe has a multi-level leadership structure denominated as
the

First

through

Fifth

Crowns.

The

First

Crown

leads

the

tribe, giving orders and running the group, with each descending
Crown assigned lesser leadership tasks.
gang

are

traditionally

given

“King
3

Full members of the

Names”

or

“Queen

Names,”

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which

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is

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how

they

are

others on the street.

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known

within

the

organization

and

to

The gang finances itself through weekly

membership dues and the proceeds of various illegal activities
its

members

clothing,

undertake.

and

guns,

incarcerated.
violence,

Central

which

rival gangs.

as

is

These
well
to

funds

as

the

manifested

to

are

used

support

organization
through

to

buy

members
is

frequent

a

food,

who

are

culture

disputes

of

with

Violence and the threat of violence are also used

to maintain compliance with gang rules.
Count I of the controlling indictment charged Defendants
and eleven others with “knowingly and intentionally conspir[ing]
to

conduct

conduct

of

and

participate,

the

affairs

of

directly
[a

and

criminal]

indirectly,

enterprise

in

the

through

a

pattern of racketeering activity,” in violation of 18 U.S.C. §
1962(d).
the

Latin

J.A. 155.
Kings,

“a

The criminal enterprise was identified as
violent

street

gang

with

thousands

of

members” who “operated in the Middle District of North Carolina
since at least 2005.”

J.A. 147, 151. 1

1

The indictment further charged Cornell with assault with a
firearm in aid of racketeering, in violation of 18 U.S.C. §
1959(a)(3), and discharging a firearm in the course of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
Cornell was convicted on both charges, but he does not challenge
those convictions on appeal and therefore they are not discussed
below.
4

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Defendants
defendants.
Government
tribe’s

proceeded

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to

trial

along

with

four

co-

With the aid of several cooperating witnesses, the
presented

illegal

extensive

activities,

testimony

which

armed robbery, and bank fraud.

about

included

the

Greensboro

attempted

murder,

The Government also presented

evidence that Cornell, known as “King Jay,” served as the First
Crown

of

the

Greensboro

tribe

throughout

the

conspiracy.

Kilfoil, “King Peaceful,” was likewise identified as holding a
variety of leadership positions in the tribe.

Wilson was not a

member of the gang, but the Government offered evidence that he
participated

in

several

robberies

with

the

Latin

Kings

at

Cornell’s direction and associated with the gang on a number of
occasions.
At the close of evidence, the district court dismissed the
charges against one co-defendant and sent the case to the jury.
After

deliberating

for

approximately

three

days,

the

jury

convicted Defendants on the RICO conspiracy charge and acquitted
the

remaining

co-defendants.

The

jury

returned

identical

verdict forms for each Defendant, with special findings that the
members of the conspiracy had either planned or committed one
murder conspiracy, one attempted murder, multiple robberies, one
act

of

interference

with

interstate

commerce

violence, and multiple acts of bank fraud.

5

by

threats

or

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Defendants moved for post-trial relief, raising many of the
same

arguments

denied

their

now

advanced

motions

and

on

appeal.

sentenced

The

district

Cornell

to

336

court

months’

imprisonment, Wilson to 204 months’ imprisonment, and Kilfoil to
180 months’ imprisonment.

Defendants timely appealed and we

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.
Defendants raise several assignments of error on appeal,
some individually and some jointly.

We address the joint claims

first, setting forth additional facts in context.

A.
Defendants were each convicted of conspiracy to participate
in

a

racketeering

1962(d).

enterprise

in

violation

of

18

U.S.C.

§

“[T]o satisfy § 1962(d), the government must prove

that an enterprise affecting interstate commerce existed; ‘that
each defendant knowingly and intentionally agreed with another
person

to

conduct

enterprise;

and

.

or
.

participate
.

that

in

each

the

affairs

defendant

of

the

knowingly

and

willfully agreed that he or some other member of the conspiracy
would commit at least two racketeering acts.’”
Mouzone,

687

F.3d

207,

218

original) (citation omitted).

(4th

Cir.

2012)

United States v.
(alteration

in

Thus, as part of its conspiracy
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case

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against

Defendants,

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the

Government

was

required

to

establish that the alleged RICO enterprise affected interstate
commerce.
Following
Gray,

137

this

F.3d

Court’s

765,

precedent,

see

(4th

1998)

772-73

Cir.

United
(en

States
banc),

v.
the

district court decided that a de minimis effect on interstate
commerce is all that was required to satisfy RICO’s commerce
element.
(4th

See also United States v. Williams, 342 F.3d 350, 354

Cir.

2003)

(“[W]here

the

[federal

statute]

reaches

a

quintessentially economic activity that, taken in the aggregate,
substantially impacts interstate commerce, the minimal effects
standard

does

Court.]”).
“[t]he

not

contravene

the

teachings

of

[the

Supreme

The district court thus instructed the jury that

Government

must

prove

.

.

.

the

enterprise

activity

affected interstate or foreign commerce in any way, no matter
how minimal.”

J.A. 4363.

Defendants claim that this instruction was in error because
§ 1962(d) requires more than a de minimis effect on interstate
commerce

in

cases

economic activity.

where

the

enterprise

has

not

engaged

in

According to Defendants, the Latin Kings

were not shown to have conducted considerable economic activity,
and therefore “the Government must prove that the alleged RICO
enterprise has a substantial effect on interstate commerce as an
essential,

constitutional,

and

jurisdictional
7

element

of

the

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crime

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justifying

the

Opening Br. 23.

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federal

reach

of

the

RICO

statute.”

As support, Defendants cite Waucaush v. United

States, 380 F.3d 251 (6th Cir. 2004).
In

Waucaush,

the

Sixth

Circuit

concluded

that

where

an

alleged criminal enterprise engaged in conduct “classified as
conduct of the noneconomic strain” a “minimal effect on commerce
will not do.”

Id. at 256.

In that case, Waucaush and his

fellow gang members murdered, conspired to murder, and assaulted
members of a rival gang.

Id. at 253.

Waucaush pled guilty to

conspiring to violate RICO but later moved to vacate his plea.
Id.

In addressing the jurisdictional reach of § 1962(d), the

Sixth Circuit held that “where the enterprise itself did not
engage in economic activity,” as was true with defendant’s gang
which only engaged in “violence qua violence,” the prosecution
had to show a substantial effect on interstate commerce.
256.

Id. at

The court ultimately found the evidence insufficient to

meet this heightened threshold.

Id. at 258.

Waucaush is not the law in this Circuit and we have doubts
about its validity, particularly in light of Gonzales v. Raich,
545

U.S.

reiterated

1

(2005),

that

“when

where
a

the

general

Supreme

Court

regulatory

more

statute

recently
bears

a

substantial relation to commerce, the de minimis character of
individual

instances

consequence.”

arising

under

that

statute

is

of

no

Id. at 17 (citations and internal quotation marks
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omitted); see also United States v. Nascimento, 491 F.3d 25, 30,
37-39

(1st

Cir.

2007)

(finding

Waucaush

incompatible

with

Gonzales, and concluding “that the normal requirements of the
RICO statute apply to defendants involved with enterprises that
are

engaged

only

in

noneconomic

criminal

activity”).

Nevertheless, even assuming Waucaush is correct and the district
court should have followed its holding, it affords Defendants no
relief in this case.
The

Sixth

Circuit’s

decision

to

apply

an

elevated

evidentiary burden in Waucaush hinged on the fact that “there
[was] no evidence . . . that the [gang] was involved in any sort
of economic enterprise.”

380 F.3d at 256.

Indeed, the court’s

holding is specifically limited to cases “where the enterprise
itself did not engage in economic activity.”

Id.

That is

clearly not the case before us.

For example, the Government

presented

the

ample

evidence

that

RICO

enterprise,

the

Greensboro Latin Kings, committed multiple acts of bank fraud.
In

particular,

two

gang

members,

Charles

Moore

and

Richard

Robinson, devised and executed a false check scheme – Robinson
wrote

Moore

checks

on

a

defunct

account

at

which Robinson then cashed at Wachovia Bank.

Woodforest

The proceeds from

this scam were then shared with gang leadership.
standing

alone,

is

reach of Waucaush.

sufficient

to

take

this

Bank,

This evidence,

case

outside

the

See United States v. Spinello, 265 F.3d 150,
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156 (3d Cir. 2001) (“A bank robber is obviously motivated by his
or

her

own

immediate

economic

gain

-

money

is,

of

course,

‘economic’ - and . . . the victim bank and its depositors suffer
immediate economic losses as well as the disruption to their
respective

abilities

to

engage

in

commerce,

otherwise,

by

activities

as

lending

such

interstate
and

or

purchasing

assets.”); United States v. Alegria, 192 F.3d 179, 189-90 (1st
Cir. 1999) (noting that bank fraud is an “economic” crime); see
also United States v. Robinson, 389 F.3d 582, 594 (6th Cir.
2004)

(collecting

instrumentalities

cases
of

identifying

interstate

banks

commerce).

as

channels

or

Accordingly,

we

conclude that the district court did not err by applying the
minimal effects standard in this case.
We further conclude that the trial evidence was more than
sufficient to meet this minimal threshold.

If the foregoing

bank fraud connection to interstate commerce were not enough,
the Government also presented testimony that the gang regularly
communicated

by

phone

and

committed

multiple

guns that traveled in interstate commerce.

robberies

using

See United States v.

Mejia, 545 F.3d 179, 203 (2d Cir. 2008) (“Transporting goods,
such as firearms or stolen vehicles, across state lines is a
classic example of engaging in interstate commerce.”); United
States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (testimony
that the gun used during the commission of the crime was not
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manufactured

Filed: 03/16/2015

in

Virginia

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“established

the

interstate

commerce

requirement”); United States v. Atcheson, 94 F.3d 1237, 1243
(9th Cir. 1996) (noting that “placement of out-of-state phone
calls”

further

demonstrated

a

“connection

with

interstate

commerce”); United States v. Muskovsky, 863 F.2d 1319, 1325 (7th
Cir.

1988)

(finding

interstate

nexus

based

on

the

use

of

interstate telephone calls to verify credit card transactions);
United States v. Allen, 656 F.2d 964, 964 (4th Cir. 1981) (per
curiam) (“[S]upplies used in [defendant’s] bookmaking operations
which originated outside of Maryland provided a sufficient nexus
between

the

enterprise

and

interstate

commerce

to

invoke

RICO.”); see also United States v. Delgado, 401 F.3d 290, 297
(5th Cir. 2005) (finding use of Western Union, telephones, the
U.S.

Postal

communicate
criminal

Service,
with

purposes

each
was

and

pagers

other

in

to

transfer

furtherance

sufficient

to

of

money
the

demonstrate

and

group’s

that

the

enterprise affected interstate commerce).

B.
As previously noted, to establish a RICO conspiracy the
government

must

prove

“‘that

each

defendant

knowingly

and

willfully agreed that he or some other member of the conspiracy
would commit at least two racketeering acts.’”
F.3d

at

218

(citation

omitted).
11

Racketeering

Mouzone, 687
acts,

often

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referred

to

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as

predicate

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acts,

include

any

act

or

threat

involving murder, kidnapping, gambling, arson, robbery, bribery,
extortion, dealing in obscene matter, or dealing in a controlled
substance

chargeable

under

state

imprisonment for more than one year.

law

and

punishable

by

See 18 U.S.C. § 1961(1).

In charging the jury on this element, the district court
instructed that the “verdict must be unanimous as to which type
of racketeering acts you have found by your unanimous verdict
were committed or intended to be committed by members of the
racketeering conspiracy that the defendant has joined.”

J.A.

4372.

this

The

verdict

forms

(reproduced

below)

mirrored

instruction, listing multiple types of crimes that satisfy the
definition of racketeering acts and asking the jury to decide
whether some member of the conspiracy had committed or intended
to commit no act, a single act, or multiple acts of each type:

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J.A. 4479.
As they did below, Defendants contend this instruction was
erroneous.
unclear

Although Defendants’ exact argument on this point is

from

their

brief,

we

find

no

error

in

the

district

court’s charge regardless of how the issue is framed.

See Al-

Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225, 235 (4th
Cir. 2000) (“We review de novo the claim that jury instructions
fail to correctly state the law.”).
To the extent Defendants argue that the district court was
required to charge the jury that it had to unanimously agree on
the specific racketeering acts that the conspirators engaged in
during the conspiracy, such a claim cannot succeed.
Br.

13

(“Absent

such

an

instruction,

it

is

See Opening

impossible

to

determine which, if any, of the overt acts the jury unanimously
found to be proven beyond a reasonable doubt.”).
In Salinas v. United States, the Supreme Court explained
that, unlike traditional conspiracy, the RICO conspiracy statute
contains “no requirement of some overt act or specific act.”
522 U.S. 52, 63 (1997).

Instead, a RICO conspiracy may “exist

even if a conspirator does not agree to commit or facilitate
each and every part of the substantive offense.”

Id.

The

partners in the criminal plan need only “agree to pursue the
same criminal objective,” regardless of whether that criminal
objective is ever started or carried out.
13

Id.

Thus, to secure

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a conviction for RICO conspiracy, the government is not required
to

allege

or

prove

the

actual

completion

of

a

single

racketeering act by the defendant or any other member of the
conspiracy.

See United States v. Browne, 505 F.3d 1229, 1263–64

(11th Cir. 2007) (noting that RICO conspiracy charges do not
require proof of an overt act); United States v. Corrado, 286
F.3d 934, 937 (6th Cir. 2002) (“[Section] 1962(d) requires no
‘overt

or

specific

forward.”).

act’

Because

in

carrying

completion

of

an

the

RICO

overt

enterprise

act

is

not

an

element of the offense, it follows that an instruction, such as
that suggested by Defendants, directing the jury to identify
what predicate acts actually occurred is not required.
Defendants are likewise unsuccessful if we interpret their
argument as contesting the district court’s decision to require
unanimity

as

to

only

the

types

conspirators agreed to commit.

of

racketeering

acts

the

See Opening Br. 28 (“Instead of

requiring unanimity as to the predicate acts, the district court
in this case instead required unanimity only as to the type of
acts.”).

“[A]

RICO

conspiracy

charge

need

not

specify

the

predicate racketeering acts that the defendant agreed would be
committed.”

United States v. Randall, 661 F.3d 1291, 1297 (10th

Cir. 2011).

For that reason, every circuit to have considered

this issue has concluded that for a RICO conspiracy charge the
jury need only be unanimous as to the types of racketeering acts
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that the defendants agreed to commit.

See United States v.

Applins, 637 F.3d 59, 82 (2d Cir. 2011); Randall, 661 F.3d at
1296-99 (collecting cases); see also Third Circuit Manual of
Model Jury Instructions – Criminal § 6.18.1962D (2013) (“[Y]our
verdict

must

be

unanimous

as

to

which

type

or

types

of

racketeering activity [defendant] agreed would be committed . .
. .”).

In agreement with these cases, we conclude that the

district court’s instruction requiring unanimity as to the types
of racketeering acts that members of the conspiracy agreed to
commit was sufficient, and no instruction as to the commission
of specific acts was required. 2

C.
In

their

final

joint

claim,

Defendants

argue

that

the

district court improperly issued two Allen charges, the second
of

which,

they

contend,

unfavorable verdict.
U.S.

492

(1896),

coerced

the

jury

into

rendering

an

Derived from Allen v. United States, 164
the

commonly

2

termed

Allen

charge

is

a

During oral argument, Defendants raised, for the first time, an
additional argument that this jury instruction was improper
because it failed to conform to the indictment.
Subject to
certain exceptions not applicable here, we do not consider on
appeal issues raised for the first time at oral argument.
See
W. Va. CWP Fund v. Stacy, 671 F.3d 378, 389 (4th Cir. 2011);
Goad v. Celotex Corp., 831 F.2d 508, 512 n.12 (4th Cir. 1987).
Accordingly, we do not address the merits of this argument and
consider it waived.
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supplemental instruction given by a trial court when the jury
has reached an impasse in its deliberations and is unable to
reach a consensus.

See United States v. Seeright, 978 F.2d 842,

845 n.* (4th Cir. 1992).

“[A]n Allen charge must not coerce the

jury, and it must be fair, neutral and balanced.”

United States

v. Cropp, 127 F.3d 354, 359-60 (4th Cir. 1997).
district

court’s

decision

to

give

an

Allen

We review a

charge

content of such a charge for abuse of discretion.

and

the

United States

v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).
The jury deliberated over the course of four days, from
Friday,

November

16

to

Wednesday,

November

21.

During

this

period, the district court gave two modified Allen charges.

The

first came at the end of the second day of deliberations on
Monday, November 19, and in response to the jury’s request to
view certain pieces of evidence.
request,

the

district

court

In addressing the evidentiary
explained

the

requirement

of

unanimity and reminded the jury of its “duty to deliberate until
you’ve been able to reach a verdict in this case.”

J.A. 4408.

The court further noted that the jury’s “only interest is to
seek

the

truth.”

J.A.

4409.

No

objection

was

made

by

Defendants when this charge was given.
The second Allen charge came on Wednesday morning after the
jury

sent

a

note

unanimous verdict.

indicating

that

they

could

not

reach

a

Over Defendants’ objections, the district
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court told the jury that the trial “ha[d] required a certain
amount

of

time,

money,

and

other

resources”

and

“it[]

[was]

unlikely a jury of twelve men and women could be assembled [for
a

retrial]

impartial

who

as

are

you

twelve of you.”

more

have

conscientious

exhibited

J.A. 4453.

and

as

more

you

have

competent

been
than

or
the

The court cautioned that it had no

opinion about the case and its instructions were not “intend[ed]
to

force

any

convictions.”

of

you

J.A. 4453.

to

abandon

clearly

held

views

or

Continuing, the court asked jurors in

the minority to “listen and carefully consider the views of the
majority” and vice versa.

J.A. 4453–54.

The court concluded by

reminding the jury that “at all times . . . no juror is expected
to give up a conscientious conviction that he or she may have
regarding a defendant’s guilt or innocence.”

J.A. 4454.

The

jury resumed deliberations, and after approximately three hours,
returned a verdict convicting Defendants on the RICO conspiracy
charge but acquitting the other three co-defendants.
noted

earlier,

in

completing

the

verdict

sheets

Also, as
for

each

Defendant, the jury found no predicate acts for RICO purposes in
four of the nine categories submitted for their determination.
Defendants

do

not

contest

the

content

of

the

district

court’s Allen charges and we agree that such a claim would be
meritless.

There were no erroneous statements of law by the

district court in either charge.
17

See United States v. Hylton,

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349 F.3d 781, 788 (4th Cir. 2003) (upholding a similarly worded
Allen charge).

Rather,

Defendants

argue

that

the

effect

of

giving the second Allen charge was improperly coercive.
To the extent Defendants suggest that a trial court should
at no time give a second Allen charge, we disagree.

Our circuit

has never adopted a flat ban on multiple Allen charges and we
decline to do so now.

See Seeright, 978 F.2d at 850 (analyzing

a second Allen charge under the traditional abuse of discretion
test).

The district court “is [often] in the best position to

gauge whether a jury is deadlocked or able to proceed further
with its deliberations,” and thus it is beneficial to evaluate
the propriety of a second Allen charge in light of all the
circumstances rather than through an arbitrary rule.

Id.; see

also United States v. Barone, 114 F.3d 1284, 1305 (1st Cir.
1997) (declining to implement a per se ban on multiple Allen
charges

because

“the

trial

judge

is

closer

to

the

facts”).

Accordingly, we examine the impact of an Allen charge on a caseby-case basis.
The crux of our Allen charge analysis is the likelihood of
coercion.

The district court acts within its discretion when

the charge or charges, taken as a whole and in light of all the
circumstances, do not coerce the jurors to abandon their view.
See United States v. Martin, 756 F.2d 323, 326 (4th Cir. 1985)
(“The danger of the Allen-type charge is the possibility that
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the minority on the jury may be coerced into going along with
the majority.”); Burgos, 55 F.3d at 941 (“It is critical that an
Allen charge not coerce one side or the other into changing its
position for the sake of unanimity.”); Cropp, 127 F.3d at 360
(“[W]e

do

not

evaluate

a

judge’s

instructions

in

isolated

segments, but we look at the instructions given as a whole.”).
In

determining

whether

an

Allen

charge

has

an

impermissibly

coercive effect on jury deliberations, some of the factors we
consider

include

incorporation

with

instruction,

and

deliberations.

the

language

other
the

of

the

instructions,
length

of

instruction,

the

the

timing

jury’s

of

its
the

subsequent

See Jenkins v. United States, 380 U.S. 445, 446

(1965); United States v. Webb, 816 F.2d 1263, 1266 (8th Cir.
1987).

These factors are not exclusive, and in the end, the

ultimate

question

is

whether

the

Allen

instruction

was

impermissibly coercive.
Under the circumstances of this case, we conclude there was
no coercion as a result of the second Allen charge.

First, the

jury deliberated for over three hours after the second Allen
charge and before returning a verdict.

See United States v.

Russell, 971 F.2d 1098, 1108 (4th Cir. 1992) (“[T]he fact that
the jury deliberated for approximately three hours after hearing
the charge provides adequate assurance that the jury was not
improperly

coerced

by

the

district
19

court’s

instruction.”);

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United

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States

v.

West,

877

Pg: 20 of 33

F.2d

281,

291

(4th

Cir.

1989)

(rejecting a similar claim on grounds that the jury deliberated
for two hours following the charge).

Second, and very tellingly

in this case, the jury returned a split verdict.

Defendants’

claim of coercion is negated by the fact that the jury acquitted
three co-defendants and found predicate acts in only five of the
nine

categories

actions
acting

reflect
under

an

submitted
a

for

thoughtful

impulse

of

their

and

consideration.

deliberate

coercion.

See

jury

–

These
one

States

United

not

v.

Heath, 970 F.2d 1397, 1406 (5th Cir. 1992) (finding no coercion
because the jury’s split verdict was “a discriminating one”);
West, 877 F.2d at 288 (when the verdict is split, “[i]t can be
inferred that the jury carefully considered the evidence against
each

defendant

and

based

its

verdict

solely

upon

that

evidence”). 3
In arguing for the opposite conclusion, Defendants rely on
United States v. Fossler, 597 F.2d 478 (5th Cir. 1979), which is
plainly distinguishable.
the

district

court’s

In Fossler, the Fifth Circuit found

second

Allen

charge

improperly

coercive

when it was given after “[t]he jury indicated at three separate
3

Defendants
suggest
that
the
second
Allen
charge
was
impermissible because it was given the day before Thanksgiving.
This argument is nothing but pure speculation.
We decline to
find the charge coercive solely on this fact when all of the
relevant evidence indicates the jury’s deliberations were
unaffected by any improper pressure.
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points in time, over a three day period, that it could not reach
a decision.”

Id. at 485.

And, “[o]nly one hour after the

second Allen charge was sent to the jury, a guilty verdict was
returned.”

Id.

Given the jury’s prior unequivocal deadlock,

the Fifth Circuit concluded that the last instruction must have
had a coercive effect.

Id.

There is no comparable evidence of

perpetual deadlock in this case sufficient to support a like
result.

We regularly uphold Allen instructions after the jury

first reports impasse, as happened here.
360

(affirming

lengthy

Allen

inability

to

where

the

charge
reach

“district

after

a

the

court

jurors

consensus”);

See Cropp, 127 F.3d at
gave

[first]

Hylton,

349

the

jurors

expressed
F.3d

at

a
an

788

(same).
In sum, we are unpersuaded that the jury was coerced into
reaching its verdict.

After the second Allen charge, the jury

deliberated for several more hours and returned a split verdict,
indicating they carefully considered the evidence against each
defendant.

Compare Booth-El v. Nuth, 288 F.3d 571, 580-82 (4th

Cir. 2002), with Tucker v. Catoe, 221 F.3d 600, 611 (4th Cir.
2000).

On these facts, we find no abuse of discretion in giving

the second Allen charge.

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III.
Cornell individually raises two issues regarding the trial
evidence.

First, he challenges the district court’s decision to

strike

the

Second,

he

testimony

of

challenges

the

defense

witness

admission

of

written to him by a former gang member.

a

Saralee
letter

Gallien.

purportedly

We find no merit in

either argument.

A.
At the beginning of trial, the district court granted the
Government’s

motion

to

sequester

Federal Rule of Evidence 615.
not

specify

any

additional

witnesses

consistent

with

The district court’s ruling did
limitations

on

witness

contact

outside the text of Rule 615, which provides, in relevant part,
that “[a]t a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’ testimony.”
Fed. R. Evid. 615.
Government witness Charles Moore, a former member of the
Latin Kings, testified that in August 2011 he was attacked by a
rival gang, and that Cornell orchestrated a drive-by shooting in
retaliation.

The

Government

presented

this

incident

as

a

racketeering act for the conspiracy charge (either as attempted
murder or conspiracy to commit murder) and not as an independent
crime.
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To

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impeach

Moore’s

Gallien as his witness.

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testimony,

Cornell

called

Saralee

She testified that Moore was homeless

and briefly lived in her apartment at Cornell’s request.

While

living with her, Moore allegedly discussed his injuries from the
August 2011 assault.

Gallien testified that Moore had told her

the incident was amicably resolved without additional violence.
In

cross-examining

testimony

that

she

Gallien,

made

the

several

phone

Government

elicited

calls

Cornell

to

throughout the course of the trial and had visited him in prison
after Moore testified.

Gallien admitted discussing the case

with Cornell and other supporters, but denied talking about any
specific testimony.
After hearing this evidence, the district court concluded
that Gallien “more than likely was” aware of Moore’s testimony
before she was called as a witness.

J.A. 4164.

The court found

her “not to be credible,” J.A. 4160, and specifically noted that
on at least one occasion she took part in a conversation with
Cornell concerning “testimony that has been given in this case,”
J.A.

4163.

The

court

then

struck

her

testimony

in

full,

“particularly that portion [dealing] with whether or not Mr.
Moore

made

a

statement

that

the

[August

2011

worked out between other parties and was amicable.”
Cornell

first

argues

that

the

incident]

was

J.A. 4160.

district

court’s

sequestration order acted only to exclude witnesses from the
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See United States v. Rhynes, 218 F.3d 310, 316 (4th

Cir. 2000) (en banc) (King, J., plurality opinion) (noting that
Rule 615 “serves only to exclude witnesses from the courtroom”).
Thus, according to Cornell, his discussions with Gallien did not
violate the Rule 615 order, and the district court’s decision to
exclude

Gallien’s

testimony

violation was erroneous.
district

court

abused

on

the

basis

of

a

non-existent

Cornell separately argues that the

its

discretion

by

excluding

Gallien’s

testimony instead of fashioning a less severe sanction. 4
We

need

not

address

Cornell’s

arguments

on

the

merits

because, even assuming the district court erred by excluding
Gallien’s testimony, any error was harmless.

See United States

v. Smith, 441 F.3d 254, 263 (4th Cir. 2006) (“Exclusion of a
witness’ testimony is ‘an extreme remedy’ that ‘impinges upon
the

[constitutional]

should

be

used

right

sparingly.”

to

present

(citation

a

defense,’

omitted)).

and

thus

“For

this

constitutional error to be harmless, the Government is required
to

establish,

to

the

satisfaction

of

this

Court

beyond

a

reasonable doubt, ‘that a rational jury would have found the
defendant guilty absent the error.’” Rhynes, 218 F.3d at 323

4

A district court has three options for addressing a Rule 615
violation: it can sanction the witness for contempt; ensure that
the jury is aware of the violation through cross-examination or
instructions; or exclude all or part of the witness’ testimony.
See Cropp, 127 F.3d at 363.
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(citation omitted).

Pg: 25 of 33

The Government has met that burden in this

case.
Gallien’s testimony concerned only the August 2011 drive-by
shooting, which was presented to the jury as a racketeering act
for the RICO conspiracy charge and not as a stand-alone crime.
Accordingly, even had the jury believed Gallien’s testimony, it
would have, at most, declined to identify attempted murder or
conspiracy to commit murder as a predicate act on the verdict
form.

Excluding the murder references from the list, the jury

still found Defendants’ conspiracy included at least five other
racketeering acts (such as bank fraud) unrelated to the drive-by
shooting.

Thus, we do not hesitate to conclude that the jury

would have convicted Cornell regardless of Gallien’s testimony.
See United States v. John-Baptiste, 747 F.3d 186, 207-08 (3d
Cir. 2014) (explaining that a “RICO conviction must stand so
long as there is sufficient evidence to prove that the defendant
committed two or more predicate acts”); see also Callanan v.
United States, 881 F.2d 229, 234-35 (6th Cir. 1989).

B.
Cornell’s second argument is that the district court erred
in

admitting

into

evidence

against

found in the common area of his home.
“Jay,”

the

letter

warned

Jay

that
25

him

a

handwritten

letter

Addressed from “Squrl” to
federal

authorities

were

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investigating him and they had contacted possible cooperating
witnesses.

The letter also acknowledged “bad blood” between the

two

J.A.

men.

3941.1.

To

authenticate

this

document,

the

Government offered testimony that former gang member Jason Yates
and Cornell used the aliases “King Squirrel” and “King Jay,”
respectively, and that Yates had previously come into conflict
with Cornell in gang politics.

The Government also disclosed

that authorities had approached Yates about cooperating in this
case, and thus he knew of the investigation.
The

district

objection.

He

Government

court

argues

offered

admitted
this

decision

insufficient

letter as admissible evidence.
“We

review

for

abuse

the

letter
was

evidence

over

error

the

authenticate

to

because

the

We disagree.

of

discretion

a

district

ruling concerning the admissibility of evidence.”
v. McFadden, 753 F.3d 432, 442 (4th Cir. 2014).
requirement
evidence,

of

the

authenticating
proponent

must

Cornell’s

or

United States
“To satisfy the

identifying

produce

court’s

evidence

an

item

sufficient

of
to

support a finding that the item is what the proponent claims it
is.”

Fed. R. Evid. 901(a).

“‘[T]he burden to authenticate

under Rule 901 is not high – only a prima facie showing is
required,’

and

gatekeeper

in

satisfactory

a

‘district

assessing

foundation

court’s

whether
from

the

which
26

role

is

proponent

the

jury

to
has

could

serve
offered

as
a

reasonably

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find that the evidence is authentic.’”

United States v. Hassan,

742 F.3d 104, 133 (4th Cir. 2014) (quoting United States v.
Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)).
The

letter

purports

to

be

two

things:

written by Yates and received by Cornell.

a

correspondence

As to the former, the

Government presented lay testimony that the letter was in Yates’
handwriting.

Contrary to Cornell’s suggestion otherwise, this

type of evidence is sufficient to support a finding that Yates
was the author.

See Fed. R. Evid. 901(b)(2); United States v.

Dozie, 27 F.3d 95, 98 (4th Cir. 1994) (“[E]xpert opinion on
handwriting is not necessary.”).
The Government presented similar evidence to verify Cornell
as the recipient.

The testimony established that Cornell used

the alias “King Jay,” and the letter was found in his home after
his

arrest.

The

letter

also

accurately

antagonistic history between Cornell and Yates.

described

the

Such evidence

is more than sufficient to show that Cornell was the intended
and actual recipient.

See United States v. Reilly, 33 F.3d

1396, 1404 (3d Cir. 1994) (noting that the connection between a
letter and its intended recipient or source can be established
by circumstantial evidence, including its contents).
Moreover,

even

assuming

the

district

admitted the letter, any error was harmless.

court

improperly

We can think of no

scenario in which this letter could have improperly swayed the
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as

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No less than ten cooperating witnesses identified Cornell

the

head

introduced

of

the

primarily

conspiracy.

Greensboro
to

tribe,

connect

and

other

the

letter

defendants

to

was
the

See United States v. McMillon, 14 F.3d 948, 955

(4th Cir. 1994) (finding the admission of improper testimony to
be harmless error because evidence of the defendant’s guilt was
“overwhelming”).

IV.
Wilson

also

separately

raises

two

claims

of

error.

He

first argues that the evidence was insufficient to find that he
joined the alleged RICO conspiracy.

Second, he challenges the

sufficiency of the evidence supporting a portion of the jury’s
verdict.

We address these contentions in turn.

A.
A

defendant

challenging

“bears ‘a heavy burden.’”

the

sufficiency

of

the

evidence

United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997) (citation omitted).

We will uphold a

defendant’s conviction if, “viewing the evidence in the light
most favorable to the government, there is substantial evidence
in the record to support the verdict.”
444.

“[I]n

evidence

is

the

context

evidence

that

of
a

a

criminal

reasonable
28

McFadden, 753 F.3d at
action,

finder

of

substantial
fact

could

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accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.”

United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
To sustain a RICO conspiracy charge, the government must
prove that the defendant “‘knowingly and intentionally agreed .
.

.

to

conduct

enterprise.’”

or

participate

Mouzone,

687

F.3d

in
at

the
218

affairs

(citation

of

the

omitted).

Wilson argues, as he did below, that the evidence connecting him
to the alleged enterprise in this case, i.e., the Latin Kings,
was insufficient.

He points out that he never joined the gang

and his activities were confined to a few robberies done for his
personal benefit.
association”

with

According to Wilson, these facts show “mere
the

enterprise

and

agreement to participate in its affairs.

not

an

intentional

Opening Br. 39.

We have little trouble concluding that the Government has
met its burden on the sufficiency of the evidence.

See United

States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992) (“Once it
has been shown that a conspiracy exists, the evidence need only
establish
conspiracy

a

slight
to

connection

support

between

conviction.”).

the

defendant

The

evidence

and
at

the

trial

included testimony that Wilson participated in at least five
armed robberies with Latin King members.

He was present at the

meetings planning the robberies and present when the proceeds
were split with gang leaders.

From these facts, the jury could
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infer that Wilson understood the robberies to constitute Latin
King

activities,

and

that

advance the enterprise.
required.

by

joining

in

them,

he

agreed

to

Under our precedent, nothing more is

See Mouzone, 687 F.3d at 218 (“[A] defendant can

conspire to violate RICO . . . [by] simply agreeing to advance a
RICO undertaking[.]”); see also Salinas, 522 U.S. at 65 (“[I]t
suffices that [the conspirator] adopt the goal of furthering or
facilitating the criminal endeavor.”); Muskovsky, 863 F.2d at
1324 (“[T]he government must show [only] that the defendant ‘was
aware of the essential nature and scope of the enterprise and
intended to participate in it.’” (citation omitted)).
Although
statute

Wilson

does

not

is

correct

‘criminalize

“that
mere

the

RICO

conspiracy

association

with

an

enterprise,’” Mouzone, 687 F.3d at 218 (citation omitted), the
evidence

in

this

case

association”

with

the

Government’s

favor,

illustrates
Latin

the

far

Kings.

record

shows

more

When
that

than

his

construed
Wilson

“mere

in

the

directly

participated in several racketeering acts underlying the alleged
conspiracy.

Wilson has pointed to no authority suggesting that

a defendant with this level of participation in the activities
of the RICO enterprise can be considered a mere associate.
Finally, to the extent Wilson suggests that the Government
could not prove its case because he never officially joined the
Latin Kings, he is mistaken.

Outsiders who help the enterprise
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accomplish its illicit goals, thereby evidencing their agreement
to advance the cause, are fully liable under § 1962(d).

See

Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th
Cir. 2000) (“One must knowingly agree to perform services of a
kind which facilitate the activities of those who are operating
the enterprise in an illegal manner.”); see also Salinas, 522
U.S. at 64 (remarking that under general conspiracy principles,
“supporters are as guilty as the perpetrators”).

Accordingly,

we reject Wilson’s sufficiency challenge.

B.
In his final argument, Wilson claims that a portion of the
jury verdict is inconsistent with the evidence.

According to

Wilson, “[t]he [j]ury convicted [him] of predicate acts dating
as late as August 2011,” although “[n]o evidence indicated that
[he] remained in North Carolina after May of 2007.”
45.

Opening Br.

We find this claim lacks merit.
The special verdict sheet in this case consisted of two

parts.

The district court first instructed the jury to answer

Question 1(a), which asked whether they unanimously found the
identified defendant guilty of violating § 1962(d).

Only if the

jury answered yes to Question 1(a), did it move on to Question
1(b).
indicate

Under Question 1(b), the court instructed the jury to
the

type

or

types

of
31

racketeering

acts

that

it

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unanimously found were committed or intended to be committed by
some member of the conspiracy that the defendant had joined.
Wilson’s argument is directed at this latter part.
In

answering

identified

a

Question

series

of

1(b)

as

racketeering

to

Wilson,

acts

robberies in which he was directly involved.

the

separate

jury

from

the

Wilson argues that

this was fatal to his conviction because a majority of those
racketeering acts occurred after he left North Carolina and was
no longer in contact with his co-conspirators.
concludes,

“the

court

should

have

dismissed

Opening Br. 45.

This argument is a nonstarter.

who

a

has

joined

conspiracy

continues

to

Thus, Wilson
these

acts.”

“[A] defendant

violate

the

law

‘through every moment of [the conspiracy’s] existence,’ and he
becomes

responsible

for

the

acts

pursuit of their common plot.”
Ct.

714,

omitted).

719

(2013)

of

his

co-conspirators

in

Smith v. United States, 133 S.

(alteration

in

original)

(citations

“Once it is proven that a defendant was a member of

the conspiracy, the ‘defendant’s membership in the conspiracy is
presumed to continue until he withdraws from the conspiracy by
affirmative action.’”

United States v. Bennett, 984 F.2d 597,

609 (4th Cir. 1993) (citation omitted).

Wilson did not raise a

withdrawal defense and never requested such a jury instruction.
The jury, therefore, properly considered evidence related to the

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conspiracy up to its conclusion in determining its verdict as to
Wilson.

V.
For the reasons set out above, the judgment of the district
court is
AFFIRMED.

33