US v. Jorge P. Cornell


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

Download PDF
Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 1 of 33 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, Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 2 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 3 of 33 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,” Appeal: 13-4630 which Doc: 86 is Filed: 03/16/2015 how they are others on the street. Pg: 4 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Defendants defendants. Government tribe’s proceeded Pg: 5 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 6 of 33 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 6 Appeal: 13-4630 case Doc: 86 Filed: 03/16/2015 against Defendants, Pg: 7 of 33 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 Appeal: 13-4630 Doc: 86 crime Filed: 03/16/2015 justifying the Opening Br. 23. Pg: 8 of 33 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 8 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 9 of 33 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, 9 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 10 of 33 156 (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 10 Appeal: 13-4630 Doc: 86 manufactured Filed: 03/16/2015 in Virginia Pg: 11 of 33 “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 Appeal: 13-4630 Doc: 86 referred to Filed: 03/16/2015 as predicate Pg: 12 of 33 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: 12 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 13 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 14 of 33 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 14 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 15 of 33 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. 15 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 16 of 33 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 16 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 17 of 33 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, Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 18 of 33 349 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 18 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 19 of 33 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.”); Appeal: 13-4630 Doc: 86 United Filed: 03/16/2015 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. 20 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 21 of 33 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. 21 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 22 of 33 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. 22 Appeal: 13-4630 Doc: 86 To Filed: 03/16/2015 impeach Moore’s Gallien as his witness. Pg: 23 of 33 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 23 Appeal: 13-4630 Doc: 86 courtroom. Filed: 03/16/2015 Pg: 24 of 33 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. 24 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 (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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 26 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 27 of 33 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 27 Appeal: 13-4630 jury. as Doc: 86 Filed: 03/16/2015 Pg: 28 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 29 of 33 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 29 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 30 of 33 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 30 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 31 of 33 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 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 32 of 33 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 32 Appeal: 13-4630 Doc: 86 Filed: 03/16/2015 Pg: 33 of 33 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?