United States v. Jorge Cornell , 780 F.3d 616 ( 2015 )

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,
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-JAB-
14; 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
AGEE, Circuit Judge:
This case arises from the prosecution of several members of
a violent street gang known as the Latin Kings. Following a
multi-week trial, a jury convicted Jorge Cornell, Russell
Kilfoil, and Ernesto Wilson (collectively “Defendants”) of
conspiracy to violate the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962(d), based on their
activities in connection with the Greensboro, North Carolina
chapter of the gang. On appeal, Defendants 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 street gang with power
centers in Chicago and New York. At the local level, including
in the state of North Carolina, 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. Full members of the
gang are traditionally given “King Names” or “Queen Names,”
3
which is how they are known within the organization and to
others on the street. The gang finances itself through weekly
membership dues and the proceeds of various illegal activities
its members undertake. These funds are used to buy food,
clothing, and guns, as well as to support members who are
incarcerated. Central to the organization is a culture of
violence, which is manifested through frequent disputes with
rival gangs. 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 and participate, directly and indirectly, in the
conduct of the affairs of [a criminal] enterprise through a
pattern of racketeering activity,” in violation of 18 U.S.C. §
1962(d). J.A. 155. The criminal enterprise was identified as
the Latin Kings, “a 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
Defendants proceeded to trial along with four co-
defendants. With the aid of several cooperating witnesses, the
Government presented extensive testimony about the Greensboro
tribe’s illegal activities, which included attempted murder,
armed robbery, and bank fraud. 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 by threats or
violence, and multiple acts of bank fraud.
5
Defendants moved for post-trial relief, raising many of the
same arguments now advanced on appeal. The district court
denied their motions and sentenced Cornell to 336 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 enterprise in violation of 18 U.S.C. §
1962(d). “[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 or participate in the affairs of the
enterprise; and . . . that each defendant knowingly and
willfully agreed that he or some other member of the conspiracy
would commit at least two racketeering acts.’” United States v.
Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (alteration in
original) (citation omitted). Thus, as part of its conspiracy
6
case against Defendants, the Government was required to
establish that the alleged RICO enterprise affected interstate
commerce.
Following this Court’s precedent, see United States v.
Gray, 137 F.3d 765, 772-73 (4th Cir. 1998) (en banc), the
district court decided that a de minimis effect on interstate
commerce is all that was required to satisfy RICO’s commerce
element. See also United States v. Williams, 342 F.3d 350, 354
(4th 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 not contravene the teachings of [the Supreme
Court.]”). The district court thus instructed the jury that
“[t]he 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 where the enterprise has not engaged in
economic activity. 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 element of the
7
crime justifying the federal reach of the RICO statute.”
Opening Br. 23. 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. Id. at
256. 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. 1 (2005), where the Supreme Court more recently
reiterated that “when a general regulatory statute bears a
substantial relation to commerce, the de minimis character of
individual instances arising under that statute is of no
consequence.” Id. at 17 (citations and internal quotation marks
8
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 ample evidence that the 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 Woodforest Bank,
which Robinson then cashed at Wachovia Bank. The proceeds from
this scam were then shared with gang leadership. This evidence,
standing alone, is sufficient to take this case outside the
reach of Waucaush. See United States v. Spinello, 265 F.3d 150,
9
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, interstate or
otherwise, by such activities as lending and 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 cases identifying banks as channels or
instrumentalities of interstate commerce). 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 robberies using
guns that traveled in interstate commerce. 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
manufactured in Virginia “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 Service, and pagers to transfer money and
communicate with each other in furtherance of the group’s
criminal purposes was sufficient to demonstrate 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.’” Mouzone, 687
F.3d at 218 (citation omitted). Racketeering acts, often
11
referred to as predicate 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 law and punishable by
imprisonment for more than one year. 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. The verdict forms (reproduced below) mirrored this
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
J.A. 4479.
As they did below, Defendants contend this instruction was
erroneous. Although Defendants’ exact argument on this point is
unclear 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. See Opening
Br. 13 (“Absent such an instruction, it is 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. Id. Thus, to secure
13
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 act’ in carrying the RICO enterprise
forward.”). Because completion of an overt 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 of racketeering acts the
conspirators agreed to commit. 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
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, coerced the jury into rendering an
unfavorable verdict. Derived from Allen v. United States, 164
U.S. 492 (1896), the commonly termed Allen charge is a
2
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
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). We review a
district court’s decision to give an Allen charge and the
content of such a charge for abuse of discretion. 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. In addressing the evidentiary
request, the district court 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 indicating that they could not reach a
unanimous verdict. Over Defendants’ objections, the district
16
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] who are more conscientious as you have been or
impartial as you have exhibited and more competent than the
twelve of you.” J.A. 4453. The court cautioned that it had no
opinion about the case and its instructions were not “intend[ed]
to force any of you to abandon clearly held views or
convictions.” J.A. 4453. 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. Also, as
noted earlier, in completing the verdict sheets 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. See United States v. Hylton,
17
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 case-
by-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
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 the language of the instruction, its
incorporation with other instructions, the timing of the
instruction, and the length of the jury’s subsequent
deliberations. 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 court’s instruction.”);
19
United States v. West, 877 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 submitted for their consideration. These
actions reflect a thoughtful and deliberate jury – not one
acting under an impulse of coercion. See United States 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. In Fossler, the Fifth Circuit found
the district court’s 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
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. See Cropp, 127 F.3d at
360 (affirming where the “district court gave the jurors a
lengthy Allen charge after the jurors [first] expressed an
inability to reach a consensus”); Hylton, 349 F.3d at 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
III.
Cornell individually raises two issues regarding the trial
evidence. First, he challenges the district court’s decision to
strike the testimony of defense witness Saralee Gallien.
Second, he challenges the admission of a letter purportedly
written to him by a former gang member. We find no merit in
either argument.
A.
At the beginning of trial, the district court granted the
Government’s motion to sequester witnesses consistent with
Federal Rule of Evidence 615. The district court’s ruling did
not specify any additional 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
To impeach Moore’s testimony, Cornell called Saralee
Gallien as his witness. 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 Gallien, the Government elicited
testimony that she made several phone calls to Cornell
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 incident] was
worked out between other parties and was amicable.” J.A. 4160.
Cornell first argues that the district court’s
sequestration order acted only to exclude witnesses from the
23
courtroom. 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 on the basis of a non-existent
violation was erroneous. Cornell separately argues that the
district court abused 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] right to present a defense,’ and thus
should be used sparingly.” (citation omitted)). “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
(citation omitted). 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 him a handwritten letter
found in the common area of his home. Addressed from “Squrl” to
“Jay,” the letter warned Jay that federal authorities were
25
investigating him and they had contacted possible cooperating
witnesses. The letter also acknowledged “bad blood” between the
two men. J.A. 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 court admitted the letter over Cornell’s
objection. He argues this decision was error because the
Government offered insufficient evidence to authenticate the
letter as admissible evidence. We disagree.
“We review for abuse of discretion a district court’s
ruling concerning the admissibility of evidence.” United States
v. McFadden, 753 F.3d 432, 442 (4th Cir. 2014). “To satisfy the
requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient 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 a ‘district court’s role is to serve as
gatekeeper in assessing whether the proponent has offered a
satisfactory foundation from which the jury could reasonably
26
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: a correspondence
written by Yates and received by Cornell. 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 described the
antagonistic history between Cornell and Yates. 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 court improperly
admitted the letter, any error was harmless. We can think of no
scenario in which this letter could have improperly swayed the
27
jury. No less than ten cooperating witnesses identified Cornell
as the head of the Greensboro tribe, and the letter was
introduced primarily to connect other defendants to the
conspiracy. 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 the sufficiency of the evidence
“bears ‘a heavy burden.’” 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.” McFadden, 753 F.3d at
444. “[I]n the context of a criminal action, substantial
evidence is evidence that a reasonable finder of fact could
28
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 or participate in the affairs of the
enterprise.’” Mouzone, 687 F.3d at 218 (citation 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. According to Wilson, these facts show “mere
association” with the enterprise and not an intentional
agreement to participate in its affairs. 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 a slight connection between the defendant and the
conspiracy to support conviction.”). The evidence at 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
infer that Wilson understood the robberies to constitute Latin
King activities, and that by joining in them, he agreed to
advance the enterprise. Under our precedent, nothing more is
required. 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 Wilson is correct “that the RICO conspiracy
statute does not ‘criminalize mere association with an
enterprise,’” Mouzone, 687 F.3d at 218 (citation omitted), the
evidence in this case illustrates far more than his “mere
association” with the Latin Kings. When construed in the
Government’s favor, the record shows that Wilson 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
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.” Opening Br.
45. 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). Under Question 1(b), the court instructed the jury to
indicate the type or types of racketeering acts that it
31
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 Question 1(b) as to Wilson, the jury
identified a series of racketeering acts separate from the
robberies in which he was directly involved. 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. Thus, Wilson
concludes, “the court should have dismissed these acts.”
Opening Br. 45. This argument is a nonstarter. “[A] defendant
who has joined a conspiracy continues to violate the law
‘through every moment of [the conspiracy’s] existence,’ and he
becomes responsible for the acts of his co-conspirators in
pursuit of their common plot.” Smith v. United States, 133 S.
Ct. 714, 719 (2013) (alteration in original) (citations
omitted). “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
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