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Media Alerts - United States v. Cornell -- Fourth Circuit
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April 9, 2015
  United States v. Cornell -- Fourth Circuit
Headline: No Relief for Latin King Gang Members and Associate

Areas of Law: Criminal Law, Criminal Procedure

Issues Presented: Whether there was sufficient evidence; and whether the district court's jury instructions constituted reversible error for the defendants' RICO convictions.

Brief Summary: Defendants Jorge Cornell, Russell Kilfoil, and Ernesto Wilson, along with three other co-defendants, were charged with conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Specifically, Defendants were charged 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." The men were alleged to be involved with a North Carolina chapter of the violent street gang the Latin Kings. The gang's alleged illegal activities included attempted murder, armed robbery, and bank fraud. The jury convicted Cornell, Kilfoil, and Wilson, but acquitted the other co-defendants.

The Defendants appealed to the United States Court of Appeals for the Fourth Circuit, which found there was no reversible error and affirmed the convictions. The first issue raised on appeal was whether there was sufficient evidence to convict defendants of the RICO conspiracy charge. To satisfy a RICO charge under § 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." Focusing on the interstate commerce aspect, the Defendants contested the district court's instruction that "[t]he Government must prove . . . the enterprise activity affected interstate or foreign commerce in any way, no matter how minimal." (Emphasis added.) The Fourth Circuit concluded that the de minimis instruction was appropriate in light of the 2005 Supreme Court decision in Gonzales v. Raich. The court further concluded there was more than sufficient evidence to meet the minimal threshold required.

The Defendants also argued that the district court gave an inappropriate Allen charge - a supplemental instruction given by the court when the jury has reached an impasse in its deliberations and is unable to reach a consensus. An Allen charge must not coerce the jury, and it must be fair, neutral and balanced. The district court gave two Allen charges to the jury--the first was on the second day of deliberations, and neither party objected. Then, on the fourth day of deliberations, the day before Thanksgiving, the jury sent a note indicating another impasse. The district court told the jury that certain time, money and resources had been put into the trial, and that 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." After three more hours of deliberations, the jury convicted Cornell, Kilfoil, and Wilson, but acquitted three other co-defendants. On appeal, Defendants argued that the second Allen charge was improperly coercive. The Fourth Circuit held there was no coercion because the jury continued deliberation for over three hours after the Allen charge and issued a split verdict convicting three Defendants and acquitting the others, demonstrating conscientious deliberations.

Cornell individually raised two issues regarding the evidence admitted at trial: the court's striking of a defense witness' testimony and the admission of a letter purportedly written to him by a former gang member. The Fourth Circuit concluded that any error resulting from the evidentiary rulings was harmless.

Finally, Wilson raised two separate issues on appeal. First, he argued there was insufficient evidence to conclude he joined the RICO conspiracy because he never actually joined the gang. While the Fourth Circuit agreed that "mere association" with a criminal enterprise is not sufficient to sustain a RICO conspiracy charge, the court held there was more than sufficient evidence to conclude that Wilson "knowingly and intentionally agreed . . . to conduct or participate in the affairs of the enterprise." Wilson had helped plan the robberies, participated in at least five of them, and split the proceeds with gang leaders. Wilson also challenged the sufficiency of the evidence supporting his conviction because he was convicted of acts dating as late as August, 2011, though he left North Carolina in May, 2007. The Fourth Circuit rejected this argument because a defendant who joins a conspiracy is responsible for the acts of the conspiracy "through every moment of [the conspiracy's] existence." An exception to this rule exists if a defendant takes an affirmative act to remove himself from the conspiracy. However, in the absence of such an act in the instant case, Wilson remained liable for the acts of the conspiracy, even after leaving the state. The court did note that Wilson's defense did not raise a withdrawal defense and never requested such a jury instruction. Therefore, the Fourth Circuit affirmed the judgment of the district court and the conviction and sentence of the three Defendants.

To read the full text of this opinion, please click here.

Panel: Judges King and Agee, and Senior Judge Davis

Argument Date: 01/29/2015

Date of Issued Opinion: 03/16/15

Docket Number: No. 13-4630

Decided: Affirmed by published opinion.

Case Alert Author: Megan Raker, Univ. of Maryland Carey School of Law

Counsel: 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.

Author of Opinion: Judge Agee

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/09/2015 02:19 PM     4th Circuit  

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