Friday, September 21, 2012

RICO, Drug Convictions Affirmed

US v. Cornelius, 2012 WL 4075877 (10th Cir. 9/18/12)(published). Defendant convicted of one count of conspiracy to commit a RICO violation, and two counts of conspiracy to distribute drugs. The jury did not reach a verdict on the fourth count, which charged racketeering under RICO.

1. The Court rejects the defendant's argument that the fact the jury did not convict of the fourth count necessarily means there was insufficient evidence to convict him of conspiracy to commit a RICO violation. The court affirms that consistency in the verdicts is not required.
2. There was sufficient evidence to support the convictions for conspiracy to distribute drugs where there was evidence that the defendant repeatedly sold drugs to other people who in turn sold the drugs (an interdependent distribution scheme). Further supporting the verdict was the evidence that the defendant was a leader in the Crips.

3. Jury instruction issues: The defendant's challenge to a jury instruction was either waived or forfeited. Either way, the court says that the argument loses. The challenge to the Allen instruction was also rejected. Defendant was correctly denied an instruction on duress, based on his claim that the gang forced him to commit the illegal acts. On this issue, defendant had to show an immediate threat of death or serious bodily injury, well-grounded fear, and no reasonable opportunity to escape. In this case, the fact that the defendant was distancing himself from the Crips by moving out of the neighborhood showed that he could escape the threatened harm.

4. The court did not abuse its discretion in denying the defendant's motion for new trial, which was based on a claim of juror partiality. After the trial, one juror gave the government attorney a letter thanking the prosecutors for their service, offering to talk with them, and referring to the presiding juror's wilingness to "help [the government] rid this cancer in our society." "This kind of internal juror partiality is inevitable to some extent among any group of is not grounds to require an evidentiary hearing or a new trial."

5. The trial court erred in not imposing the mandatory 20-year sentence pursuant to 21 USC 841(b)(1)(A). Court properly considered the defendant's prior conviction even though it was the result of an allegedly unconstitutional search -- Defendant was statutorily precluded from challenging the conviction because it was more than five years old and it had not been overturned.

US v. Harris: 2012 WL 4075924 (10th Cir. 9/18/12)(published). Companion case to Cornelius, above.

1. Defendant challenged the jury instructions regarding the elements of conspiracy to commit a substantive RICO violation. The court holds "the existence of an enterprise is not an element of ยง 1962(d) conspiracy to commit a substantive RICO violation."

2. The evidence was sufficient to support the conviction. There was evidence of different groups of Crips, but also evidence that the different groups worked together, the members met regularly, and the conduct lasted over a period of years.

3. The trial court properly denied defendant's requested instruction regarding withdrawal from the conspiracy. Even though there might have evidence that the defendant withdrew from the gang, he failed to present sufficient evidence to prove that he withdrew from the conspiracy.

4. Sentencing issues; Because defendant did not challenge the 188-month sentence he received for wire fraud, run concurrently with the RICO conspiracy sentence of 188 months, the court exercised its discretion under the concurrent sentence doctrine and declined to review his challenges to the RICO conspiracy sentence.