The US Fourth Circuit Court of Appeals has turned down an appeal by North Carolina Latin Kings Leader Jorge Cornell, his brother and fellow Latin Kings member Russell Kilfoil and an associate named Ernesto Wilson.
The three-judge panel that heard the case in Richmond, Va. earlier this year upheld the judgment of the district court based on finding no reversible error. Summarizing the arguments of Cornell and his co-defendants, Judge Steven Agee wrote that the defendants made “several assertions of error concerning their trial, primarily focusing on the district court’s jury instructions and the sufficiency of the evidence.”
The opinion was published on March 16, less than two months after the judges heard arguments from the defendants’ lawyers and federal prosecutors.
Cornell, also known as King Jay, received a sentence of 28 years in prison after being found guilty of racketeering conspiracy, along with additional charges of violent crime in aid of racketeering activity and use of a firearm during and in relation to a crime of violence. Both of the latter charges were related to an April 2008 assault in which the government alleged that Cornell ordered Latin Kings members to retaliate against a supposed rival.
Cornell professed his innocence during his sentencing hearing, and said he never ordered any of his members to commit any act of violence. He said he kicked out members who committed crimes. Several community leaders testified about Cornell’s efforts to promote reconciliation among street gangs, encourage his members to pursue education and vocational development, and wide-ranging social justice efforts. The federal appellate opinion issued on March 16 provides a contrasting characterization of the Latin Kings: “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.”
Kilfoil, known as King Peaceful, and Wilson were each convicted of one count of racketeering conspiracy. Kilfoil was sentenced to 15 years and Wilson was sentenced to 17 years.
The appellate court’s decision was a surprise at some level.
Judge Robert B. King had sharply criticized the federal government’s decision to exclude testimony from defense witness Saralee Gallien during the January hearing, telling the prosecutors, “The Sixth Amendment gives defendants the right to call witnesses. It’s a really hazardous situation when the government goes off saying they can’t call a witness.”
Gallien was called by the defense to impeach the testimony of Charles Moore, a Latin Kings member who agreed to cooperate with the government. Moore testified that Cornell ordered Latin Kings to retaliate through a drive-by shooting in response to a beating inflicted on Moore. He also testified about a check-kiting scheme carried out by members of the organization, although testimony was ambiguous as to whether Cornell knew about and condoned the activity.
But the appellate court ruled that any error the district court might have made in excluding Gallien’s testimony was harmless, meaning “that a rational jury would have found the defendant guilty absent the error,” as articulated in the Fourth Circuit’s previous ruling in United States vs. Rhynes.
“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,” Agee wrote for the Fourth Circuit in the Latin Kings decision. “Accordingly, even had the jury believed Gallien’s testimony, it would have, at most, declined to identify murder or conspiracy to commit murder as a predicate act on the verdict form. Excluding the murder references form 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 the jury would have convicted Cornell regardless of Gallien’s testimony.”
Moore’s testimony about the alleged drive-by shooting might well have not swayed the jury considering that they acquitted defendant Samuel Velasquez, whom the government alleged to be the shooter.
Michael Patrick, Cornell’s lawyer, argued to the Fourth Circuit that the credibility of Moore’s testimony went far beyond the question of whether the drive-by shooting transpired.
“Your honor, Charles Moore testified about multiple predicate acts,” Patrick argued in January. “He testified about an arson. He testified about a check-kiting scheme. And he testified about a shooting at Smith Homes, which could have been either an attempted murder or a conspiracy. So he testified about all those things. What had prevented us from arguing to the jury was that if you don’t believe him about this — and we already had him contradicted about the arson — and you don’t believe him about this, then you shouldn’t believe him about anything he’s testifying about.”
The Fourth Circuit cited the alleged check-kiting scheme in ruling that the North Carolina Latin Kings’ activities substantially affected interstate commerce, a statutory requirement for a federal racketeering case. The opinion published on March 16 inaccurately characterizes Moore as being a participant in the scheme. In fact, testimony in the case indicated that Wesley Williams and Richard Robinson participated in the scheme.
Judge Agee wrote in the Fourth Circuit opinion that evidence that two members of the group “devised and executed a false check scheme” in which “the proceeds from this scam were then shared with gang leadership” was sufficient to meet the legal threshold for illegal activities that substantially affect interstate commerce.
The defense had argued in a brief before the hearing that the bar was set too low for the government’s contention of a nexus between interstate commerce and the criminal activities of individual members of the Latin Kings.
“The fraudulent taking of $2,575 by two persons not on trial may have had de minimus impact on interstate commerce, but the jury could have found the defendants did not engage in an enterprise which substantially impacted interstate commerce,” the defense argued. “The defense should have been allowed to argue to the jury that the acts did not have a substantial impact on interstate commerce, and there was little evidence of impact on commerce. The error was therefore not harmless.”
The panel of judges evidently found US Attorney Sonja Ralston’s argument more persuasive.
“Bank fraud targets an instrumentality of commerce,” the prosecutor argued during the January hearing. “If that was the only thing the enterprise did was bank fraud, that’s RICO conspiracy.”
The defense lawyers had also argued that US District Court Judge James Beaty’s instructions to the jury on Thanksgiving eve that they should continue deliberating until a verdicts was reached — known as an “Allen” charge — was coercive, and the defendants should receive a new trial. Brian Aus, the lawyer for Kilfoil, argued that the jury’s split verdict — convicting some defendants while acquitting others — suggested the jury was confused about their instructions. Judge Agee indicated during the hearing that he was not swayed, expressing the opinion that far from being confused, the jury seemed to be “very discerning” and appeared to give “individual consideration to each defendant.”
The Fourth Circuit opinion indicates the three judges were not persuaded by the defense argument 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,” Agee wrote.
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