From Triad City Beat
A federal appellate judge finds fault with the government’s decision to exclude testimony from a defense witness in the trial of former Latin King leader Jorge Cornell, but a panel of judges is less sympathetic to arguments about the role of interstate commerce and instructions for the jury to continue deliberating.
A federal appellate judge for the Fourth Circuit sharply criticized the federal government’s decision to exclude testimony from a defense witness from the 2012 trial of former North Carolina Latin Kings leader Jorge Cornell.
Judge Robert B. King, who was appointed to the Fourth Circuit Court of Appeals by President Clinton, bristled when US Attorney Sonja Ralston argued that the court’s opinion in the 1999 case United States v. Rhynes on the matter of witness exclusion was “fractured.”
Ralston’s characterization slighted a ruling on witness exclusion handed down by the very court hearing the appeal of Cornell’s criminal racketeering conviction.
“It was eight to two,” riposted King, who wrote the opinion in the 1999 case. “That’s not very fractured.”
The exchange took place during oral arguments before a three-judge panel on Jan. 29 at the Fourth Circuit Court in Richmond, Va. for the appeal the convictions of Cornell and two codefendants.
Judge King asked Ralston if the prosecutors had heard of Rhynes before they moved to exclude testimony from Saralee Gallien, a friend of Cornell’s, during the 2012 trial. Ralston responded that she hadn’t been directly involved in the trial, but she didn’t think prosecutors were aware of the ruling.
“My guess is they didn’t know what they were talking about,” King said. “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.”
US District Court James A. Beaty Jr. ordered jurors to disregard Gallien’s testimony after the government accused her of violating a Rule 615 sequestration order, which prohibits witnesses from being in the courtroom to hear the testimony of others. The government argued at the time that she violated the sequestration order through a telephone conversation with Cornell during the time of the trial.
“You can cross-examine [witnesses], claim they were coached or something — that’s how you handle that,” King lectured Ralston. “But to throw witnesses off for a defendant when the Sixth Amendment provides otherwise, I don’t know why prosecutors would want to get into that.”
Ralston acknowledged that the rule doesn’t say anything about witnesses talking to others outside of the courtroom.
“It doesn’t say a word,” King said. “Absolutely nothing.”
The defendants argue that Judge Beaty abused his discretion by excluding Gallien’s testimony. For those and other reasons, the defendants are asking the appeals court to vacate their convictions, and dismiss their cases or call a new trial.
Gallien’s testimony contradicted earlier testimony by Charles Moore, a former Latin Kings member who agreed to cooperate with the government in the trial in exchange for assistance reducing his sentence, regarding an alleged drive-by shooting at Smith Homes in Greensboro. Moore also testified about an alleged check-kiting scheme perpetrated behind Cornell’s back by two other Latin Kings members.
That episode provides the strongest plank in the government’s case that the Latin Kings’ enterprise affected interstate commerce, a requirement needed to sustain the Racketeer Influenced and Corrupt Organizations Act, or RICO charges against the three. Cornell was sentenced to 28 years in federal prison as a result of the conviction.
Judge King advised Ralston that she was better off arguing that excluding Gallien’s testimony was merely “harmless error.”
“This is absolutely harmless,” Ralston said. “This witness offered one line of substantive testimony. And there’s no reason to believe the jury would have come out any differently when it checked off at least six other predicate acts to sustain the conspiracy where only two were needed.”
Ralston said the jury checked off only a single act of attempted murder on the verdict sheet. She added that she didn’t know for sure, but she thought the jury probably had another incident — a 2008 shooting at Maplewood Apartments — in mind. Lending support to Ralston’s argument, the jury acquitted codefendant Samuel Velasquez, who was implicated in the alleged Smith Homes shooting, suggesting the jury didn’t give much credence to Moore’s testimony.
Michael Patrick, Cornell’s lawyer, told the three-judge panel, which also included Judge Steven Agee and Judge Andre M. Davis, that the credibility of Moore’s testimony might have affected the jury’s judgment on far more than whether the drive-by occurred or not.
“Your honor, Charles Moore testified about multiple predicate acts,” Patrick told Agee. “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 defense noted in its appeal brief that none of Gallien’s telephone conversations dealt with trial testimony, and that they all occurred before Moore testified.
“In sum, the record contains no evidence to support the trial court’s conclusion there was violation of the sequestration order,” the brief reads. “There was no evidence that justifies the severity of the sanction. The government was allowed to attempt to impeach Ms. Gallien with her recorded phone calls. It was an abuse of discretion for the court to strike her testimony. This error by the trial court was hardly harmless and struck at the core of the jury’s truth-finding function stressed by in this court’s en banc decision in United States v. Rhynes.”
The appeals court sometimes renders decisions within two months of oral arguments, but Patrick told Triad City Beat that the complexity of this case makes such a speedy resolution unlikely. He added that the decision could take five months or longer.
The defendants argued with less success that the bar was set too low for the government to prove an interstate-commerce nexus with the criminal activities of individual members of the organization, and that the trial court abused its discretion in the manner in which jurors were instructed to render a verdict on the eve of Thanksgiving.
“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 brief reads. “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.”
Ralston said she believes the check-kiting incidents alone would have been enough to prove the Latin Kings were engaged in criminal racketeering affecting interstate commerce.
“Bank fraud targets an instrumentality of commerce,” she said. “If that was the only thing the enterprise did was bank fraud, that’s RICO conspiracy.
“If you look at the trial evidence,” Ralston continued, “we have people and things moving in interstate commerce: Mr. Cornell traveling to Detroit; traveling to New York to meet with other leaders of the Latin Kings. We have all of these guns that were used in all of these different crimes that were collected by the police that have traveled in interstate commerce.”
Judge Davis, who was appointed by President Obama, questioned whether Congress could “federalize every murder committed anywhere if a firearm that had traveled in interstate commerce was the weapon of choice.”
Ralston answered, yes.
“So there really is a police power in Congress — otherwise known as the Commerce Clause,” Davis mused.
The defendants also argued that Judge Beaty’s decision to give the jury a second Allen charge — an instruction to continue deliberating until a verdict is reached — on the day before Thanksgiving was coercive, and they should be given a new trial.
Brian Aus, representing Russell Kilfoil, argued that the split verdict suggested the jurors were confused.
“After basically a five-week trial we had Mr. Cornell; his brother — my client — Mr. Russell Kilfoil; and Ernesto Wilson — who there was no evidence was a Latin King — at the end of the courtroom being convicted,” Aus said, “while the odd thing was, we had Randolph Kilfoil, another one of the brothers — No. 3 — the jury knew he was serving time for the predicate act of an armed robbery of a Wal-Mart, and even asked about it. And yet he was acquitted.”
Judge Agee asked Aus if those facts didn’t work against the coercion argument, while Judge King added that the jury appeared to be “very discerning” and that “they gave individual consideration to each defendant.”
“The reason, you honor, is that basically you had the verge of Thanksgiving after four weeks of evidence,” he said. “Judge Beaty told the jury right from the beginning that ‘I am controlling what the schedule is going to be, Monday through Friday, except holidays. I’ll let you know if there’s any changes.’ He even told us during a bench conference, which is on the record, that, ‘I’d sure hate to have them come back on Friday.’ From all the deliberation from late Friday afternoon to Wednesday, Wednesday at 11:30… we’re told the jury is having trouble coming to a unanimous verdict. The note which we didn’t see until after the verdict says, ‘We can’t come to a unanimous decision as to any defendant,’ first of all. And that’s the most important keystone here, your honors.”
Sounding incredulous, Davis asked, “Is your contention that the judge should have said, ‘Okay, we’re gonna take a nice, long holiday weekend break, and you all go home, enjoy your Thanksgiving and come back on Monday’?”
“That’s fine, sure,” Aus replied.
Davis, for one, wasn’t buying it.
“As I understand the argument, it is the giving of an Allen charge was error, was an abuse of discretion,” he said. “And that’s not an easy argument for me to get my head around.”