United States v. Campbell , 347 F. App'x 923 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARRINGTON CAMPBELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00232-CCB-1)
Submitted: September 29, 2009 Decided: October 16, 2009
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Bonsib, Megan E. Green, MARCUS BONSIB, LLP, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harrington Campbell appeals his convictions for
conspiracy to distribute and possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846 (2006),
and structuring financial transactions, in violation of 31
U.S.C. § 5324 (2006). He was sentenced to 130 months’
imprisonment.
On appeal, Campbell asserts that joinder of his
conspiracy and structuring charges was improper; even if joinder
was proper, the district court abused its discretion in denying
Campbell’s motion to sever; the conspiracy charge was barred by
the statute of limitations; the district court abused its
discretion in allowing expert testimony regarding Campbell’s
alleged structuring; and the Government committed prosecutorial
misconduct by making improper remarks to the jury during direct
examination and its closing statement.
I. Joinder
Campbell first asserts that the district court erred
in improperly joining the conspiracy and structuring counts.
Additionally, if joinder was proper, Campbell contends that the
district court abused its discretion in denying his motion to
sever.
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Under Fed. R. Crim. P. 8, an indictment “may charge a
defendant in separate counts with two or more offenses if
[1] the offenses charged are of the same or similar character,
[2] are based on the same act or transaction, or [3] are
connected with or constitute parts of a common scheme or plan.”
United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005)
(quotation marks, alterations, and citation omitted). We review
de novo the district court’s refusal to grant a misjoinder
motion to determine whether the initial joinder of the offenses
was proper under Rule 8(a). United States v. Mackins, 315 F.3d
399, 412 (4th Cir. 2003). If joinder was proper, our review of
the denial of a motion to sever is for abuse of discretion under
Fed. R. Crim. P. 14. Id.Joinder of offenses only violates the Constitution if
“it results in prejudice so great as to deny a defendant his
Fifth Amendment right to a fair trial.” United States v. Lane,
474 U.S. 438, 446 n.8 (1986). Due to the inherent efficiency of
trying a defendant on related counts in the same trial, Rule
8(a) allows for very broad joinder. Cardwell, 433 F.3d at 385.
Joinder is proper so long as the joined offense have a logical
relationship to each other. See id. This logical relationship
exists “when consideration of discrete counts against the
defendant paints an incomplete picture of the defendant’s
criminal enterprise.” Id. These flexible requirements are “not
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infinitely elastic, however, because unrelated charges create
the possibility that a defendant will be convicted based on
considerations other than the facts of the charged offense.”
Id. (internal quotation marks and citations omitted).
After reviewing the record, we find that joinder of
the conspiracy and structuring charges in this instance was
proper, as consideration of the conspiracy and structuring
charges independently would yield an incomplete understanding of
the extent of Campbell’s criminal enterprise. During the trial,
the Government presented extensive evidence of Campbell’s drug
conspiracy. Campbell purchased cocaine from Jerome Bruce on
nine or ten occasions beginning in 1997. In total, Campbell
purchased fifty to sixty kilograms of cocaine from Bruce. In
2000, Campbell’s coconspirator arranged for an unemployed truck
driver to meet Campbell in Houston in order to transport cocaine
from Texas to Maryland. Between 2001 and 2002, Campbell sold
between two and six kilograms of cocaine to Reginald Jones, who
had originally approached Campbell at his car dealership in
search of a car.
During the same time period that Campbell was engaged
in this drug conspiracy, he repeatedly structured transactions
with his bank in order to avoid the currency transaction report
(CTR) filing requirements of the Bank Secrecy Act. Though a
mere temporal relationship between joined charges is
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insufficient to demonstrate a logical relation, Cardwell, 433
F.3d at 386, it is clear from the record that the structured
transactions at issue here served to hide evidence of Campbell’s
drug profits. That Campbell sold drugs out of his dealership is
further evidence of this relationship, as is the magnitude of
the illegally structured transactions. When viewed together,
the conspiracy and structuring charges paint a full picture of
the extent of Campbell’s crimes: in an attempt to hide the gains
from his illegal drug trafficking, Campbell engaged in wide-
spread structuring of financial transactions. Accordingly,
joinder of these charges was proper.
Campbell additionally argues that even if the charges
were properly joined, Fed. R. Crim. P. 14 nevertheless required
severance. Under Rule 14(a), “if the joinder of offenses for
trial appears to prejudice a defendant, the court may order
separate trials of counts.” Cardwell, 433 F.3d at 388(quotation marks and ellipses omitted). Therefore, even if
joinder is technically proper, certain circumstances may
nevertheless require severance. See id. However, such
instances are rare, as it is insufficient for a defendant to
demonstrate that severance offers him a better chance of
acquittal. See id. Instead, “a district court should grant a
severance under Rule 14 only if there is a serious risk that a
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joint trial would prevent the jury from making a reliable
judgment about guilt or innocence.” Id.Here, Campbell fails to demonstrate any prejudice
resulting from joinder of his conspiracy and structuring counts.
The district court provided instructions explicitly informing
the jury of the proper consideration of the joined charges.
Nevertheless, Campbell asserts that he “was presented with a
very real dilemma,” as he desired to testify in his own defense
as to the structuring charges but not to the drug conspiracy.
However, the district court correctly noted that “Campbell’s
possible desire to testify . . . as to the structuring
allegations [was] not a basis for severance as he would in any
event be subject to cross-examination by the government on the
source of the cash and the reasons for the alleged structuring.”
Thus, even if the charges were severed, Campbell would still be
cross-examined during the structuring trial regarding his
alleged drug conspiracy. Accordingly, as Campbell fails to
demonstrate any prejudice resulting from the joinder, the
district court did not abuse its discretion in denying
Campbell’s motion to sever.
II. Statute of limitations
We review de novo whether an indictment charges a
crime within the applicable statute of limitations. See United
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States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir. 2009). Under
18 U.S.C. § 3282 (2006), non-capital offenses are subject to a
five-year statute of limitations. Generally, a “statute of
limitations . . . runs from the last overt act during the
existence of the conspiracy.” Fiswick v. United States, 329
U.S. 211, 216 (1946); see also United States v. Jake, 281 F.3d
123, 129 (3d Cir. 2002) (quoting Fiswick); United States v.
Gregory, 151 F.3d 1030, 1998 WL 390176, at **6 (4th Cir. 1998)
(argued but not published). However, it is well-established
that there need be no overt acts in order for a drug conspiracy
to exist. United States v. Shabani, 513 U.S. 10, 15 (1994). In
such instances, the statute of limitations is satisfied if the
government “alleges and proves that the conspiracy continued
into the limitations period.” United States v. Seher, 562 F.3d
1344, 1364 (11th Cir. 2009). A conspiracy continues “as long as
its purposes have been neither abandoned nor accomplished, and
no affirmative showing has been made that it has been
terminated.” Id.After reviewing the record, we find it clear that
Campbell’s drug conspiracy charges were not barred by the
statute of limitations. Reginald Jones testified that he made
his final purchase from Campbell a few days before Jones was
arrested on August 29, 2002. As this was within five years of
the filing of the indictment, it is clear that Campbell’s drug
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conspiracy charges were not barred by the statute of
limitations.
III. Expert testimony
Campbell next asserts that the district court erred in
allowing the Government’s expert witnesses to testify as to the
ultimate issue when an FBI agent described instances in which
Campbell had structured financial transactions. Generally, we
review a district court’s decision to admit expert testimony for
abuse of discretion. United States v. Mohr, 318 F.3d 613, 622
(4th Cir. 2003). However, because Campbell did not object to
the expert’s testimony, our review is for plain error. See
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To
establish plain error, Campbell must “show that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” Id. Even if such a showing is made,
the decision to correct the error is in the discretion of this
court, based on a determination that the error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(internal quotation marks, alterations and citation omitted).
Generally, expert testimony of “scientific, technical,
or other specialized knowledge” is admissible if it “will assist
the trier of fact to understand the evidence or to determine a
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fact in issue.” Fed. R. E. 702. Conversely, such testimony is
inadmissible if it does not aid the trier of fact. United
States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002). Though
Rule 704(a) provides for the admissibility of expert testimony
that reaches the ultimate issue to be decided by the jury,
“testimony that merely states a legal conclusion is less likely
to assist the jury in its determination.” Id. Such testimony
is admissible even if it reaches the ultimate issue to be
decided by the trier of fact. Fed. R. E. 704(a).
Campbell’s argument hinges on his assertion that the
Government’s expert witness testified largely to legal
conclusions that were unhelpful to the jury. However, the
record reflects that the testimony presented by the FBI agent
was likely very helpful to the jury. The agent explained the
Bank Secrecy Act, and its requirement that a financial
institution must submit a currency transaction report whenever
an individual made a transaction with more than $10,000 in cash.
Additionally, the agent testified that the Bank Secrecy Act made
it a crime to attempt to structure a transaction in order to
evade the filing of a CTR. The agent gave hypothetical examples
of illegal structuring, in order for the jury to better
understand types of actions that would be consistent with
structuring. Finally, the agent testified at great length as to
several different ways in which deposits made by Campbell or
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other individuals on behalf of Campbell’s dealership were
consistent with illegal structuring. As the Government notes,
without the agent’s testimony, “the jury would be left to pore
over the deposit tickets or spreadsheet entries without guidance
as to what to look for.” Avoidance of such a confusion is the
purpose of expert testimony: to “assist the trier of fact to
understand the evidence or to determine a fact in issue.” Fed.
R. E. 702. Therefore, we find that the district court did not
err in allowing expert testimony in this regard.
IV. Prosecutorial misconduct
Finally, Campbell asserts that the Government
committed prosecutorial misconduct in statements made to the
jury. To prevail on a claim of prosecutorial misconduct,
Campbell must show: (1) the government’s remarks and conduct
were improper; and (2) the remarks or conduct prejudicially
affected his substantial rights so as to deprive him of a fair
trial. United States v. Golding, 168 F.3d 700, 702 (4th Cir.
1999). Because Campbell did not object below to the
Government’s comments, our review is for plain error. See
White, 405 F.3d at 215.
Concerning Campbell’s first allegation of misconduct,
we have held that “it is highly improper for the government to
refer to a defense witness as a liar.” United States v. Moore,
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11 F.3d 475, 481 (4th Cir. 1993). Accordingly, we find that the
Government acted improperly by referring to Ronald Brown, a
defense witness, as a liar.
However, in order for Campbell to succeed on his
prosecutorial misconduct claim, he must demonstrate that the
remarks prejudiced Campbell to the extent that he was deprived
of a fair trial. In determining whether the Government’s
improper remarks require reversal, we consider
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.
United States v. Harris, 498 F.3d 278, 293 (4th Cir. 2007).
Additionally, prejudice to the defendant may be ameliorated
through the district court’s use of curative instructions.
United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995).
Our review of the record leads us to find that the
remarks indicated by Campbell, while improper, did not prejudice
Campbell to the extent that he was deprived of a fair trial.
Campbell identified approximately six instances during closing
in which the Government stated that Ronald Brown, a defense
witness, lied. While six occurrences arguably cannot be
considered “isolated,” the fact that Campbell has identified
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only these six examples of the Government describing defense
witnesses as liars throughout an expansive oral argument
indicates to us that the misconduct was not extensive.
Additionally, while the Government’s comments may have
had some tendency to mislead the jury, the fact that prior to
closing statements, the judge instructed the jury that “the
statements, objections and arguments of counsel are not evidence
and should not be considered as evidence” significantly lessens
the chance that the jury was misled by the Government’s improper
statements. Though this instruction likely would not have the
same mitigating effect of a curative instruction given
immediately following the alleged improper conduct, see Morsley,
64 F.3d at 913, we presume that a jury has acted in a manner
consistent with its instructions, see United States v. Alerre,
430 F.3d 681, 692 (4th Cir. 2005). As the instructions told the
jury not to consider counsel’s statements, such as those made at
closing, as evidence, we presume the jury did just that.
Moreover, absent the Government’s improper remarks,
there was an abundance of competent proof establishing
Campbell’s guilt on both charges. Several witnesses, including
Jerome Bruce, Reginald Jones, and Norman Edmond, testified at
great length about their participation in a drug conspiracy with
Campbell. Two of these witnesses detailed either selling
cocaine to or purchasing cocaine from Campbell on repeated
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occasions. The third witness, Edmond, provided detailed
information regarding his participation as a carrier of drugs
for Campbell, attempting to aid Campbell in transporting the
drugs from Texas to Maryland. Additionally, the FBI agent’s
expert testimony for the Government provided significant
evidence establishing Campbell’s guilt for structuring more than
$1.7 million in deposits to both Charm City Motors’s and
Campbell’s personal bank accounts. Accordingly, we hold that
the Government’s references to defense witnesses as liars, while
improper, did not prejudice Campbell to the extent that he was
deprived of a fair trial.
Similarly, we reject Campbell’s claim that improper
vouching by the Government deprived him of a fair trial. The
Government may not vouch or bolster a government witness
testimony during its closing argument. See United States v.
Sullivan, 455 F.3d 248, 259 (4th Cir. 2006). “Vouching occurs
when the prosecutor indicates a personal belief in the
credibility or honesty of a witness; bolstering is an
implication by the government that the testimony of a witness is
corroborated by evidence known to the government but not known
to the jury.” Id. Campbell first contends that the Government
improperly vouched for Norman Edmond by stating that Edmond had
no obligation to testify and therefore had no motivation to lie.
However, this is not an example of vouching, as the prosecutor
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“made no statement about h[is] personal belief in the truth of
the [testimony],” see Sullivan, 455 F.3d at 259, but instead
merely argued that, given the fact that Edmond gained nothing
from testifying, he had no motivation to lie.
Additionally, Campbell argues that the Government
improperly vouched for Jerome Bruce. We conclude, however, that
the statements referenced by Campbell did not constitute
improper vouching, as the Government made no comments indicating
a personal belief in the matter. Instead, the Government merely
referenced parts of the testimony corroborating Bruce’s in-depth
knowledge of Campbell. Similarly, the Government’s statements
that Bruce could not get a reduction in sentence for his
testimony were not indicative of the Government’s belief in the
veracity of Bruce’s statement, but instead merely reinforced the
fact that Bruce had no motivation to lie, as he was not
receiving any benefit from his testimony.
Campbell also asserts that the Government improperly
vouched for Bruce during direct examination by eliciting
information from Bruce to the effect that Bruce had entered into
a plea agreement in which he agreed that he would testify
truthfully. However, there is no error in permitting the
Government to elicit, during direct examination, details of a
plea agreement containing a witness’s promises to be truthful.
United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983).
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Next, Campbell asserts that the Government improperly
vouched for Reginald Jones in stating during closing that “his
deal was what his deal was. His deal was to testify truthfully
and he did.” However, when taken in context, this statement was
a direct rebuttal to prior comments the defense attorney made
regarding a “deal” Jones made with the Government in exchange
for his sentence. The Government was simply stating that the
fact that Jones may have received a reduced sentence had no
bearing on his credibility, as any deal Jones received required
his truthful testimony. Therefore, this statement was nothing
more than an appropriate response to defense counsel’s attacks
against Jones’s truthfulness. Such “invited responses” that do
nothing more than “right the scale” do not warrant reversal of a
conviction. United States v. Young, 470 U.S. 1, 12-13 (1985).
Campbell also assigns error to the Government’s
statement, with regard to the Government’s witnesses, that “It’s
not that their sentence is going to get cut. If they get on
that witness stand and lie, and they falsely accuse somebody,
they’re looking at perjury charges, ladies and gentlemen.”
Again, this statement was merely an invited response to defense
counsel’s assertions that the Government witnesses were
testifying in exchange for a reduced sentence. Young, 470 U.S.
at 12-13. Though Campbell asserts that this statement
improperly relied on evidence outside of the record, this
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assertion is belied by the record, as the Government’s comments
merely reiterated the fact that prior to taking the stand, each
witness swore an oath to tell the truth, an oath made on the
record and before the jury.
Campbell next takes exception to the Government’s
statement regarding Jerome Bruce’s prior obstruction of justice.
However, we conclude the challenged statement was nothing more
than a fair characterization of Bruce’s plea agreement, which
reflects that Bruce was to receive both a two-level enhancement
for obstruction of justice as well as a three-level reduction
for acceptance of responsibility. Moreover, the Government’s
statement that one who obstructed justice ordinarily would not
get a departure for acceptance of responsibility is an accurate
restatement of the plea agreement, which states that a
“reduction [for acceptance of responsibility] normally is not
available to persons who obstruct justice.” Accordingly,
Campbell’s argument is without merit.
Finally, Campbell asserts that the Government
committed prejudicial error in referring to the Defendants as
criminals and stating that “all that is necessary for the
triumph of evil over good is for good men and women to do
nothing.” While Campbell argues that this advocacy was the
equivalent of instructing the jury that if they did not vote to
convict, evil would triumph, he fails to persuasively articulate
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the manner in which these comments were prejudicial to his
defense. Due to the isolated nature of these remarks, as well
as the overwhelming evidence of Campbell’s guilt, we cannot
conclude that Campbell was deprived of a fair trial. See United
States v. Curry, 993 F.2d 43, 46 (4th Cir. 1993) (finding
defendant failed to establish prejudice where remarks were
isolated and evidence of guilt was overwhelming).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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