United States v. Charles E. Davidson ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3346
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Charles Edwin Davidson, *
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Defendant - Appellant. *
*
*
___________ Appeals from the United
States
District Court for the
No. 96-3396 Eastern District of
Arkansas.
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Earnes Lee Smith, *
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Defendant - Appellant. *
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No. 97-1190
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United States of America, *
*
Plaintiff - Appellee, *
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v. *
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Dwayne Harold Smith, *
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Defendant - Appellant. *
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Submitted: April 16, 1997
Filed: August 8, 1997
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Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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LOKEN, Circuit Judge.
These are consolidated appeals from the two trials
needed to resolve a ten-count indictment. After the
first trial, a jury convicted Charles Davidson of
racketeering, attempted interstate murder-for-hire,
transferring a firearm for murder, distributing
methamphetamine, mail fraud, and arson affecting
interstate commerce. However, it could not reach a
verdict on Count II charging Davidson, Earnes Smith, and
Dwayne Smith with a second interstate murder-for-hire.
After a retrial of Count II, the second jury convicted
all three defendants. Davidson appeals his racketeering
and murder-for-hire convictions at the first trial. All
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three appeal their convictions at the second trial,
raising various evidentiary issues. Finally, Dwayne
Smith raises ineffective assistance of counsel issues.
We affirm all three convictions.
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I. Sufficiency of the Evidence Issues.
Davidson challenges the sufficiency of the evidence
at the first trial to convict him of racketeering, for
which the district court1 sentenced him to 360 months in
prison, and of attempted interstate murder-for-hire, for
which he received a concurrent 120-month sentence.2
Davidson and the Smiths challenge the sufficiency of the
evidence at the second trial to convict them of aiding
and abetting the interstate murder-for-hire of Darryl
Cooperwood, for which each received a sentence of life in
prison without possibility of parole. We will separately
address these sufficiency-of-the-evidence issues, viewing
the facts in the light most favorable to the jury
verdicts. See United States v. Kragness, 830 F.2d 842,
847 (1987). We reject as without merit Davidson’s
additional contention that we should grant him a new
trial because no government witness was credible. See
United States v. Reeves, 83 F.3d 203, 206 (8th Cir.
1996).
A. The RICO Conviction. Witnesses at the first trial
portrayed Davidson as the leader of a local criminal
organization. His auto lot and body shop were the base
for theft and disassembly of stolen cars and trucks. His
associates burglarized houses, defrauded insurers, sold
1
The HONORABLE GEORGE HOWARD, JR., United States District Judge
for the Eastern District of Arkansas.
2
Davidson does not challenge on appeal his conviction and concurrent
sentences for distribution of methamphetamine (240 months), transfer of a firearm
for murder (120 months), two counts of arson (120 months), and mail fraud (60
months).
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drugs, and committed arson and murder to punish
Davidson’s enemies and protect his criminal enterprise.
Numerous witnesses accused Davidson of a wide variety of
crimes, including the attempted murder of his half-
sister, the arson of her attorney’s home, and an attempt
to hire the local sheriff to murder a former accomplice.
The jury convicted Davidson of violating the federal
anti-racketeering statute, commonly known as RICO, which
makes it a crime “for any person employed
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by or associated with any enterprise . . . to conduct or
participate . . . in the conduct of such enterprise’s
affairs through a pattern of racketeering activity . . .
.” 18 U.S.C. § 1962(c). On appeal, Davidson argues that
the government failed to present sufficient evidence of
a RICO “enterprise.”
An “enterprise” is defined in RICO to include “any
individual . . . or other legal entity, and any . . .
group of individuals associated in fact although not a
legal entity.” 18 U.S.C. § 1961(4). The enterprise at
the heart of a RICO violation may be a legitimate
business, for example, one used to launder the proceeds
of criminal activity, or may itself be an entirely
criminal “association in fact.” When the government
alleges that a criminal organization is the RICO
enterprise, it must define and prove the existence of an
enterprise that is “separate and apart from the pattern
of [criminal] activity in which it engages.” United
States v. Turkette, 452 U.S. 576, 583 (1981). In
applying Turkette, we look at whether the alleged
enterprise has common or shared purposes, some continuity
of structure and personnel, and a structure distinct from
that inherent in the alleged pattern of racketeering
activity. See, e.g., Kragness, 830 F.2d at 855. Our
focus is to ensure that RICO’s severe penalties are
limited to “enterprises consisting of more than simple
conspiracies to perpetrate the predicate acts of
racketeering.” United States v. Bledsoe, 674 F.2d 647,
664 (8th Cir.), cert. denied, 459 U.S. 1040 (1982).
Davidson argues that the government proved only
“sporadic criminal predicate acts,” not the requisite
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common purpose, and that there was no proof of an
organization having the requisite continuity and a
structure distinct from that inherent in the pattern of
racketeering offenses. We disagree. Davidson ran a small
but prolific crime ring. Initially, stepson Tim
Scarbrough and Roger Rollet were the foot soldiers,
stealing cars and trucks and burglarizing homes. Davidson
“chopped” the stolen cars in his shop and fenced the other
stolen goods. But Davidson was more than an outlet for
stolen goods. He instructed Scarbrough and Rollet to burn
cars and houses, both for insurance proceeds and for
intimidation. He financed their drug activities and
provided
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other support for his criminal associates. When
Scarbrough went to prison, Tony Webster filled in,
stealing cars, supplying Davidson with drugs for
distribution, and serving as his enforcer, while Davidson
paid $5,000 to murder Cooperwood for setting Scarbrough
up with an undercover police officer.
The length of these associations, the number and
variety of crimes the group jointly committed, and
Davidson’s financial support of his underlings demonstrate
an ongoing association with a common purpose to reap the
economic rewards flowing from the crimes, rather than a
series of ad hoc relationships. See Turkette, 452 U.S.
at 583. Davidson’s continued leadership provided
continuity of personnel at the top of the criminal
organization. See United States v. Lemm, 680 F.2d 1193,
1200 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983).
Its members had “the family and social relationships” that
helped define a criminal RICO enterprise in United States
v. Leisure, 844 F.2d 1347, 1363 (8th Cir. 1988), cert.
denied, 488 U.S. 932 (1988). Numerous acts of retaliation
and intimidation committed at Davidson’s direction, and
his attempt to involve the local sheriff in a murder-for-
hire, evidence a criminal enterprise broader than and
distinct from its constituent criminal activities. As in
Kragness, 830 F.2d at 857, “the activities of the group
exhibit a pattern of roles and a continuing system of
authority; the essential identity of the enterprise
endured.” The evidence was sufficient to convict Davidson
of violating 18 U.S.C. § 1962(c).
B. The Cooperwood Murder. In 1991, stepson
Scarbrough went to prison for selling marijuana to an
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undercover officer. At the second trial, Sandra Querry
testified that in March 1992 Davidson told her he would
pay $5,000 for Cooperwood’s murder because Cooperwood had
introduced Scarbrough to the undercover officer. Querry
relayed this offer to her boyfriend, Earnes Smith. On
March 21, Querry accompanied Earnes to the Little Rock
Airport where they met his son Dwayne arriving from New
Orleans. Cooperwood was murdered later that week. The
morning after the murder, Querry overheard Earnes and
Dwayne talking about making sure “the body was dead,” and
Earnes told Querry to go “pick up his money.” She then
drove to Davidson’s
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house. Davidson gave her $4400, admitting he was $600
short and telling Query he would “get with [Earnes] later
and settle up the rest.” The jury convicted all three
defendants of aiding and abetting an interstate murder-
for-hire in violation of 18 U.S.C. § 1958(a), which
provides in relevant part:
Whoever travels in or causes another . . . to
travel in interstate or foreign commerce . . .
with intent that a murder be committed in
violation of the laws of any State . . . as
consideration for the receipt of, or as
consideration for a promise or agreement to pay
. . . if death results, shall be punished by
death or life imprisonment . . . .
Section 1958 does not prohibit murder. It outlaws
causing travel or the use of interstate commerce
facilities with the intent that murder-for-hire be
committed. See United States v. Delpit, 94 F.3d 1134,
1149 (8th Cir. 1996); United States v. McGuire, 45 F.3d
1177, 1186 (8th Cir.), cert. denied, 115 S. Ct. 2558
(1995). The government’s theory, which the jury obviously
accepted, was that Davidson’s promise of money for
Cooperwood’s murder resulted in Earnes Smith causing
Dwayne Smith to travel in interstate commerce, each of the
three intending that murder-for-hire be committed.
Davidson and Earnes argue there was insufficient evidence
they caused Dwayne to travel in interstate commerce with
intent to murder. Dwayne argues there was insufficient
evidence he traveled in commerce with intent to murder.
We disagree.
Defendants note that there was no evidence Davidson
met with Earnes to discuss a murder-for-hire, no direct
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evidence the Smiths spoke on the phone prior to Dwayne’s
arrival in Arkansas, and no proof that Dwayne intended to
commit murder when he made what they describe as a routine
trip to visit his father. However, the government may
establish its case through circumstantial evidence, and
the jury may draw all reasonable inferences from that
evidence. See United States v. Davis, 103 F.3d 660, 667
(8th Cir. 1996), cert. denied, 65 USLW 3798 (1997). There
was direct evidence that Davidson made an offer to pay for
Cooperwood’s murder to someone he could expect to
communicate that offer to Earnes Smith. There was
circumstantial evidence
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that the Smiths talked by phone prior to Dwayne’s arrival
in Arkansas. Telephone records show a March 18, 1992,
call from Earnes’s home in Arkansas to Dwayne’s home in
New Orleans, where he lived with his mother, and calls
from Dwayne’s home to Earnes’s home on March 19 and again
on March 21, the day Earnes picked Dwayne up at the Little
Rock airport.
There was also circumstantial evidence that Dwayne
came to Arkansas to aid in a murder-for-hire, meaning that
the Smiths had discussed the scheme by phone. Dwayne
stayed at Sandra Query’s apartment in Arkansas where he
could keep a low profile. Though unemployed at the time,
he purchased a plane ticket to Arkansas, paid $500 in
traffic warrants while in Arkansas, purchased a Lincoln
Continental from Earnes for $500, and returned to New
Orleans with $1000 cash. After Querry collected the hit
money from Davidson, Dwayne told her, “[i]f I give pops
a thousand dollars for the car, then I would have a
thousand dollars left for myself.” Querry responded that
“it was $5000.” Angrily, Dwayne replied, “pops got me
again.”
The government’s evidence must have impressed the
defense, for Dwayne Smith took the stand at the end of the
trial. He flatly denied talking to his father by phone
before arriving in Arkansas. He explained where he got
money to spend in Arkansas, but the explanation impeached
his earlier testimony that he never sold drugs illegally
before 1992. And he denied admitting the murder of
Cooperwood to a boyhood friend who had testified for the
government. Obviously, the jury disbelieved this
testimony. When there is other corroborative evidence of
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guilt, the jury can properly draw an inference of guilt
from its disbelief of the defendant’s denials. See United
States v. Brown, 53 F.3d 312, 314-15 (11th Cir. 1995),
cert. denied, 116 S. Ct. 909 (1996); United States v.
Zafiro, 945 F.2d 881, 888 (7th Cir. 1991), aff’d on other
grounds, 506
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U.S. 534 (1993). We conclude the evidence was sufficient
to convict each defendant of aiding and abetting a
violation of § 1958(a).3
C. Davidson’s Second Murder-for-Hire Conviction.
Dottie Holmes is Davidson’s half sister. Though once
close, their relationship deteriorated after Davidson
married Mona Davidson. In the spring of 1994, Mona phoned
her brother, David Travis, saying that Davidson would have
a job for him if Travis came to Arkansas from his home in
the State of Washington. When Travis arrived, Davidson
offered him $15,000 to kill Dottie Holmes. The jury
convicted Davidson of violating § 1958 by aiding and
abetting in the use of an interstate facility (the
telephone) with intent that a murder-for-hire be
committed. Davidson argues the evidence was insufficient
because Travis did not know of the murder scheme until he
arrived in Arkansas and therefore lacked the requisite
intent to murder.
This argument is foreclosed by the plain language of
§ 1958. The statute is violated by anyone who “uses or
causes another (including the intended victim) to use .
. . any facility in interstate or foreign commerce, with
intent that a murder be committed.” Davidson caused Mona
to solicit a murder-for-hire by telephone. The statute
does not say that both parties to the resulting telephone
conversation must be aware of the murder scheme. Any
3
There was little if any evidence that Davidson knew or had reason to know
that Earnes Smith would summon Dwayne from New Orleans to assist in the
murder-for-hire. Davidson does not argue that this precludes his conviction for
aiding and abetting a violation of § 1958, and we do not consider the issue.
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party who uses the telephone or causes its use with the
requisite murderous intent violates § 1958(a). See United
States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir. 1992).
Mona Davidson’s testimony as a government witness provides
a sufficient basis for the jury’s conclusion that Davidson
intended to contract for murder when he caused Mona to
make the telephone call to Travis.
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II. Evidentiary Issues.
A. Evidence of Davidson’s Additional Crimes. At the
second trial, Dottie Holmes, Michael Holmes, and Melvin
Redman each testified that Davidson admitted orchestrating
the Cooperwood murder. They also testified to other
Davidson misdeeds. Dottie Holmes testified that she was
afraid of Davidson because of his criminal activities --
“[s]tolen vehicles, burning people’s houses, burning
people’s vehicles” -- and described how Davidson harassed
her after she refused to deed certain property to him.
Michael Holmes described Davidson’s attempts to plant
drugs in his truck and to burn their home after Dottie’s
relationship with Davidson soured. Melvin Redman
described hiring Davidson to steal a truck for Redman’s
sister-in-law. On appeal, Davidson argues that these
other crimes had nothing to do with the Cooperwood murder
and therefore the district court abused its discretion in
admitting this evidence under Federal Rule of Evidence
404(b).
The district court took up this issue prior to the
start of the second trial. After the prosecution
explained that the evidence would be relevant because fear
of Davidson explained why these witnesses had not come
forward sooner, and because Davidson’s relationship with
Dottie Holmes was relevant background to her testimony as
to Davidson’s admissions, Davidson argued that the
evidence should be excluded as more prejudicial than
probative -- a Rule 403 objection. The district court
ruled that the evidence was relevant and offered to give
a cautionary instruction to avoid unfair prejudice. This
ruling was well within the court’s broad evidentiary
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discretion. See, e.g., United States v .Wagoner, 713 F.2d
1371, 1375 (8th Cir. 1983). Moreover, any error was
harmless. More than a dozen people testified that
Davidson admitted soliciting Cooperwood’s murder,
including Davidson’s wife, his half-sister, his stepson,
his brother-in-law, old friends, and criminal associates.
Davidson was convicted by this overwhelming testimony, not
by descriptions of his other crimes.
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We also reject Earnes Smith’s contention that
evidence of Davidson’s past crimes should have been
excluded because it was prejudicial to Smith as Davidson’s
co-defendant. The district court did not abuse its
discretion by admitting this evidence but giving the jury
a cautionary instruction that it was admissible only
against Davidson. See United States v. Mason, 982 F.2d
325, 327 (8th Cir. 1993).
B. An Admission by Earnes Smith. At the second
trial, Sandra Querry testified that some time after the
Cooperwood murder, Earnes Smith told her that Davidson had
approached him about “doing another job” and Earnes
refused, telling Davidson “if he didn’t have the backbone
or the guts to do it himself, [I] wasn’t going to do it
for him.” The district court admitted this testimony
because it tended to prove a prior relationship between
Smith and Davidson and “the inferences are far from
speculation and conjecture.” On appeal, Smith and
Davidson argue that this testimony should have been
excluded because it did not clearly relate to Cooperwood’s
murder and therefore invited the jury to speculate
prejudicially about what the “other job” might have been.
We will reverse only for clear abuse of the district
court’s broad discretion to admit or exclude evidence at
trial. See United States v. Emmanuel, 112 F.3d 977, 979
(8th Cir. 1997). We agree with the court that Smith’s
admission about “another job” requiring “guts” evidenced
a relevant prior relationship with Davidson. Moreover,
to the extent the link to Cooperwood’s murder was weak,
any resulting prejudice was weak. In other words, the
district court did not abuse its discretion in admitting
this testimony because its probative value was at least
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as strong as any unfair prejudice. See United States v.
Mihm, 13 F.3d 1200, 1204 (8th Cir. 1994).
C. The Motion for Mistrial. Prior to the second
trial, the prosecution agreed to avoid references to the
death of Marlene Holt, Davidson’s former girlfriend.
Sandra Querry nonetheless gave the following testimony on
direct examination:
Attorney: What was the purpose for all this
moving around that you did?
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Querry: Because I was in fear for my life after
my statement.
Attorney: Who were you in fear for you life
from?
Querry: Butch Davidson.
Attorney: Why is that?
Querry: Because I know his reputation, and I
felt like if I made a
statement against him, that Marlene was already
dead, and I didn’t want to be
next.
Defense counsel moved for a mistrial. The district
court instead offered a cautionary instruction, which
defendants declined. On appeal, Davidson and Earnes Smith
argue that the prejudice from this testimony could not be
cured by a cautionary instruction and therefore the
district court erred in denying a mistrial. The reference
to Marlene Holt was brief and vague, “simply one of those
unexpected developments that occurs in the course of a
trial.” United States v. Flores, 73 F.3d 826, 832 (8th
Cir.), cert. denied, 116 S. Ct. 2568 (1996). The district
court has broad discretion to grant or deny a motion for
mistrial because it is in a far better position to weigh
the effect of improper testimony, and because less drastic
measures such as a cautionary instruction are generally
sufficient to alleviate prejudice flowing from improper
testimony. We conclude there was no abuse of discretion
in denying defendants a mistrial.
D. The Autopsy Photographs. The district court
admitted into evidence four photographs taken during the
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autopsy of Darryl Cooperwood. Davidson and Earnes Smith
argue that the court abused its discretion because the
photos were cumulative to crime scene photos and therefore
unduly prejudicial. A trial court has discretion to admit
a relevant photograph unless it is “so gruesome or
inflammatory that its prejudicial impact substantially
outweigh[s] its probative value.” United States v.
Petary, 857 F.2d 458, 463 (8th Cir. 1988). Though
graphic, the autopsy photographs were less gruesome than
the crime scene photos, and they helped explain the
testimony
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of Dr. William Sturner, the government witness who
performed the autopsy. Their admission was not an abuse
of discretion.
III. Ineffective Assistance of Counsel.
At sentencing, Dwayne Smith accused his trial counsel
of ineffective assistance. The district court continued
the sentencing and appointed new counsel, who moved for
a new trial on this ground. After a hearing, the district
court denied the motion. On appeal, Smith argues that
trial counsel was constitutionally deficient in two
respects.
First, Smith argues that counsel failed to call
Nettie Jones, Smith’s girlfriend, to testify that Smith
usually lived with Ms. Jones, not his mother, during March
1992 when the phone calls were made between Earnes Smith’s
residence in Arkansas and the mother’s residence in New
Orleans. At the new trial hearing, Ms. Jones could not
be located and therefore did not testify. Smith’s trial
counsel testified that Nettie Jones was not among the
potential witnesses Smith asked him to interview. Smith’s
mother testified that she refused to attend the second
trial and that Smith did stay at her home from time to
time during the period in question. (Smith testified at
trial that he was living with his mother.) On this
record, counsel was not ineffective in failing to call
Nettie Jones. See Bowmann v. Gammon, 85 F.3d 1339, 1345
(8th Cir. 1996), cert. denied, 117 S. Ct. 1273 (1997)
(decision not to call a witness is “virtually
unchallengeable” trial strategy).
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Second, Smith argues that counsel was ineffective for
failing to move for a severance because Davidson was a
career criminal responsible for multiple murders,
attempted murders, and arson whose presence as a co-
defendant prejudiced Smith’s defense. At the new trial
hearing, Smith did not ask counsel to explain why he did
not seek a severance, so the record will not support the
conclusion “that the behavior of counsel fell measurably
below that which might be expected from an ordinary
fallible lawyer.” Nolan v. Armontrout, 973 F.2d 615, 618
(8th Cir. 1992). Moreover, Smith
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was not prejudiced because a motion for severance would
have been denied. Earnes Smith moved for severance before
the first trial, and his motion was denied; there was less
reason for severance at the second trial because
additional criminal charges against Davidson were no
longer at issue. Severance will not be granted simply
because the evidence against one defendant is stronger,
or because one defendant believes that his chances for
acquittal would be better in a separate trial. See Zafiro
v. United States, 506 U.S. 534, 540 (1993); United States
v. Humphreys, 982 F.2d 254, 259 (8th Cir. 1992), cert.
denied, 510 U.S. 814 (1993). Dwayne Smith’s motion for
a new trial was properly denied.
The judgments of the district court are affirmed.
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and
dissenting.
I concur in all of the court's opinion except the
portion of it that upholds Dwayne Smith's conviction under
18 U.S.C. § 1958(a). While it may be that a reasonable
juror could believe that the evidence presented at trial
supported an inference sufficiently strong to establish
that Mr. Smith was probably guilty of this offense, I
think that a reasonable juror would have had to entertain
a reasonable doubt that he was guilty.
I therefore respectfully dissent.
A true copy.
Attest:
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CLERK, U. S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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