United States v. Smith, 020212 FED10, 10-3231

Docket Nº:10-3231
Opinion Judge:TERRENCE L. O'BRIEN, United States Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONEARL B. SMITH, Defendant-Appellant,
Judge Panel:Before HARTZ, O'BRIEN, and MATHESON, Circuit Judge.
Case Date:February 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JONEARL B. SMITH, Defendant-Appellant,

No. 10-3231

United States Court of Appeals, Tenth Circuit

February 2, 2012

D. Kan., D.C. No. 6:07-CR-10142-JTM-4.

Before HARTZ, O'BRIEN, and MATHESON, Circuit Judge.

ORDER AND JUDGMENT [*]

TERRENCE L. O'BRIEN, United States Circuit Judge.

Jonearl Smith was convicted by a jury of conspiring to engage in a racketeer influenced and corrupt organization (RICO) enterprise in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841 and 846. He seeks reversal of both convictions based on insufficiency of the evidence, erroneous jury instructions, and juror misconduct. We affirm.

I. FACTUAL BACKGROUND

We provide only a brief background of the facts here; other pertinent facts will be set forth in the discussion of the issues.

Smith is a member of the Crips street gang in Wichita, Kansas. The Crips gang consists of several sets including the "Neighborhood Crips, " the "Insane Crips, " and the "Tre Five Seven Crips." The Neighborhood Crips have further subsets-the "Rolling 60's", the "Deuce Trey Crips" and the "Grove Block Crips." The Grove Block Crips are further divided into the "19s" and "17s, " which refer to streets in Wichita. Smith is a member of the Neighborhood Crips, Grove Block, 19s.

There is no single leader of all the Crips in Wichita. However, each set of Crips has its own leaders. A leader is called an "OG, " meaning "Original Gangster." (R. Vol. 2, Part 4 at 1043.) An OG is either a founder of the gang or someone who has earned the respect of fellow gang members. To join the Crips, an individual is either "jumped in" (physically beaten by other Crips members) or "blessed in" (no beating) if he is a relative or close friend of another gang member. (R. Vol. 2, Part 3 at 712.)

Crips members are required to "put in work" which means they are required to engage in various acts of retaliation (including fist fights and drive-by shootings) against rival gangs. (R. Vol. 2, Part 3 at 733.) They frequently carry guns and engage in other criminal behavior such as drug dealing and robberies. Smith has been found in possession of a gun on a number of occasions and robbed a retail store during which he shot an employee. He also was involved in drug dealing (which we will set forth in more detail in Section III(B)).

Crips have certain unwritten rules. Chief among them is not to snitch on other Crips members and to represent and defend the gang. Crips are also not to steal from other Crips or associate with rival gang members. The Crips hold "court in the streets." (R. Vol. 2, Part 4 at 1090.) If a member violates the rules, he is subject to a "violation." (R. Vol. 2, Part 3 at 739.) A "violation" usually involves being physically beaten by other Crips members but in some circumstances may involve being kicked out of the gang.

Crips hold meetings called "Cripnics" or "Cripcues." (R. Vol. 2, Part 5 at 1234, Part 9 at 2132.) Initially, they met at various residences; eventually they began meeting at local parks. At these meetings, Crips initiate new members into the gang, impose "violations" on certain members and discuss rival gangs.

Crips have unique hand signs and handshakes. They also frequently wear blue clothing to represent their membership.

II. PROCEDURAL BACKGROUND

Smith, along with nineteen co-defendants, was charged in a 34-count Fifth Superseding Indictment. Smith was named in four counts: (1) participating in a RICO enterprise in violation of 18 U.S.C. § 1962(c) (Count 1); (2) conspiracy to participate in a RICO enterprise in violation of 18 U.S.C. § 1962(d) (Count 2); (3) conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841 and 846 (Count 28); and (4) conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846 (Count 29).

Smith proceeded to trial with five co-defendants. After a lengthy trial, where the government called over 100 witnesses, the jury found him guilty on Counts 2 and 28 (RICO conspiracy and conspiracy to distribute crack cocaine), acquitted him on Count 29 (conspiracy to distribute marijuana), and deadlocked on Count 1 (RICO substantive violation). The district court denied Smith's post-trial motion for judgment of acquittal or in the alternative for a new trial. Smith was sentenced to 77 months imprisonment.

III. DISCUSSION

Smith raises six claims which we distill to five: Whether (1) the government was required to demonstrate the existence of an enterprise in order to convict Smith of conspiracy to participate in a RICO enterprise under 18 U.S.C. § 1962(d); (2) the government presented sufficient evidence to support Smith's conviction for conspiracy to distribute 50 grams or more of crack cocaine; (3) Smith's requested jury instructions should have been given; (4) an evidentiary hearing was required regarding alleged juror misconduct; and (5) Smith's conviction of conspiracy to participate in a RICO enterprise should have been vacated after his convictions for the predicate acts supporting that conviction were set aside in a separate case.

A. Existence of an Enterprise

The court instructed the jury (Instruction No. 32) that in order to find Smith guilty of conspiracy to participate in a RICO enterprise, the government must prove, inter alia, that "[a] conspiracy or agreement . . . existed between two or more persons to participate in the affairs of an enterprise that affected interstate commerce through a pattern of racketeering activity." (R. Vol. 1 at 206 (emphasis added).) The jury was also told that the term "enterprise" had the same meaning as that used in Count 1-the substantive RICO charge-which defined "enterprise" as, inter alia, a "group of people [who] have (1) a common purpose; and (2) an ongoing organization, either formal or informal; and (3) personnel who function as a continuing unit." (R. Vol. 1 at 172.) However, the jury was also instructed that "the conspiracy alleged in Count 2 is a different charge [than Count 1]" with "important distinctions." (R. Vol. 1 at 206.) Relevant here, the jury was told that unlike Count 1, "the government need not prove . . . the alleged enterprise was actually established" for purposes of Count 2. (R. Vol. 1 at 206-07.) Rather,

[t]he essential nature of Count 2 is the conspiratorial agreement; the ultimate success or failure of the conspiracy is irrelevant. An offense is established if the government proves that, if the conspiracy [was] completed as contemplated and the enterprise established, that: 1) the defendant would be employed by or associated with the enterprise; and 2) that the enterprise affected interstate or foreign commerce.

(R. Vol. 1 at 207.) Smith did not object to this instruction.

During deliberations, the jury sent the following question to the court:

Does the enterprise in count 1 have to be established before we can come to a verdict on count 2? For example [Instruction 32] says the government need not prove the alleged enterprise was actually established yet the 1st element [of Instruction 32] says "to participate in the affairs of an enterprise" & the term[] "enterprise" ha[s] the same meaning as th[at] in Count 1.

(Supp. R. Vol. 1, Part 2 at 300.)

The court discussed the appropriate response with the parties. It initially proposed responding as follows:

No, your decision on Count 1 does not control your decision on Count 2. It is possible to find the defendant not guilty on Count 1, but guilty on Count 2, or guilty on Count 1 but not guilty on Count 2. Of course you may also find the defendant not guilty or guilty on both of those counts as well.

Count 1 focusses on the actual existence of an enterprise as reflected in at least two prior criminal predicate acts, while Count 2 focusses on the intent of two or more persons to accomplish such an enterprise regardless of whether the predicate acts occurred. You must read this answer in conjunction with all of the instructions I have given you.

(R. Vol. 3 at 76-77.) Smith objected to the proposed response, stating the jury should be directed to refer to the original jury instructions because they "contain the answer" and the court's proposed response places "undue emphasis [on] instructions that are already in the Court's original instructions." (Id. at 80-81.) The court then asked Smith: "[The proposed answer] may be unacceptable but [is it] wrong? . . . Is there a misstatement of law in [the proposed answer]?" (Id. at 81.) Smith replied: "Not to my knowledge . . . ." (Id.)

In response to Smith's objection as well as to those of his co-defendants, the court modified its response, retaining the first paragraph but eliminating the second paragraph. It also referred the jury to Instructions 23-28 and 32-33 (the instructions regarding Counts 1 and 2) and instructed the jury to "read this answer in conjunction with all of the instructions I have given you." (R. Supp. Vol. 1, Part 2 at 301.) Smith unsuccessfully renewed his objection to the modified response. The jury did not reach a verdict on the substantive RICO charge but found Smith guilty of RICO conspiracy.

Smith filed a post-trial motion for judgment of acquittal or in the alternative for a new trial. For the first time, he argued he could not be convicted of conspiracy to participate in a RICO enterprise (Count 2) without a jury finding that an enterprise existed. Therefore, he contended Instruction 32 which informed the jury that the government need not prove the alleged enterprise was actually established was erroneous. Moreover, he claimed the jury's question regarding whether it needed to find the existence of an enterprise in order to...

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