U.S. v. Davidson, s. 96-3346

• Decision Date: 08 August 1997
• Docket Number: 96-3396,Nos. 96-3346,97-1190,s. 96-3346
• Citation: 122 F.3d 531
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Edwin DAVIDSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Earnes Lee SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Harold SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 531

122 F.3d 531

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edwin DAVIDSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Earnes Lee SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Harold SMITH, Defendant-Appellant.

Nos. 96-3346, 96-3396, 97-1190.

United States Court of Appeals Eighth Circuit.

Submitted April 16, 1997.

Decided Aug. 8, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied in

No. 97-1190 Sept. 29, 1997.

Jerome Kearney, Little Rock, AR, argued, for appellant Charles Davidson.

Randel Miller, Jonesboro, AR, argued, for appellant Ernes Lee Smith.

Dale Adams, Little Rock, AR, on the brief, for appellant Dwayne Smith.

Patrick C. Harris, Little Rock, AR, argued, for appellee.

Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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 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.

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 court ¹ 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 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 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, 101 S.Ct. 2524, 2529, 69 L.Ed.2d 246 (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, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982).

Davidson argues that the government proved only "sporadic criminal predicate acts," not the requisite 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 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, 101 S.Ct. at 2528-29. 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, 103 S.Ct. 739, 74 L.Ed.2d 960 (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, 109 S.Ct. 324, 102 L.Ed.2d 342 (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 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 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, 515 U.S. 1132, 115 S.Ct. 2558, 132 L.Ed.2d 811 (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 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...