U.S. v. Richardson

• Decision Date: 26 February 1999
• Docket Number: No. 97-3030,97-3030
• Citation: 167 F.3d 621
• Parties: UNITED STATES of America, Appellee, v. Billy RICHARDSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 621

167 F.3d 621

334 U.S.App.D.C. 384

UNITED STATES of America, Appellee, v. Billy RICHARDSON, Appellant.

No. 97-3030.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 5, 1998.

Decided Feb. 26, 1999.

Appeal from the United States District Court for the District of Columbia (No. 95cr00088-03).

Neal Goldfarb, appointed by the court, argued the cause and filed the briefs for appellant.

David B. Goodhand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Kenneth L. Wainstein, Assistant U.S. Attorneys. Elizabeth Trosman and Mary-Patrice Brown, Assistant U.S. Attorneys, entered appearances.

Before: WALD, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Following a joint trial with two other defendants, a jury convicted appellant of armed robbery, assault with intent to murder, assault with a deadly weapon, and related crimes in connection with a restaurant robbery and a nightclub shooting. His codefendants were convicted of thirteen additional crimes, including murder. The jury hung on RICO and RICO conspiracy counts. Seeking reversal of his convictions, appellant argues that the RICO charges, together with his joint trial with codefendants charged with more serious crimes, resulted in the introduction of highly prejudicial evidence that would have been inadmissible in the absence of the RICO charges. Because we find that a reasonable jury, viewing the evidence in the light most favorable to the government, could have found that the government's evidence proved the elements of a RICO violation beyond a reasonable doubt, we reject his claims. We reverse one of appellant's two felon-in-possession convictions because, as the government concedes, there was no evidence that appellant possessed more than one gun or that he acquired or stored them separately. Finding appellant's remaining claims without merit, we affirm in all other respects.

I

A grand jury indicted appellant Billy Richardson and his codefendants Harold Cunningham and Percy Barron on RICO, RICO conspiracy, and other charges flowing from their alleged participation in an armed robbery ring. According to the indictment, their criminal activity consisted of fifteen separate incidents lasting from July 8 to October 17, 1993, the date on which the police apprehended the last of the defendants after a shoot-out. Their crime spree began with armed robbery of money and guns and escalated to shootings of robbery victims, bystanders, and rivals in crime. They killed five people. The indictment charged them with conducting their crimes as an informal criminal enterprise with Cunningham as its leader and primary decisionmaker.

The indictment identified Richardson as having participated in four of the fifteen predicate acts of the alleged enterprise. It formally charged him in connection with two. The first charged incident occurred outside the Ibex nightclub in the District of Columbia. Having left the club following an altercation with a member of a rival street crew, Richardson and his codefendants returned with guns and opened fire on people standing in a crowd outside the club. They wounded five. The second incident occurred a month later at Horace & Dickie's carry-out restaurant, also in the District of Columbia. Entering the restaurant, Richardson and his codefendants brandished handguns, emptied the cash register, and robbed the three employees. As the robbers fled, an employee followed to get the license plate number on their getaway car. One of the robbers--the employee could not identify which--fired at the employee but missed. The two uncharged incidents involved an armed robbery outside an Annapolis apartment complex and a shoot-out with a Maryland police officer.

The indictment charged Richardson with RICO, 18 U.S.C. § 1962(c) (1994), RICO conspiracy, id. § 1962(d), armed robbery, D.C. CODE §§ 22-2901, 22-3202 (1981), second degree burglary while armed, id. §§ 22-1801(b), 22-3202, assault with intent to murder while armed, id. § 22-503, assault with a dangerous weapon, id. § 22-502, possession of a firearm during a crime of violence, id. § 22-3204(b), felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and use of a firearm during a crime of violence under the Hobbs Act, id. § 924(c). His codefendants were charged with additional counts of armed robbery and assault and with five counts of murder.

Before trial, Richardson moved to sever his trial from that of his codefendants. He claimed that joint trial would be prejudicial because his codefendants were charged with more serious crimes. Denying this motion, the district court said, "[I]t certainly doesn't appear ... that the amount of evidence or the type of evidence is so disparate in terms of Mr. Richardson as opposed to the other two defendants that there would be compelling prejudice to his case." Tr. 11/20/95 a.m. at 105. At the close of the government's case and again at the close of all the evidence, Richardson moved to dismiss the two RICO charges for insufficient evidence. The district court denied the motions, finding that the government's evidence adequately supported the two RICO charges.

A jury convicted Richardson and his codefendants on virtually all predicate counts. It hung on the RICO and RICO conspiracy charges, as to which the district court declared a mistrial. Richardson then moved for a new trial on the other substantive counts. Claiming that the RICO charges were unsupported by the evidence, Richardson argued that the charges enabled the government to introduce unfairly prejudicial evidence, including the two uncharged Maryland crimes and his general association with the codefendants beyond the two charged incidents. Moreover, he argued, it was the RICO charges that made joint trial possible, and the joint trial caused "spillover" prejudice stemming from the codefendants' more serious crimes. The district court denied the motion.

We severed Richardson's appeal from his codefendants'. In United States v. Cunningham, we affirmed the codefendants' convictions except for the multiple felon-in-possession counts, which we found merged into one. 145 F.3d 1385 (D.C.Cir.1998). In this appeal, Richardson challenges the sufficiency of the evidence for the two RICO charges and argues that the district court erred in denying his motions for severance and to declare a mistrial on the substantive counts. He also claims ineffective assistance of counsel, arguing that his defense counsel failed to seek dismissal under the Speedy Trial Act; unconstitutional variance between the indictment and the evidence presented to support his convictions for assault with intent to murder while armed; merger of his convictions for armed robbery and assault with a dangerous weapon; and merger of his two felon-in-possession convictions. We consider each argument in turn.

II

Richardson's primary argument centers on the district court's denial of his pretrial motion to sever and his post-trial motion for a new trial. In multi-defendant cases, Federal Rule of Criminal Procedure 8 authorizes joinder of defendants and charges if the charges arise from "transactions connected together or constituting part of a common scheme or plan," FED. R. CRIM. P. 8(a), and if the defendants are alleged to have participated in "the same series of acts or transactions constituting an offense or offenses," FED. R. CRIM. P. 8(b). Joint trials are favored in RICO cases. Cf. United States v. Ford, 870 F.2d 729, 731 (D.C.Cir.1989) ("The joinder presumption is especially strong where ... the respective charges require presentation of much the same evidence, testimony of the same witnesses, and involve two defendants who are charged, inter alia, with participating in the same illegal acts.") (internal quotation omitted); United States v. Girard, 601 F.2d 69, 72 (2d Cir.1979) ("Where ... the crime charged involves a common scheme or plan, a joint trial of the participants is proper, absent a clear showing of prejudice."). However, when improper joinder of charges allows the government to introduce prejudicial evidence that would have been inadmissible had the charges been tried separately, or when the prosecution joins defendants with significant disparities in the seriousness of their alleged crimes, we have recognized that there is a high risk of prejudice that might require reversal. See United States v. Dockery, 955 F.2d 50, 53 (D.C.Cir.1992); United States v. Sampol, 636 F.2d 621, 645-48 (D.C.Cir.1980); see also United States v. Guiliano, 644 F.2d 85, 89 (2d Cir.1981) ("One of the hazards of a RICO count is that when the Government is unable to sustain a conviction under this statute, it will have to face the claim that the prejudicial effect of tarring a defendant with the label of 'racketeer' tainted the conviction on an otherwise valid count.").

In this case, the RICO and RICO conspiracy counts functioned as the "connective tissue," as the district court put it, that allowed joinder of all fifteen incidents and all three defendants in a single trial. United States v. Cunningham, No. 95-88, at 23 (D.D.C. Jan. 18, 1996) ("District Court Order"). Reiterating the arguments that he made in district court, Richardson claims that the government failed to present sufficient evidence to support either RICO or RICO conspiracy and that his joint trial was unfairly prejudicial. Starting with his sufficiency of the evidence argument, we ask whether a reasonable trier of fact, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in the government's favor, could find the essential elements of the crime proved beyond a reasonable doubt. See United States v. Dingle, 114 F.3d 307, 310 (D.C.Cir.1997).

Richardson's sufficiency of the evidence argument focuses on two of the four elements of a RICO violati...