United States v. Cornelius

• Decision Date: 18 September 2012
• Docket Number: 10–3142.,Nos. 10–3125,s. 10–3125
• Parties: UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant, v. Corey CORNELIUS, a/k/a C.C., Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

696 F.3d 1307

UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant,

v.Corey CORNELIUS, a/k/a C.C., Defendant–Appellant/Cross–Appellee.

Nos. 10–3125, 10–3142.

United States Court of Appeals,Tenth Circuit.

Sept. 18, 2012.

Carl F.A. Maughan of Maughan & Maughan LC, Wichita, KS, for Defendant–Appellant/Cross–Appellee.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee/Cross–Appellant.

Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant-appellant Corey Cornelius was charged with four counts of federal racketeering- and drug-related offenses in 2008 in the District of Kansas along with nineteen codefendants in a thirty-count indictment. A jury convicted Cornelius in 2009 of one count of conspiracy to commit a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), one count of conspiracy to distribute crack cocaine, and one count of conspiracy to distribute marijuana. The jury could not reach a verdict on the fourth count against Cornelius, charging racketeering under RICO. The district court sentenced Cornelius to 210 months' imprisonment in 2010. This appeal by Cornelius and cross-appeal by the Government followed.

On appeal, Cornelius argues that (1) the evidence at trial was insufficient to support a conviction on any of the counts under which he was convicted; (2) the district court erred by instructing the jury that it did not need to find that an “enterprise” actually existed in order to convict on the offense of conspiracy to commit a RICO violation; (3) the district court erred by giving the jury an Allen instruction ¹ after the jury advised the court that it was deadlocked on certain counts; (4) the district court erred by refusing to instruct the jury on the affirmative defense of duress; (5) Cornelius was denied his right to trial by an impartial jury, in light of an allegedly bias-indicating letter that a juror handed to the prosecution after trial; and (6) Cornelius's sentence was unconstitutional, contrary to the Fair Sentencing Act of 2010, and based upon an improperly considered prior conviction. Meanwhile, the Government cross-appeals with regard to Cornelius's sentence, arguing that the district court erred by failing to impose the statutorily applicable twenty-year mandatory minimum term of imprisonment required for his crack-cocaine conviction.

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reject Cornelius's arguments on appeal and AFFIRM his conviction. Additionally, we agree with the Government that the district court erred by failing to impose the statutory mandatory minimum sentence in this case, and therefore VACATE Cornelius's sentence and REMAND for sentencing consistent with this opinion.

I. BACKGROUND

1. Pre-trial background

The Crips are one of the more prominent street gangs in Wichita, Kansas. The Crips engage in drug distribution, violent crimes, and other illicit activity. Cornelius was a Crip member, and he had brothers and friends in the gang. The Wichita Crips are composed of several “sets,” or sub-gang units, each of which may have their own subsets. Testimony at Cornelius's trial indicated that Cornelius was considered an “OG,” or “original gangster,” within one of the sets. An OG is a kind of leader with decisionmaking power in the gang—“[s]omeone that is very respected, either the founder of the gang or someone that has earned respect within the gang and is high ranking.” R. Vol. 4 at 961–62. Additional details about the Crips and Cornelius's criminal activities are set forth below as necessary in the Discussion.

Cornelius was arrested in May 2007 in relation to a 2006 armed robbery of a credit union in Wichita. Cornelius was charged in the District of Kansas with bank robbery and the use of a firearm during commission of a federal crime of violence, but those charges were dismissed in November 2007. In the meantime, in September 2007, Cornelius was charged in a twenty-five-count Superceding Indictment along with multiple codefendants.² After a series of subsequent indictments, Cornelius was charged along with nineteen codefendants in the case's thirty-count Fifth Superceding Indictment, filed in September 2008.

Cornelius faced charges under four counts in the Fifth Superceding Indictment. Under Count 1, Cornelius was charged with racketeering, in violation of 18 U.S.C. § 1962(c), in relation to the following alleged acts: robbery of a man in 1997; possession with intent to distribute marijuana in 2005; robbery of a credit union in 2006; and conspiracy to distribute cocaine and marijuana in 2007. Under Count 2, Cornelius was charged with conspiracy to commit a RICO violation, in violation of 18 U.S.C. § 1962(d), in relation to the previously identified activity. In Count 28, Cornelius was charged with conspiracy to distribute fifty grams or more of a mixture containing a detectable amount of cocaine base, in violation of 21 U.S.C. § § 841(a)(1) and 846. Finally, in Count 29, Cornelius was charged with conspiracy to distribute a mixture containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

2. The trial

Cornelius was tried by a jury in the District of Kansas along with five codefendants who were also alleged Crips. The trial lasted roughly six weeks, from early March through mid-April 2009. On March 30, after all evidence had been presented and arguments had concluded, the jury began its deliberations. On April 9, the jury informed the judge that it was at an impasse, unable to reach a verdict on sixteen of thirty-four counts. In response, the court issued, over Cornelius's attorney's objection, an Allen instruction to the jury, instructing the members to reconsider their views and to deliberate further in attempt to reach an agreement if possible.

Also on April 9, the jury submitted a question to the court, asking: “Does the enterprise in Count 1 [i.e., racketeering under RICO] have to be established before we can come to a verdict on Count 2 [conspiracy to commit a RICO violation]?” R. Vol. 4 at 4438. The court responded in the negative, issuing the following responsive instruction to the jury:

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. [T]hese matters are addressed in Instructions 23 through 28 and 32 and 33. You must read this answer in conjunction with all of the instructions I have given you.

Id. at 4438–39, 4446. Cornelius's attorney had objected to that instruction by way of adopting the position of counsel for one of Cornelius's codefendants—counsel who had argued that the new instruction “lends undue emphasis to instructions that are already in the court's original instructions.” Id. at 4443. Counsel had urged the court simply to refer the jurors back to the original jury instructions, although he conceded that he did not believe that the new instruction misstated the law or otherwise misled the jury. Notably, the original instructions likewise indicated that the jury did not need to find the existence of an enterprise under Count 1 in order to convict on Count 2. See R. Vol. 2 at 358–59 (Instr. 32: “Unlike the charge in Count 1, the government need not prove [under Count 2] ... that the alleged enterprise was actually established....”).

On April 15, the jury returned a verdict on twenty-eight counts, unable to reach a verdict on the remaining six counts. With respect to the four charges against Cornelius, the jury failed to reach a verdict on Count 1 (racketeering under RICO), but it found Cornelius guilty under Count 2 (conspiracy to violate RICO), Count 28 (conspiracy to distribute crack cocaine), and Count 29 (conspiracy to distribute marijuana).

3. Post-trial events

After the trial had concluded, some of the jurors chose to meet with the attorneys in the jury room. There, the presiding juror handed an envelope with a typed letter to the prosecution. The letter thanked the prosecutors for their service; offered to discuss the trial, the jury's deliberations, and the applicable law with them, if that would be legal; and referenced the presiding juror's willingness to “help [the Government] rid this cancer in our society.” R. Vol. 2 at 403.

On May 6, 2009, Cornelius filed a “Motion for judgment of acquittal or, in the alternative, a new trial,” citing insufficient evidence to support a conviction, improper jury instructions, and jury partiality as justifications for relief. The district court denied that motion on July 15, 2009. Cornelius was sentenced on May 12, 2010, to 210 months' imprisonment for each of the three counts of conviction, to run concurrently.

Before trial, the Government had filed an information pursuant to 21 U.S.C. § 851, giving notice of a former felony drug conviction of Cornelius that would subject him to an enhanced sentence—namely, a twenty-year mandatory minimum prison term for Count 28, under 21 U.S.C. § 841(b)(1)(A). Cornelius objected to the consideration of that prior conviction, asserting that the conviction was the result of an unconstitutional search and therefore should be excluded from consideration as fruit of the poisonous tree under the exclusionary rule. The district court, over the Government's objection, did not sentence Cornelius to the twenty-year minimum. Rather, deeming itself to have some flexibility in the matter, and in light of its concern about crack/powder cocaine sentencing disparities, the court sentenced Cornelius to only 210 months—twenty-five months less than the low end of the advisory range yielded by the Federal Sentencing Guidelines.

On May 21, 2010, Cornelius appealed to this Court. As outlined above, he argues that...