567 F. App'x 422
6th Cir.2014Background
- Defendant Edward Campbell III was convicted by a jury of participating in a RICO conspiracy (18 U.S.C. § 1962(d)) tied to the Youngstown gang “LSP” and sentenced to 90 months’ imprisonment and three years’ supervised release.
- Indictment attributed three overt acts to Campbell: selling cocaine/marijuana, possession of 26 individually wrapped crack rocks found at his grandmother’s apartment, and a MySpace photo showing a gang hand sign.
- Trial evidence: MySpace photo; officers testified Campbell admitted LSP membership and selling/smoking marijuana; eyewitnesses (Wayne Kerns and Deborah Newell) placed Campbell in a March 14, 2009 drive-by shooting that injured Sherrick Jackson; forensic evidence linked a Mossberg shotgun to the shooting.
- Kerns testified Campbell admitted firing a Mossberg shotgun; police recovered Mossberg shotgun shells at the scene; other codefendants had related guilty counts for gang activity.
- At sentencing the government sought to attribute the drive-by shooting as underlying racketeering conduct under the Guidelines, urging an offense level tied to attempted murder (U.S.S.G. § 2A2.1); the district court applied offense level 27 and imposed 90 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for RICO conspiracy | Evidence (admissions, photo, accomplice testimony, narcotics possession, and participation in drive-by) proved agreement to commit at least two RICO predicate acts | Evidence only shows association with gang members; witness statements were uncorroborated or unreliable | Affirmed: viewing evidence in prosecution’s favor, a rational juror could find Campbell participated in the RICO conspiracy |
| Admissibility/weight of accomplice and eyewitness testimony | Testimony of Kerns, Newell, and officers corroborated Campbell’s participation in predicate acts | Witnesses were impeached, recanted, or received benefits; credibility insufficient | Affirmed: appellate court will not reassess credibility; testimony supported verdict |
| Attribution of drive-by shooting as “underlying racketeering activity” at sentencing | Shooting was relevant conduct under U.S.S.G. § 1B1.3(a)(1) and supports applying § 2A2.1 (attempted murder) for offense level calculation | Credible evidence lacking to attribute shooting to Campbell due to impeached witnesses | Affirmed: district court did not clearly err in finding relevant conduct and assigning offense level 27 |
| Standard of review for sufficiency and sentencing findings | N/A (Government defending conviction and sentence) | Campbell seeks reversal | Court applied Jackson standard for sufficiency and de novo review for Guidelines application with factual findings reviewed for clear error; no reversible error found |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Ellzey v. United States, 874 F.2d 324 (circumstantial evidence can sustain a conviction)
- Stone v. United States, 748 F.2d 361 (circumstantial evidence need not exclude every reasonable hypothesis of innocence)
- Gallo v. United States, 763 F.2d 1504 (uncorroborated testimony of a single accomplice can support a conspiracy conviction)
- Lawson v. United States, 535 F.3d 434 (RICO conspiracy requires agreement to commit at least two predicate acts)
- Saadey v. United States, 393 F.3d 669 (intent to further an endeavor completing RICO elements)
- Salinas v. United States, 522 U.S. 52 (definition of agreement for conspiracy purposes)
- Hughes v. United States, 895 F.2d 1135 (agreement may be inferred from conduct)
- Bailey v. United States, 444 U.S. 394 (appellate courts do not reassess witness credibility on sufficiency review)
- Tocco v. United States, 200 F.3d 401 (base offense level under § 2E1.1 and relation to underlying racketeering activity)
- Tocco v. United States, 306 F.3d 279 (relevant conduct under § 1B1.3 ties underlying racketeering activity to sentencing)
- Corrado v. United States, 227 F.3d 528 (preponderance standard for relevant conduct at sentencing)
- Hurst v. United States, 228 F.3d 751 (sentencing court’s credibility determinations reviewed for clear error)