United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3346

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Charles Edwin Davidson, * * Defendant - Appellant. * * *

___________ Appeals from the Unite d States District Court for the

No. 96-3396 E astern District o f Arkansas.

___________ * * United States of America, * * Plaintiff - Appellee, * * v. * * Earnes Lee Smith, * * Defendant - Appellant. *-2- ___________ No. 97-1190

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Dwayne Harold Smith, * * Defendant - Appellant. *

___________ Submitted: April 16, 1997 Filed: August 8, 1997

___________ Before LOKEN, MAGILL, and MORRIS SHEPPARD ARN OLD, Circuit Judges.

___________ LOKEN, Circuit Judge.
These are consolidated appeals from the two trial s ne eded to resolve a ten-count indictment. After th e firs t trial, a jury convicted Charles Davidson o f racketeering, attempted interstate murder-for-hire , transferring a firearm for murder, distributin g methamphetamine, mail fraud, and arson affectin g inter state commerce . However, it could not reach a verdict onCount II charging Davidson, Earnes Smith, and Dwayne Smith with a second interstate murder-for-hire

. After a retrial of Count II, the second jury convicte d all three defendants. Davidson appeals his racketeering and murder -for-hire convictions at the first trial. All-3-

thre e appeal their convictions at the second trial , rais ing various evidentiary issues. Finally, Dwayn e Smith raises ineffective assistance of counsel issues

. We affirm all three convictions.The HONORABLE GEORGE HOWARD, JR., United States District Judge 1 for the Eastern District of Arkansas. Davidson does not challenge on appeal his conviction and concurrent 2 sentences for distribution of methamphetamine (240 months), transfer of a firearm for murder (120 months), two counts of arson (120 months), and mail fraud (60 months).
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I. Sufficiency of the Evidence Issues.

Dav idson challenges the sufficiency of the evidenc e at the first trial to convict him of racketeering, fo r which the district court sentenced him to 360 months in 1 prison, an d of attempted interstate murder-for-hire, for which he received a concurrent 120-month sentence

. 2 Davidson a nd the Smiths challenge the sufficiency of the eviden ce at the second trial to convict them of aidin g and a betting the interstate murder-for-hire of Darry l Cooperwood, for which each received a sentenc e of life in prison without possibility of parole. We wil l separately address these sufficiency-of-the-evidence iss ues, viewing the facts in the light most favorable to the jur y verdict s. See United States v. Kragness , 830 F.2d 842 , 847 (1987). We reject as without merit Davidson’ s ad ditional contention that we should grant him a ne w tria l because no government witness was credible. Se e Uni ted States v. Reeves , 83 F.3d 203, 206 (8th Cir

. 1996).

A. The RICO Conviction. Witnesses at the first tria l po rtrayed Davidson as the leader of a local crimina l organ ization. His auto lot and body shop were the bas e for theft and disassembly of stolen cars and trucks. His associates burglarized houses, defrauded insurers, sol d-5-

drug s, and committed arson and murder to punis h Davidson’s enemies and protect his criminal enterprise

. Numerous w itnesses accused Davidson of a wide variety of crim es , including the attempted murder of his half

sister, th e arson of her attorney’s home, and an attempt to hire th e local sheriff to murder a former accomplice. The jury convicted Davidson of violating the federa l anti-racke teering statute, commonly known as RICO, which makes it a crime “for any person employed-6-

by or associated with any enterprise . . . t o conduct or parti cipate . . . in the conduct of such enterprise’ s affairs th rough a pattern of racketeering activity . . . .” 18 U.S.C. § 1962(c). On appeal, Davidsonargues that the government failed to present sufficient evidence o f a RICO “enterprise.”

An “enterprise” is defined in RICO to include “an y individual . . . or other legal entity, and any . .

. grou p of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). The enterprise a t the heart of a RICO violation may be a legitimat e business, for example, one used to launder the proceed s of criminal activity, or may itself be an entirel y crim inal “association in fact.” When the governmen t alle ges that a criminal organization is the RIC O enterprise , it must define and prove the existence of an enterprise that is “separate and apart from the patter n of [criminal] activity in which it engages.” Unite d States v. Turkette , 452 U.S. 576, 583 (1981). I n appl ying Turkette , we look at whether the allege d enterprise has common or shared purposes, som e continuity of structure and personnel, and a structure d istinct from that inherent in the alleged pattern of racketeerin g activ ity. See, e.g. , Kragness , 830 F.2d at 855. Ou r focus is to ensure that RICO’s severe penalties ar e limi ted to “enterprises consisting of more than simpl e conspiracies to perpetrate the predicate acts o f racketeering.” United States v. Bledsoe , 674 F.2d 647 , 664 (8th Cir.), cert. denied , 459 U.S. 1040 (1982).
David son argues that the government proved onl y “spor adic criminal predicate acts,” not the requisit e-7-

common purpose, and that there was no proof of a n or ganization having the requisite continuity and a structu re distinct from that inherent in the pattern o f racketeering offenses. We disagree. Davidson ran a smal l but prolific crime ring. Initially, stepson Ti m Sca rbrough and Roger Rollet were the foot soldiers , stealing cars and trucks and burglarizing homes. Davidso n “chopped” the stolen cars in his shop and fenced the othe r stolen goods. But Davidson was more than an outlet fo r stolengoods. He instructed Scarbrough and Rollet to bur n cars and houses, both for insurance proceeds and fo r int imidation. He financed their drug activities an d provided-8-

oth er support for his criminal associates. Whe n Sca rbrough went to prison, Tony Webster filled in , stealing cars, supplying Davidson with drugs fo r distribution, and serving as his enforc er, while Davidson pai d $5,000 to murder Cooperwood for setting Scarbroug h up with an undercover police officer.

The length of these associations, the number an d
var ietyof crimes the group jointly committed, an d Davidson’s financial support of his underlings demonstrat e an o ngoing association with a common purpose to reap the economi c rewards flowing from the crimes, rather than a seri es of ad hoc relationships. See Turkette , 452 U.S. at 583. Davidson’s continued leadership provide d contin uityof personnel at the top of the crimina l orga nization. See United States v. Lemm , 680 F.2d 1193, 1200 (8th Cir. 1982), cert. denied , 459 U.S. 1110 (1983). Its members had “the family and social relationships” tha t helped define a criminal RICO enterpris e in United States
v. Leisure , 844 F.2d 1347, 1363 (8th Cir. 1988), cert
. denied , 488 U.S. 932 (1988). N umerous acts of retaliatio n and intimidation committed at Davidson’s direction, an d his attempt to involve the local sherif f in a murder-forhir e, evidence a criminal enterprise broader than an d distinct from its constituent criminal activities. As in Krag ness , 830 F.2d at 857, “the activities of the grou p ex hibit a pattern of roles and a continuing system o f aut hority; the essential identity of the enterpris e endured.” The evidence was sufficient to convict Davidso n of violating 18 U.S.C. § 1962(c).

B. The Cooperwood Murder

. In 1991, stepso n Scarb rough went to prison for selling marijuana to a n-9-

underco ver officer. At the second trial, Sandra Querr y test ified that in March 1992 Davidson told her he woul d pay $5,000 for Cooperwood’s murder beca use Cooperwood had intr oduced Scarbrough to the undercover officer . Querry rel ayed this offer to her boyfriend, Earnes Smith

. O n Ma rch 21, Querry accompanied Earnes to the Little Roc k Airp ort where they met his son Dwayne arriving from Ne w Orle ans. Cooperwood was murdered later that week. T h e mor ning after the murder, Querry overheard Earnes an d Dwayne talking about making sure “the b ody was dead,” and Earnes to ld Querry to go “pick up his money.” She the n drove to Davidson’s-10-

hou se. Davidson gave her $4400, admitting he was $60 0 short and telling Query he would “get w ith [Earnes] later and se ttle up the rest.” The jury convicted all thre e def endants of aiding and abetting an interstate murder

for -hire in violation of 18 U.S.C. § 1958(a), whic h provides in relevant part:

Whoever travels in or causes another . . . t o travel in interstate or foreign commerce . .

. with intent that a murder be committed i n violation of the laws of any State . . . a s con sideration for the receipt of, or a s cons ideration for a promise or agreement to pa y

. . . if death results, shall be punished b y death or life imprisonment . . .

. Section 1958 does not prohibit murder. It outlaw s cau sing travel or the use of interstate commerc e fa cilities with the intent that murder-for-hire b e com mitted. See United States v. Delpit , 94 F.3d 1134 , 1149 (8th Cir. 1996); United States v. McGuire , 45 F.3 d 1177, 1186 (8th Cir.), cert. denied , 115 S. Ct. 255 8 (1995). The government’s theory, which the jury obviousl y acc epted , was that Davidson’s promise of money fo r Coop erwood’s murder resulted in Earnes Smith causin g Dwayne Smith to travel in interstate commerce, each of th e three intending that murder-for-hire be committed

. Davidson and Earnes argue there was ins ufficient evidence they caused Dwayne to travel in interstate commerce with intent to murder. Dwayne argues there was insufficien t evidenc e he traveled in commerce with intent to murder

. We disagree.

D efendants note that there was no evidence Davidso n met wit h Earnes to discuss a murder-for-hire, no direc t-11-

evid ence 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 routin e tri p to visit his father. However, t he government ma y establish its case through circumstantial evidence, an d the j ury may draw all reasonable inferences from tha t evidence. See United States v. Davis , 103 F.3d 660, 667 (8thCir. 1996), cert. denied , 65 USLW 3798 (1997). Ther e was direct evidence that Davidson made an offer to pay fo r Coo perwood’s murder to someone he could expect t o commun icate that offer to Earnes Smith. There wa s circumstantial evidence-12-

that the Smiths talked by phone prior t o Dwayne’s arrival in Arkansas. Telephone records show a March 18, 1992 , call from Earnes’s home in Arkansas to Dwayne’s home i n New Orleans, where he lived with his mother, and call s from Dwayne’s home to Earnes’s home on March 19 and again
onMarch 21, the day Earnes picked Dwayne up at the Littl e Rock airport.

Th ere was also circumstantial evidence that Dwayn e came to Arkansas to aid in a murder-for-hire, meaning tha t th e Smiths had discussed the scheme by phone. Dwayn e stayed at Sandra Query’s apartment in Arkansas where h e could keep a low profile. Though unemp loyed at the time, he purchased a plane ticket to Arkansas, paid $500 i n tra ffic warrants while in Arkansas, purchased a Lincol n Conti nental from Earnes for $500, and returned to Ne w Orle ans with $1000 cash. After Querry collected the hit
mone yfrom Davidson, Dwayne told her, “[i]f I give pop s a thousand dollars for the car, then I would have a thousand dollars left for myself.” Que rry responded that “it was $5000.” Angrily, Dwayne replied, “pops got m e again.”

The government’s evidence must have impressed th e defense, for Dwayne Smith took the stand at the end of th e trial. He flatly denied talking to his father by phon e befo re arriving in Arkansas. He explained where he go t money to spend in Arkansas, but the exp lanation impeached his earlier testimony that he never sold drugs illegally before 1992. And he denied admitting the murder o f Coop erwood to a boyhood friend who had testified for the government. Obviously, the jury disbelieved thi s testimony. When there is other corrobo rative evidence of-13-

guil t, the jury can properly draw an inference of guil t from its disbelief of the defendant’s denials. See Unite d Sta tes v. Brown , 53 F.3d 312, 314-15 (11th Cir. 1995) , ce rt. denied , 116 S. Ct. 909 (1996); United States v

. Zafiro , 945 F.2d 881, 888 (7th Cir. 199 1), aff’d on other grounds , 506There was little if any evidence that Davidson knew or had reason to know 3 that Earnes Smith would summon Dwayne from New Orleans to assist in the murder-for-hire. Davidson does not argue that this precludes his conviction for aiding and abetting a violation of § 1958, and we do not consider the issue.
-14- U.S. 534 (1993). We conclude the evide nce was sufficient to con vict each defendant of aiding and abetting a violation of § 1958(a). 3

C. Davidson’s Second Murder-for-Hire Conviction

. Dotti e Holmes is Davidson’s half sister. Though onc e close, their relationship deteriorated after Davidso n married Mona Davidson. In the spring of 1994, Mona phone d her brother, David Travis, saying that Davidson would hav e a job for him if Travis came to Arkansa s from his home in the Sta te of Washington . When Travis arrived, Davidso n offered him $15,000 to kill Dottie Holmes. The jur y convicted Davidson of violating § 1958 by aiding an d abetti ng in the use of an interstate facility (th e telephone) with intent that a murder-for-hire b e committed

. Davidson argues the evidence was insufficien t because Travis did not know of the murd er scheme until he
arr ived in Arkansas and therefore lacked the requisit e intent to murder. This argument is foreclosed by the plain language of § 1958. The statute is violated by anyone who “uses o r causes another (including the intended victim) to use

.

. . any facility in interstate or foreign commerce, with intent that a murder be committed.” Da vidson caused Mona to soli cit a murder-for-hire by telephone. The statut e does not say that both parties to the r esulting telephone
co nversation must be aware of the murder scheme. An y-15-

party who uses the telephone or causes its use with th e requisite murderous intent violates § 1958(a). See Unite d States v. Razo-Leora , 961 F.2d 1140, 1148 (5th Cir. 1992)

. Mona Davidson’s testimony as a government witness provide s a sufficient basis for the jury’s conclusion that Davidso n int ended to contract for murder when he caused Mona t o make the telephone call to Travis.-16- II. Evidentiary Issues.
A. Evidence of Davidson’s Additional Crimes. At the sec ond trial, Dottie Holmes, Michael Holmes, and Melvi n Redmaneach testified that Davidson admitted orchestratin g the Cooperwood murder. They also testified to othe r Davi dson misdeeds. Dottie Holmes testified that she was afra id of Davidson because of his criminal activities -- “[s]tolen vehicles, burning people’s houses, burnin g people’s vehicles” -- and described howDavidson harassed her after she refused to deed certain property to him

. Micha el Holmes described Davidson’s attempts to plan t drug s in his truck and to burn their home after Dottie’s relationship with Davidson soured. Melvin Redma n describ ed hiring Davidson to steal a truck for Redman’ s sis ter-in-law. On appeal, Davidson argues that thes e other crimes had nothing to do with the Cooperwood murder and therefore the district court abused its discretion in adm itting this evidence under Federal Rule of Evidenc e 404(b).

Th e district court took up this issue prior to th e start of the second trial. After the prosecutio n explained that the evidence would be relevant because fea r of Davidson explained why these witnesses had not com e forw ard sooner, and because Davidson’s relationship with Dottie Holmes was relevant background t o her testimony as to Davidson’s admissions, Davidson argued that th e evi dence should be excluded as more prejudicial tha n pro bative -- a Rule 403 objection. The district cour t rule d that the evidence was relevant and offered to give a cautionary instruction to avoid unfai r prejudice. This rul ing was well within the court’s broad evidentiar y-17-

discretion. See, e.g. , United States v .Wagoner , 713 F.2 d 1371, 1375 (8th Cir. 1983). Moreover , any error wa s harmle ss. More than a dozen people testified tha t Davidson admitted soliciting Cooperwood’s murder , incl uding Davidson’s wife, his half-sister, his stepson, his brother-in-law, old friends, and cr iminal associates. Davidsonwas convicted by this overwhelming testimony, no t by descriptions of his other crimes.-18-

We also reject Earnes Smith’s contention tha t evi dence of Davidson’s past crimes should have bee n excluded because it was prejudicial to Smith as Davidson’ s co- defendant. The district court did not abuse it s discretion by admitting this evidence b ut giving the jury
a c autionary instruction that it was admissible onl y agai nst Davidson. See United States v. Mason , 982 F.2 d 325, 327 (8th Cir. 1993).

B. An Ad mission by Earnes Smith. At the secon d trial, Sandra Querry testified that some time after th e Cooperwood murder, Earnes Smith told her that Davidson ha d app roached him about “doing another job” and Earne s refused, telling Davidson “if he didn’t have the backbone
or the guts to do it himself, [I] wasn’t going to do i t for h im.” The district court admitted this testimon y because it tended to prove a prior relationship betwee n Smi th and Davidson and “the inferences are far fro m spe culation and conjecture.” On appeal, Smith an d Dav idson argue that this testimony should have bee n excluded because it did not clearly relate to Cooperwood’ s mur der and therefore invited the jury to speculat e prejudicially about what the “other job ” might have been. We will reverse only for clear abuse of the distric t cour t’s broad discretion to admit or exclude evidence at tria l

. See United States v. Emmanuel , 112 F.3d 977, 979 (8th C ir. 1997). We agree with the court that Smith’ s admi ssion about “another job” requiring “guts” evidenced
a r elevant prior relationship with Davidson. Moreover , to t he extent the link to Cooperwood’s murder was weak , any resulting prejudice was weak. In other words, th e dist rict court did not abuse its discretion in admitting this te stimony because its probative value was at leas t-19-

as strong as any unfair prejudice. See United States v. Mihm , 13 F.3d 1200, 1204 (8th Cir. 1994)

.
C. The Motion for Mistrial. Prior to the secon d tria l, the prosecution agreed to avoid references to the deat h of Marlene Holt, Davidson’s former girlfriend

. Sandra Querry nonetheless gave the foll owing testimony on direct examination:

Atto rney: What was the purpose for all thi s moving around that you did?-20-

Querry: Because I was in fear for my life afte r my statement. Attorney : Who were you in fear for you lif e from? Querry: Butch Davidson. Attorney: Why is that? Querry: Because I kn ow his reputation, and I felt lik e if I made a state ment against him, that Marlene was alread y dead, and I didn’t want to be next.

Defen se counsel moved for a mistrial. The distric t court instead offered a cautionary instruction, whic h defendants declined. On appeal, Davidson and Earnes Smit h argue that the prejudice from this test imony could not be
cur ed by a cautionary instruction and therefore th e district court erred in denying a mistrial. The referenc e to Marlene Holt was brief and vague, “s imply one of those
un expected developments that occurs in the course of a trial.” United States v. Flores , 73 F.3d 826, 832 (8t h Cir.), cert. denied , 116 S. Ct. 2568 (1996). The distric t cour t has broad discretion to grant or deny a motion for mist rial because it is in a far better position to weigh the effect of improper testimony, and because less drasti c mea sures such as a cautionary instruction are generall y sufficient to alleviate prejudice flowing from imprope r test imony. We conclude there was no abuse of discretion in denying defendants a mistrial.

D. The Autopsy Photographs. The district cour t admi tted into evidence four photographs taken during the-21-

auto psy of Darryl Cooperwood. Davidson and Earnes Smith
ar gue that the court abused its discretion because th e photos were cumulative to crime scene photos and therefor e unduly prejudicial. A trial court has discretion to admi t a rele vant photograph unless it is “so gruesome o r inflammatory that its prejudicial impact substantiall y out weigh[s] its probative value.” United States v

. Petary , 857 F.2d 458, 463 (8th Cir. 1988). Thoug h grap hic, the autopsy photographs were less gruesome than the crime scene photos, and they helped explain th e testimony-22-

of Dr. William Sturner, the government witness wh o perf ormed the autopsy. Their admission was not an abuse of discretion.

III. Ineffective Assistance of Counsel.
At sentencing, Dwayne Smith accused his trial cou nsel of i neffective assistance. The district court continued the sen tencing and appointed new counsel, who moved fo r a new trial on this ground. After a hearing, the distric t cou rt denied the motion. On appeal, Smith argues tha t tri al counsel was constitutionally deficient in tw o respects. First, Smith argues that counsel failed to cal l Net tie Jones, Smith’s girlfriend, to testify that Smit h usually

lived with Ms. Jones, not his mother, during Marc h 1992 when the phone calls were made between Earnes Smith’ s residen ce in Arkansas and the mother’s residence in Ne w Orleans. At the new trial hearing, Ms. Jones could no t be l ocated and therefore did not testify. Smith’s trial
couns el testified that Nettie Jones was not among th e potential witnesses Smith asked him to interview. Smith’ s mo ther testified that she refused to attend the secon d trial and that Smith did stay at her home from time t o time during the period in question. (Smith testified at trial that he was living with his mother.) On thi s re cord, counsel was not ineffective in failing to cal l Nett ie Jones. See Bowmann v. Gammon , 85 F.3d 1339, 1345 (8 th Cir. 1996), cert. denied , 117 S. Ct. 1273 (1997 ) (de cision not to call a witness is “virtuall y unchallengeable” trial strategy).-23-

Second, Smith argues that counsel was ineffective for fai ling to move for a severance because Davidson was a career criminal responsible for multiple murders , attempted murders, and arson whose presence as a co

defenda nt prejudiced Smith’s defense. At the new tria l hear ing, Smith did not ask counsel to explain why he did not seek a severance, so the record will not support the
conc lusion “that the behavior of counsel fell measurably bel ow that which might be expected from an ordinar y fallible lawyer.” Nolan v. Armontrout , 973 F.2d 615, 618 (8th Cir. 1992). Moreover, Smith-24-

was not prejudiced because a motion for severance woul d have been denied. Earnes Smith moved for severance befor e the first trial, and his motion was denied; there was les s rea son for severance at the second trial becaus e addi tional criminal charges against Davidson were n o lon ger at issue. Severance will not be granted simpl y bec ause the evidence against one defendant is stronger , or because one defendant believes that his chances fo r acquittal would be better in a separate trial. See Zafir o v. United States , 506 U.S. 534, 540 (19 93); United States
v. Humphreys , 982 F.2d 254, 259 (8th Cir. 1992), cert
. deni ed , 510 U.S. 814 (1993). Dwayne Smith’s motion fo r a new trial was properly denied.
The judgments of the district court are affirmed.

MORRI S SHEPPARD ARNOLD, Circuit Judge, concurring an d dissenting.

I concur in all of the court's opinion except th e portion of it that upholds Dwayne Smith's conviction unde r 18 U.S.C. § 1958(a). While it may be that a reasonabl e juro r could believe that the evidence presented at trial supported an inference sufficiently strong to establis h th at Mr. Smith was probably guilty of this offense, I think that a reasonable juror would hav e had to entertain a reasonable doubt that he was guilty. I therefore respectfully dissent.
A true copy.

Attest:-25- CLERK, U. S. COURT OF APPEALS, EIGHT H CIRCUIT.