United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3346

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Charles Edwin Davidson, *

*

Defendant - Appellant. *

*

*

___________ Appeals from the United

States

 District Court for the

No. 96-3396 Eastern District of

Arkansas.

___________ *

*

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Earnes Lee Smith, *

*

Defendant - Appellant. *
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___________

No. 97-1190

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Dwayne Harold Smith, *

*

Defendant - Appellant. *

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Submitted: April 16, 1997

Filed: August 8, 1997

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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
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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.
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.

Davidson challenges the sufficiency of the evidence

at the first trial to convict him of racketeering, for

which the district court sentenced him to 360 months in 1

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
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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 halfsister, 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
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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 (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 (1982).

Davidson argues that the government proved only

“sporadic criminal predicate acts,” not the requisite
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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
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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. 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 (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 (1988). Numerous acts of retaliation

and intimidation committed at Davidson’s direction, and

his attempt to involve the local sheriff in a murder-forhire, 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
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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
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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 murderfor-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, 115 S. Ct. 2558

(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
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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 circumstantial evidence, and

the jury may draw all reasonable inferences from that

evidence. See United States v. Davis, 103 F.3d 660, 667

(8th Cir. 1996), cert. denied, 65 USLW 3798 (1997). There

was direct evidence that Davidson made an offer to pay for

Cooperwood’s murder to someone he could expect to

communicate that offer to Earnes Smith. There was

circumstantial evidence
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that the Smiths talked by phone prior to Dwayne’s arrival

in Arkansas. Telephone records show a March 18, 1992,

call from Earnes’s home in Arkansas to Dwayne’s home in

New Orleans, where he lived with his mother, and calls

from Dwayne’s home to Earnes’s home on March 19 and again

on March 21, the day Earnes picked Dwayne up at the Little

Rock airport. 

There was also circumstantial evidence that Dwayne

came to Arkansas to aid in a murder-for-hire, meaning that

the Smiths had discussed the scheme by phone. Dwayne

stayed at Sandra Query’s apartment in Arkansas where he

could keep a low profile. Though unemployed at the time,

he purchased a plane ticket to Arkansas, paid $500 in

traffic warrants while in Arkansas, purchased a Lincoln

Continental from Earnes for $500, and returned to New

Orleans with $1000 cash. After Querry collected the hit

money from Davidson, Dwayne told her, “[i]f I give pops

a thousand dollars for the car, then I would have a

thousand dollars left for myself.” Querry responded that

“it was $5000.” Angrily, Dwayne replied, “pops got me

again.”

The government’s evidence must have impressed the

defense, for Dwayne Smith took the stand at the end of the

trial. He flatly denied talking to his father by phone

before arriving in Arkansas. He explained where he got

money to spend in Arkansas, but the explanation impeached

his earlier testimony that he never sold drugs illegally

before 1992. And he denied admitting the murder of

Cooperwood to a boyhood friend who had testified for the

government. Obviously, the jury disbelieved this

testimony. When there is other corroborative evidence of
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guilt, the jury can properly draw an inference of guilt

from its disbelief of the defendant’s denials. See United

States v. Brown, 53 F.3d 312, 314-15 (11th Cir. 1995),

cert. denied, 116 S. Ct. 909 (1996); United States v.

Zafiro, 945 F.2d 881, 888 (7th Cir. 1991), aff’d on other

grounds, 506
3There was little if any evidence that Davidson knew or had reason to know

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.

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U.S. 534 (1993). We conclude the evidence was sufficient

to convict each defendant of aiding and abetting a

violation of § 1958(a).3

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

Dottie Holmes is Davidson’s half sister. Though once

close, their relationship deteriorated after Davidson

married Mona Davidson. In the spring of 1994, Mona phoned

her brother, David Travis, saying that Davidson would have

a job for him if Travis came to Arkansas from his home in

the State of Washington. When Travis arrived, Davidson

offered him $15,000 to kill Dottie Holmes. The jury

convicted Davidson of violating § 1958 by aiding and

abetting in the use of an interstate facility (the

telephone) with intent that a murder-for-hire be

committed. Davidson argues the evidence was insufficient

because Travis did not know of the murder scheme until he

arrived in Arkansas and therefore lacked the requisite

intent to murder.

This argument is foreclosed by the plain language of

§ 1958. The statute is violated by anyone who “uses or

causes another (including the intended victim) to use .

. . any facility in interstate or foreign commerce, with

intent that a murder be committed.” Davidson caused Mona

to solicit a murder-for-hire by telephone. The statute

does not say that both parties to the resulting telephone

conversation must be aware of the murder scheme. Any
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party who uses the telephone or causes its use with the

requisite murderous intent violates § 1958(a). See United

States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir. 1992).

Mona Davidson’s testimony as a government witness provides

a sufficient basis for the jury’s conclusion that Davidson

intended to contract for murder when he caused Mona to

make the telephone call to Travis. 
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II. Evidentiary Issues.

A. Evidence of Davidson’s Additional Crimes. At the

second trial, Dottie Holmes, Michael Holmes, and Melvin

Redman each testified that Davidson admitted orchestrating

the Cooperwood murder. They also testified to other

Davidson misdeeds. Dottie Holmes testified that she was

afraid of Davidson because of his criminal activities --

“[s]tolen vehicles, burning people’s houses, burning

people’s vehicles” -- and described how Davidson harassed

her after she refused to deed certain property to him.

Michael Holmes described Davidson’s attempts to plant

drugs in his truck and to burn their home after Dottie’s

relationship with Davidson soured. Melvin Redman

described hiring Davidson to steal a truck for Redman’s

sister-in-law. On appeal, Davidson argues that these

other crimes had nothing to do with the Cooperwood murder

and therefore the district court abused its discretion in

admitting this evidence under Federal Rule of Evidence

404(b). 

The district court took up this issue prior to the

start of the second trial. After the prosecution

explained that the evidence would be relevant because fear

of Davidson explained why these witnesses had not come

forward sooner, and because Davidson’s relationship with

Dottie Holmes was relevant background to her testimony as

to Davidson’s admissions, Davidson argued that the

evidence should be excluded as more prejudicial than

probative -- a Rule 403 objection. The district court

ruled that the evidence was relevant and offered to give

a cautionary instruction to avoid unfair prejudice. This

ruling was well within the court’s broad evidentiary
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discretion. See, e.g., United States v .Wagoner, 713 F.2d

1371, 1375 (8th Cir. 1983). Moreover, any error was

harmless. More than a dozen people testified that

Davidson admitted soliciting Cooperwood’s murder,

including Davidson’s wife, his half-sister, his stepson,

his brother-in-law, old friends, and criminal associates.

Davidson was convicted by this overwhelming testimony, not

by descriptions of his other crimes. 
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We also reject Earnes Smith’s contention that

evidence of Davidson’s past crimes should have been

excluded because it was prejudicial to Smith as Davidson’s

co-defendant. The district court did not abuse its

discretion by admitting this evidence but giving the jury

a cautionary instruction that it was admissible only

against Davidson. See United States v. Mason, 982 F.2d

325, 327 (8th Cir. 1993).

B. An Admission by Earnes Smith. At the second

trial, Sandra Querry testified that some time after the

Cooperwood murder, Earnes Smith told her that Davidson had

approached him about “doing another job” and Earnes

refused, telling Davidson “if he didn’t have the backbone

or the guts to do it himself, [I] wasn’t going to do it

for him.” The district court admitted this testimony

because it tended to prove a prior relationship between

Smith and Davidson and “the inferences are far from

speculation and conjecture.” On appeal, Smith and

Davidson argue that this testimony should have been

excluded because it did not clearly relate to Cooperwood’s

murder and therefore invited the jury to speculate

prejudicially about what the “other job” might have been.

We will reverse only for clear abuse of the district

court’s broad discretion to admit or exclude evidence at

trial. See United States v. Emmanuel, 112 F.3d 977, 979

(8th Cir. 1997). We agree with the court that Smith’s

admission about “another job” requiring “guts” evidenced

a relevant prior relationship with Davidson. Moreover,

to the extent the link to Cooperwood’s murder was weak,

any resulting prejudice was weak. In other words, the

district court did not abuse its discretion in admitting

this testimony because its probative value was at least
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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 second

trial, the prosecution agreed to avoid references to the

death of Marlene Holt, Davidson’s former girlfriend.

Sandra Querry nonetheless gave the following testimony on

direct examination:

Attorney: What was the purpose for all this

moving around that you did?
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Querry: Because I was in fear for my life after

my statement.

Attorney: Who were you in fear for you life

from?

Querry: Butch Davidson.

Attorney: Why is that?

Querry: Because I know his reputation, and I

felt like if I made a 

statement against him, that Marlene was already

dead, and I didn’t want to be

next. 

Defense counsel moved for a mistrial. The district

court instead offered a cautionary instruction, which

defendants declined. On appeal, Davidson and Earnes Smith

argue that the prejudice from this testimony could not be

cured by a cautionary instruction and therefore the

district court erred in denying a mistrial. The reference

to Marlene Holt was brief and vague, “simply one of those

unexpected developments that occurs in the course of a

trial.” United States v. Flores, 73 F.3d 826, 832 (8th

Cir.), cert. denied, 116 S. Ct. 2568 (1996). The district

court has broad discretion to grant or deny a motion for

mistrial because it is in a far better position to weigh

the effect of improper testimony, and because less drastic

measures such as a cautionary instruction are generally

sufficient to alleviate prejudice flowing from improper

testimony. We conclude there was no abuse of discretion

in denying defendants a mistrial.

D. The Autopsy Photographs. The district court

admitted into evidence four photographs taken during the
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autopsy of Darryl Cooperwood. Davidson and Earnes Smith

argue that the court abused its discretion because the

photos were cumulative to crime scene photos and therefore

unduly prejudicial. A trial court has discretion to admit

a relevant photograph unless it is “so gruesome or

inflammatory that its prejudicial impact substantially

outweigh[s] its probative value.” United States v.

Petary, 857 F.2d 458, 463 (8th Cir. 1988). Though

graphic, the autopsy photographs were less gruesome than

the crime scene photos, and they helped explain the

testimony
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of Dr. William Sturner, the government witness who

performed the autopsy. Their admission was not an abuse

of discretion. 

III. Ineffective Assistance of Counsel.

At sentencing, Dwayne Smith accused his trial counsel

of ineffective assistance. The district court continued

the sentencing and appointed new counsel, who moved for

a new trial on this ground. After a hearing, the district

court denied the motion. On appeal, Smith argues that

trial counsel was constitutionally deficient in two

respects. 

First, Smith argues that counsel failed to call

Nettie Jones, Smith’s girlfriend, to testify that Smith

usually lived with Ms. Jones, not his mother, during March

1992 when the phone calls were made between Earnes Smith’s

residence in Arkansas and the mother’s residence in New

Orleans. At the new trial hearing, Ms. Jones could not

be located and therefore did not testify. Smith’s trial

counsel testified that Nettie Jones was not among the

potential witnesses Smith asked him to interview. Smith’s

mother testified that she refused to attend the second

trial and that Smith did stay at her home from time to

time during the period in question. (Smith testified at

trial that he was living with his mother.) On this

record, counsel was not ineffective in failing to call

Nettie Jones. See Bowmann v. Gammon, 85 F.3d 1339, 1345

(8th Cir. 1996), cert. denied, 117 S. Ct. 1273 (1997)

(decision not to call a witness is “virtually

unchallengeable” trial strategy). 
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Second, Smith argues that counsel was ineffective for

failing to move for a severance because Davidson was a

career criminal responsible for multiple murders,

attempted murders, and arson whose presence as a codefendant prejudiced Smith’s defense. At the new trial

hearing, Smith did not ask counsel to explain why he did

not seek a severance, so the record will not support the

conclusion “that the behavior of counsel fell measurably

below that which might be expected from an ordinary

fallible lawyer.” Nolan v. Armontrout, 973 F.2d 615, 618

(8th Cir. 1992). Moreover, Smith
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was not prejudiced because a motion for severance would

have been denied. Earnes Smith moved for severance before

the first trial, and his motion was denied; there was less

reason for severance at the second trial because

additional criminal charges against Davidson were no

longer at issue. Severance will not be granted simply

because the evidence against one defendant is stronger,

or because one defendant believes that his chances for

acquittal would be better in a separate trial. See Zafiro

v. United States, 506 U.S. 534, 540 (1993); United States

v. Humphreys, 982 F.2d 254, 259 (8th Cir. 1992), cert.

denied, 510 U.S. 814 (1993). Dwayne Smith’s motion for

a new trial was properly denied.

The judgments of the district court are affirmed.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and

dissenting.

I concur in all of the court's opinion except the

portion of it that upholds Dwayne Smith's conviction under

18 U.S.C. § 1958(a). While it may be that a reasonable

juror could believe that the evidence presented at trial

supported an inference sufficiently strong to establish

that Mr. Smith was probably guilty of this offense, I

think that a reasonable juror would have had to entertain

a reasonable doubt that he was guilty.

I therefore respectfully dissent.

A true copy.

Attest: 
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CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.