United States v. Campbell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5097

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HARRINGTON CAMPBELL,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00232-CCB-1)

Submitted: September 29, 2009 Decided: October 16, 2009

Before MOTZ, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Bonsib, Megan E. Green, MARCUS BONSIB, LLP, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Harrington Campbell appeals his convictions for

conspiracy to distribute and possess with intent to distribute

controlled substances, in violation of 21 U.S.C. § 846 (2006),

and structuring financial transactions, in violation of 31

U.S.C. § 5324 (2006). He was sentenced to 130 months’

imprisonment.

On appeal, Campbell asserts that joinder of his

conspiracy and structuring charges was improper; even if joinder

was proper, the district court abused its discretion in denying

Campbell’s motion to sever; the conspiracy charge was barred by

the statute of limitations; the district court abused its

discretion in allowing expert testimony regarding Campbell’s

alleged structuring; and the Government committed prosecutorial

misconduct by making improper remarks to the jury during direct

examination and its closing statement.

I. Joinder

Campbell first asserts that the district court erred

in improperly joining the conspiracy and structuring counts.

Additionally, if joinder was proper, Campbell contends that the

district court abused its discretion in denying his motion to

sever.

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 Under Fed. R. Crim. P. 8, an indictment “may charge a

defendant in separate counts with two or more offenses if

[1] the offenses charged are of the same or similar character,

[2] are based on the same act or transaction, or [3] are

connected with or constitute parts of a common scheme or plan.”

United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005)

(quotation marks, alterations, and citation omitted). We review

de novo the district court’s refusal to grant a misjoinder

motion to determine whether the initial joinder of the offenses

was proper under Rule 8(a). United States v. Mackins, 315 F.3d

399, 412 (4th Cir. 2003). If joinder was proper, our review of

the denial of a motion to sever is for abuse of discretion under

Fed. R. Crim. P. 14. Id.

Joinder of offenses only violates the Constitution if

“it results in prejudice so great as to deny a defendant his

Fifth Amendment right to a fair trial.” United States v. Lane,

474 U.S. 438, 446 n.8 (1986). Due to the inherent efficiency of

trying a defendant on related counts in the same trial, Rule

8(a) allows for very broad joinder. Cardwell, 433 F.3d at 385.

Joinder is proper so long as the joined offense have a logical

relationship to each other. See id. This logical relationship

exists “when consideration of discrete counts against the

defendant paints an incomplete picture of the defendant’s

criminal enterprise.” Id. These flexible requirements are “not

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infinitely elastic, however, because unrelated charges create

the possibility that a defendant will be convicted based on

considerations other than the facts of the charged offense.”

Id. (internal quotation marks and citations omitted).

After reviewing the record, we find that joinder of

the conspiracy and structuring charges in this instance was

proper, as consideration of the conspiracy and structuring

charges independently would yield an incomplete understanding of

the extent of Campbell’s criminal enterprise. During the trial,

the Government presented extensive evidence of Campbell’s drug

conspiracy. Campbell purchased cocaine from Jerome Bruce on

nine or ten occasions beginning in 1997. In total, Campbell

purchased fifty to sixty kilograms of cocaine from Bruce. In

2000, Campbell’s coconspirator arranged for an unemployed truck

driver to meet Campbell in Houston in order to transport cocaine

from Texas to Maryland. Between 2001 and 2002, Campbell sold

between two and six kilograms of cocaine to Reginald Jones, who

had originally approached Campbell at his car dealership in

search of a car.

During the same time period that Campbell was engaged

in this drug conspiracy, he repeatedly structured transactions

with his bank in order to avoid the currency transaction report

(CTR) filing requirements of the Bank Secrecy Act. Though a

mere temporal relationship between joined charges is

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insufficient to demonstrate a logical relation, Cardwell, 433

F.3d at 386, it is clear from the record that the structured

transactions at issue here served to hide evidence of Campbell’s

drug profits. That Campbell sold drugs out of his dealership is

further evidence of this relationship, as is the magnitude of

the illegally structured transactions. When viewed together,

the conspiracy and structuring charges paint a full picture of

the extent of Campbell’s crimes: in an attempt to hide the gains

from his illegal drug trafficking, Campbell engaged in wide-

spread structuring of financial transactions. Accordingly,

joinder of these charges was proper.

Campbell additionally argues that even if the charges

were properly joined, Fed. R. Crim. P. 14 nevertheless required

severance. Under Rule 14(a), “if the joinder of offenses for

trial appears to prejudice a defendant, the court may order

separate trials of counts.” Cardwell, 433 F.3d at 388

(quotation marks and ellipses omitted). Therefore, even if

joinder is technically proper, certain circumstances may

nevertheless require severance. See id. However, such

instances are rare, as it is insufficient for a defendant to

demonstrate that severance offers him a better chance of

acquittal. See id. Instead, “a district court should grant a

severance under Rule 14 only if there is a serious risk that a

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joint trial would prevent the jury from making a reliable

judgment about guilt or innocence.” Id.

Here, Campbell fails to demonstrate any prejudice

resulting from joinder of his conspiracy and structuring counts.

The district court provided instructions explicitly informing

the jury of the proper consideration of the joined charges.

Nevertheless, Campbell asserts that he “was presented with a

very real dilemma,” as he desired to testify in his own defense

as to the structuring charges but not to the drug conspiracy.

However, the district court correctly noted that “Campbell’s

possible desire to testify . . . as to the structuring

allegations [was] not a basis for severance as he would in any

event be subject to cross-examination by the government on the

source of the cash and the reasons for the alleged structuring.”

Thus, even if the charges were severed, Campbell would still be

cross-examined during the structuring trial regarding his

alleged drug conspiracy. Accordingly, as Campbell fails to

demonstrate any prejudice resulting from the joinder, the

district court did not abuse its discretion in denying

Campbell’s motion to sever.

II. Statute of limitations

We review de novo whether an indictment charges a

crime within the applicable statute of limitations. See United

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States v. Uribe-Rios, 558 F.3d 347, 351 (4th Cir. 2009). Under

18 U.S.C. § 3282 (2006), non-capital offenses are subject to a

five-year statute of limitations. Generally, a “statute of

limitations . . . runs from the last overt act during the

existence of the conspiracy.” Fiswick v. United States, 329

U.S. 211, 216 (1946); see also United States v. Jake, 281 F.3d

123, 129 (3d Cir. 2002) (quoting Fiswick); United States v.

Gregory, 151 F.3d 1030, 1998 WL 390176, at **6 (4th Cir. 1998)

(argued but not published). However, it is well-established

that there need be no overt acts in order for a drug conspiracy

to exist. United States v. Shabani, 513 U.S. 10, 15 (1994). In

such instances, the statute of limitations is satisfied if the

government “alleges and proves that the conspiracy continued

into the limitations period.” United States v. Seher, 562 F.3d

1344, 1364 (11th Cir. 2009). A conspiracy continues “as long as

its purposes have been neither abandoned nor accomplished, and

no affirmative showing has been made that it has been

terminated.” Id.

After reviewing the record, we find it clear that

Campbell’s drug conspiracy charges were not barred by the

statute of limitations. Reginald Jones testified that he made

his final purchase from Campbell a few days before Jones was

arrested on August 29, 2002. As this was within five years of

the filing of the indictment, it is clear that Campbell’s drug

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conspiracy charges were not barred by the statute of

limitations.

III. Expert testimony

Campbell next asserts that the district court erred in

allowing the Government’s expert witnesses to testify as to the

ultimate issue when an FBI agent described instances in which

Campbell had structured financial transactions. Generally, we

review a district court’s decision to admit expert testimony for

abuse of discretion. United States v. Mohr, 318 F.3d 613, 622

(4th Cir. 2003). However, because Campbell did not object to

the expert’s testimony, our review is for plain error. See

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To

establish plain error, Campbell must “show that an error

occurred, that the error was plain, and that the error affected

his substantial rights.” Id. Even if such a showing is made,

the decision to correct the error is in the discretion of this

court, based on a determination that the error “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)

(internal quotation marks, alterations and citation omitted).

Generally, expert testimony of “scientific, technical,

or other specialized knowledge” is admissible if it “will assist

the trier of fact to understand the evidence or to determine a

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fact in issue.” Fed. R. E. 702. Conversely, such testimony is

inadmissible if it does not aid the trier of fact. United

States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002). Though

Rule 704(a) provides for the admissibility of expert testimony

that reaches the ultimate issue to be decided by the jury,

“testimony that merely states a legal conclusion is less likely

to assist the jury in its determination.” Id. Such testimony

is admissible even if it reaches the ultimate issue to be

decided by the trier of fact. Fed. R. E. 704(a).

Campbell’s argument hinges on his assertion that the

Government’s expert witness testified largely to legal

conclusions that were unhelpful to the jury. However, the

record reflects that the testimony presented by the FBI agent

was likely very helpful to the jury. The agent explained the

Bank Secrecy Act, and its requirement that a financial

institution must submit a currency transaction report whenever

an individual made a transaction with more than $10,000 in cash.

Additionally, the agent testified that the Bank Secrecy Act made

it a crime to attempt to structure a transaction in order to

evade the filing of a CTR. The agent gave hypothetical examples

of illegal structuring, in order for the jury to better

understand types of actions that would be consistent with

structuring. Finally, the agent testified at great length as to

several different ways in which deposits made by Campbell or

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other individuals on behalf of Campbell’s dealership were

consistent with illegal structuring. As the Government notes,

without the agent’s testimony, “the jury would be left to pore

over the deposit tickets or spreadsheet entries without guidance

as to what to look for.” Avoidance of such a confusion is the

purpose of expert testimony: to “assist the trier of fact to

understand the evidence or to determine a fact in issue.” Fed.

R. E. 702. Therefore, we find that the district court did not

err in allowing expert testimony in this regard.

IV. Prosecutorial misconduct

Finally, Campbell asserts that the Government

committed prosecutorial misconduct in statements made to the

jury. To prevail on a claim of prosecutorial misconduct,

Campbell must show: (1) the government’s remarks and conduct

were improper; and (2) the remarks or conduct prejudicially

affected his substantial rights so as to deprive him of a fair

trial. United States v. Golding, 168 F.3d 700, 702 (4th Cir.

1999). Because Campbell did not object below to the

Government’s comments, our review is for plain error. See

White, 405 F.3d at 215.

Concerning Campbell’s first allegation of misconduct,

we have held that “it is highly improper for the government to

refer to a defense witness as a liar.” United States v. Moore,

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11 F.3d 475, 481 (4th Cir. 1993). Accordingly, we find that the

Government acted improperly by referring to Ronald Brown, a

defense witness, as a liar.

However, in order for Campbell to succeed on his

prosecutorial misconduct claim, he must demonstrate that the

remarks prejudiced Campbell to the extent that he was deprived

of a fair trial. In determining whether the Government’s

improper remarks require reversal, we consider

(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; and (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters.

United States v. Harris, 498 F.3d 278, 293 (4th Cir. 2007).

Additionally, prejudice to the defendant may be ameliorated

through the district court’s use of curative instructions.

United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995).

Our review of the record leads us to find that the

remarks indicated by Campbell, while improper, did not prejudice

Campbell to the extent that he was deprived of a fair trial.

Campbell identified approximately six instances during closing

in which the Government stated that Ronald Brown, a defense

witness, lied. While six occurrences arguably cannot be

considered “isolated,” the fact that Campbell has identified

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only these six examples of the Government describing defense

witnesses as liars throughout an expansive oral argument

indicates to us that the misconduct was not extensive.

Additionally, while the Government’s comments may have

had some tendency to mislead the jury, the fact that prior to

closing statements, the judge instructed the jury that “the

statements, objections and arguments of counsel are not evidence

and should not be considered as evidence” significantly lessens

the chance that the jury was misled by the Government’s improper

statements. Though this instruction likely would not have the

same mitigating effect of a curative instruction given

immediately following the alleged improper conduct, see Morsley,

64 F.3d at 913, we presume that a jury has acted in a manner

consistent with its instructions, see United States v. Alerre,

430 F.3d 681, 692 (4th Cir. 2005). As the instructions told the

jury not to consider counsel’s statements, such as those made at

closing, as evidence, we presume the jury did just that.

Moreover, absent the Government’s improper remarks,

there was an abundance of competent proof establishing

Campbell’s guilt on both charges. Several witnesses, including

Jerome Bruce, Reginald Jones, and Norman Edmond, testified at

great length about their participation in a drug conspiracy with

Campbell. Two of these witnesses detailed either selling

cocaine to or purchasing cocaine from Campbell on repeated

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occasions. The third witness, Edmond, provided detailed

information regarding his participation as a carrier of drugs

for Campbell, attempting to aid Campbell in transporting the

drugs from Texas to Maryland. Additionally, the FBI agent’s

expert testimony for the Government provided significant

evidence establishing Campbell’s guilt for structuring more than

$1.7 million in deposits to both Charm City Motors’s and

Campbell’s personal bank accounts. Accordingly, we hold that

the Government’s references to defense witnesses as liars, while

improper, did not prejudice Campbell to the extent that he was

deprived of a fair trial.

Similarly, we reject Campbell’s claim that improper

vouching by the Government deprived him of a fair trial. The

Government may not vouch or bolster a government witness

testimony during its closing argument. See United States v.

Sullivan, 455 F.3d 248, 259 (4th Cir. 2006). “Vouching occurs

when the prosecutor indicates a personal belief in the

credibility or honesty of a witness; bolstering is an

implication by the government that the testimony of a witness is

corroborated by evidence known to the government but not known

to the jury.” Id. Campbell first contends that the Government

improperly vouched for Norman Edmond by stating that Edmond had

no obligation to testify and therefore had no motivation to lie.

However, this is not an example of vouching, as the prosecutor

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“made no statement about h[is] personal belief in the truth of

the [testimony],” see Sullivan, 455 F.3d at 259, but instead

merely argued that, given the fact that Edmond gained nothing

from testifying, he had no motivation to lie.

Additionally, Campbell argues that the Government

improperly vouched for Jerome Bruce. We conclude, however, that

the statements referenced by Campbell did not constitute

improper vouching, as the Government made no comments indicating

a personal belief in the matter. Instead, the Government merely

referenced parts of the testimony corroborating Bruce’s in-depth

knowledge of Campbell. Similarly, the Government’s statements

that Bruce could not get a reduction in sentence for his

testimony were not indicative of the Government’s belief in the

veracity of Bruce’s statement, but instead merely reinforced the

fact that Bruce had no motivation to lie, as he was not

receiving any benefit from his testimony.

Campbell also asserts that the Government improperly

vouched for Bruce during direct examination by eliciting

information from Bruce to the effect that Bruce had entered into

a plea agreement in which he agreed that he would testify

truthfully. However, there is no error in permitting the

Government to elicit, during direct examination, details of a

plea agreement containing a witness’s promises to be truthful.

United States v. Henderson, 717 F.2d 135, 138 (4th Cir. 1983).

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 Next, Campbell asserts that the Government improperly

vouched for Reginald Jones in stating during closing that “his

deal was what his deal was. His deal was to testify truthfully

and he did.” However, when taken in context, this statement was

a direct rebuttal to prior comments the defense attorney made

regarding a “deal” Jones made with the Government in exchange

for his sentence. The Government was simply stating that the

fact that Jones may have received a reduced sentence had no

bearing on his credibility, as any deal Jones received required

his truthful testimony. Therefore, this statement was nothing

more than an appropriate response to defense counsel’s attacks

against Jones’s truthfulness. Such “invited responses” that do

nothing more than “right the scale” do not warrant reversal of a

conviction. United States v. Young, 470 U.S. 1, 12-13 (1985).

Campbell also assigns error to the Government’s

statement, with regard to the Government’s witnesses, that “It’s

not that their sentence is going to get cut. If they get on

that witness stand and lie, and they falsely accuse somebody,

they’re looking at perjury charges, ladies and gentlemen.”

Again, this statement was merely an invited response to defense

counsel’s assertions that the Government witnesses were

testifying in exchange for a reduced sentence. Young, 470 U.S.

at 12-13. Though Campbell asserts that this statement

improperly relied on evidence outside of the record, this

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assertion is belied by the record, as the Government’s comments

merely reiterated the fact that prior to taking the stand, each

witness swore an oath to tell the truth, an oath made on the

record and before the jury.

Campbell next takes exception to the Government’s

statement regarding Jerome Bruce’s prior obstruction of justice.

However, we conclude the challenged statement was nothing more

than a fair characterization of Bruce’s plea agreement, which

reflects that Bruce was to receive both a two-level enhancement

for obstruction of justice as well as a three-level reduction

for acceptance of responsibility. Moreover, the Government’s

statement that one who obstructed justice ordinarily would not

get a departure for acceptance of responsibility is an accurate

restatement of the plea agreement, which states that a

“reduction [for acceptance of responsibility] normally is not

available to persons who obstruct justice.” Accordingly,

Campbell’s argument is without merit.

Finally, Campbell asserts that the Government

committed prejudicial error in referring to the Defendants as

criminals and stating that “all that is necessary for the

triumph of evil over good is for good men and women to do

nothing.” While Campbell argues that this advocacy was the

equivalent of instructing the jury that if they did not vote to

convict, evil would triumph, he fails to persuasively articulate

16
the manner in which these comments were prejudicial to his

defense. Due to the isolated nature of these remarks, as well

as the overwhelming evidence of Campbell’s guilt, we cannot

conclude that Campbell was deprived of a fair trial. See United

States v. Curry, 993 F.2d 43, 46 (4th Cir. 1993) (finding

defendant failed to establish prejudice where remarks were

isolated and evidence of guilt was overwhelming).

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

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