United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 1998 Decided February 26, 1999
No. 97-3030
United States of America,
Appellee
v.
Billy Richardson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00088-03)
Neal Goldfarb, appointed by the court, argued the cause
and filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher and Kenneth L. Wain-
stein, Assistant U.S. Attorneys. Elizabeth Trosman and
Mary-Patrice Brown, Assistant U.S. Attorneys, entered ap-
pearances.
Before: Wald, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Following a joint trial with two other
defendants, a jury convicted appellant of armed robbery,
assault with intent to murder, assault with a deadly weapon,
and related crimes in connection with a restaurant robbery
and a shooting outside a nightclub. His codefendants were
convicted of thirteen additional crimes, including murder.
The jury hung on RICO and RICO conspiracy counts. Seek-
ing reversal of his convictions, appellant argues that the
RICO charges, together with his joint trial with codefendants
charged with more serious crimes, resulted in the introduc-
tion of highly prejudicial evidence that would have been
inadmissible in the absence of the RICO charges. Because
we find that a reasonable jury, viewing the evidence in the
light most favorable to the government, could have found that
the government's evidence proved the elements of a RICO
violation beyond a reasonable doubt, we reject his claims.
We reverse one of appellant's two felon-in-possession convic-
tions because, as the government concedes, it presented no
evidence that appellant possessed more than one gun or that
he acquired or stored them separately. Finding appellant's
remaining claims without merit, we affirm in all other re-
spects.
I
A grand jury indicted appellant Billy Richardson and his
codefendants Harold Cunningham and Percy Barron on
RICO, RICO conspiracy, and other charges flowing from
their alleged participation in an armed robbery ring. Accord-
ing to the indictment, their criminal activity consisted of
fifteen separate incidents lasting from July 8 to October 17,
1993, the date on which the police apprehended the last of the
defendants after a shoot-out. Their crime spree began with
armed robbery of money and guns and escalated to shootings
of robbery victims, bystanders, and rivals in crime. They
killed five people. The indictment charged them with con-
ducting their crimes as an informal criminal enterprise with
Cunningham as its leader and primary decisionmaker.
The indictment identified Richardson as having participated
in four of the fifteen predicate acts of the alleged enterprise.
It formally charged him in connection with two. The first
charged incident occurred outside the Ibex nightclub in the
District of Columbia. Having left the club following an
altercation with a member of a rival street crew, Richardson
and his codefendants returned with guns and opened fire on
people standing in a crowd outside the club. They wounded
five. The second incident occurred a month later at Horace
& Dickie's carry-out restaurant, also in the District of Colum-
bia. Entering the restaurant, Richardson and his codefend-
ants brandished handguns, emptied the cash register, and
robbed the three employees. As the robbers fled, an employ-
ee followed to get the license plate number on their getaway
car. One of the robbers--the employee could not identify
which--fired at the employee but missed. The two un-
charged incidents involved an armed robbery outside an
Annapolis apartment complex and a shoot-out with a Mary-
land police officer.
The indictment charged Richardson with RICO, 18 U.S.C.
s 1962(c) (1994), RICO conspiracy, id. s 1962(d), armed rob-
bery, D.C. Code ss 22-2901, 22-3202 (1981), second degree
burglary while armed, id. ss 22-1801(b), 22-3202, assault
with intent to murder while armed, id. s 22-503, assault with
a dangerous weapon, id. s 22-502, possession of a firearm
during a crime of violence, id. s 22-3204(b), felon in posses-
sion of a firearm, 18 U.S.C. s 922(g)(1), and use of a firearm
during a crime of violence under the Hobbs Act, id. s 924(c).
His codefendants were charged with additional counts of
armed robbery and assault and with five counts of murder.
Before trial, Richardson moved to sever his trial from that
of his codefendants. He claimed that joint trial would be
prejudicial because his codefendants were charged with more
serious crimes. Denying this motion, the district court said,
"[I]t certainly doesn't appear ... that the amount of evidence
or the type of evidence is so disparate in terms of Mr.
Richardson as opposed to the other two defendants that there
would be compelling prejudice to his case." Tr. 11/20/95 a.m.
at 105. At the close of the government's case and again at
the close of all the evidence, Richardson moved to dismiss the
two RICO charges for insufficient evidence. The district
court denied the motions, finding that the government's evi-
dence adequately supported the two RICO charges.
A jury convicted Richardson and his codefendants on virtu-
ally all predicate counts. It hung on the RICO and RICO
conspiracy charges, as to which the district court declared a
mistrial. Richardson then moved for a new trial on the other
substantive counts. Claiming that the RICO charges were
unsupported by the evidence, Richardson argued that the
charges enabled the government to introduce unfairly preju-
dicial evidence, including the two uncharged Maryland crimes
and his general association with the codefendants beyond the
two charged incidents. Moreover, he argued, it was the
RICO charges that made joint trial possible, and the joint
trial caused "spillover" prejudice stemming from the code-
fendants' more serious crimes. The district court denied the
motion.
We severed Richardson's appeal from his codefendants'.
In United States v. Cunningham, we affirmed the codefend-
ants' convictions except for the multiple felon-in-possession
counts, which we found merged into one. 145 F.3d 1385 (D.C.
Cir. 1998). In this appeal, Richardson challenges the suffi-
ciency of the evidence for the two RICO charges and argues
that the district court erred in denying his motions for
severance and to declare a mistrial on the substantive counts.
He also claims ineffective assistance of counsel, arguing that
his defense counsel failed to seek dismissal under the Speedy
Trial Act; unconstitutional variance between the indictment
and the evidence presented to support his convictions for
assault with intent to murder while armed; merger of his
convictions for armed robbery and assault with a dangerous
weapon; and merger of his two felon-in-possession convic-
tions. We consider each argument in turn.
II
Richardson's primary argument centers on the district
court's denial of his pretrial motion to sever and his post-trial
motion for a new trial. In multi-defendant cases, Federal
Rule of Criminal Procedure 8 authorizes joinder of defen-
dants and charges if the charges arise from "transactions
connected together or constituting part of a common scheme
or plan," Fed. R. Crim. P. 8(a), and if the defendants are
alleged to have participated in "the same series of acts or
transactions constituting an offense or offenses," Fed. R.
Crim. P. 8(b). Joint trials are favored in RICO cases. Cf.
United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989)
("The joinder presumption is especially strong where ... the
respective charges require presentation of much the same
evidence, testimony of the same witnesses, and involve two
defendants who are charged, inter alia, with participating in
the same illegal acts.") (internal quotation omitted); United
States v. Girard, 601 F.2d 69, 72 (2d Cir. 1979) ("Where ...
the crime charged involves a common scheme or plan, a joint
trial of the participants is proper, absent a clear showing of
prejudice."). However, when improper joinder of charges
allows the government to introduce prejudicial evidence that
would have been inadmissible had the charges been tried
separately, or when the prosecution joins defendants with
significant disparities in the seriousness of their alleged
crimes, we have recognized that there is a high risk of
prejudice that might require reversal. See United States v.
Dockery, 955 F.2d 50, 53 (D.C. Cir. 1992); United States v.
Sampol, 636 F.2d 621, 645-48 (D.C. Cir. 1980); see also
United States v. Guiliano, 644 F.2d 85, 89 (2d Cir. 1981)
("One of the hazards of a RICO count is that when the
Government is unable to sustain a conviction under this
statute, it will have to face the claim that the prejudicial effect
of tarring a defendant with the label of 'racketeer' tainted the
conviction on an otherwise valid count.").
In this case, the RICO and RICO conspiracy counts func-
tioned as the "connective tissue," as the district court put it,
that allowed joinder of all fifteen incidents and all three
defendants in a single trial. United States v. Cunningham,
No. 95-88, at 23 (D.D.C. Jan. 18, 1996) ("District Court
Order"). Reiterating the arguments that he made in district
court, Richardson claims that the government failed to pres-
ent sufficient evidence to support either RICO or RICO
conspiracy and that his joint trial was unfairly prejudicial.
Starting with his sufficiency of the evidence argument, we ask
whether a reasonable trier of fact, viewing the evidence in the
light most favorable to the government and drawing all
reasonable inferences in the government's favor, could find
the essential elements of the crime proved beyond a reason-
able doubt. See United States v. Dingle, 114 F.3d 307, 310
(D.C. Cir. 1997).
Richardson's sufficiency of the evidence argument focuses
on two of the four elements of a RICO violation: the "exis-
tence of an enterprise" affecting interstate commerce and his
participation in it through a "pattern of racketeering activity."
See United States v. Hoyle, 122 F.3d 48, 50 (D.C. Cir. 1997)
(the other two elements are that the defendant "associated
with" the enterprise and "participated in the conduct of the
enterprise's affairs"). As to the first element, a RICO enter-
prise may be "any union or group of individuals associated in
fact although not a legal entity," 18 U.S.C. s 1961(4), so long
as it involves "some structure, to distinguish an enterprise
from a mere conspiracy." United States v. Korando, 29 F.3d
1114, 1117 (7th Cir. 1994) (internal quotation omitted). Un-
der the test we set out in United States v. Perholtz, the
enterprise is established by (1) a common purpose among the
participants, (2) organization, and (3) continuity. 842 F.2d
343, 362 (D.C. Cir. 1988).
Richardson does not claim that the government failed to
prove a "common purpose" among the participants (the first
Perholtz factor), and for good reason: As the district court
observed, the government presented "undeniable" evidence
that their common purpose was "to obtain money or other
property by robbery." District Court Order at 5. Focusing
instead on the second and third Perholtz factors, Richardson
contends that the government presented only minimal evi-
dence of "organization" and "continuity" beyond that neces-
sary to commit the individual predicate crimes. We disagree.
To begin with, the evidence showed that Richardson and
his codefendants organized themselves hierarchically and
planned their activities. According to trial witnesses, Cun-
ningham served as the leader: He was usually first through
the door and first to display a firearm. He announced the
robbery, gave orders to the victims, and directed Richardson
and Barron during the course of the robberies. Additional
evidence of organization and continuity comes from the rob-
beries' consistent pattern; from testimony that Richardson
and his codefendants borrowed or rented cars to commit their
crimes and attempted to switch license plates to avoid detec-
tion; from ballistics analysis establishing that they used guns
stolen in earlier crimes to facilitate later robberies and shoot-
ings; from testimony that they committed acts of violence
and retaliation to protect their armed robbery enterprise;
and from evidence that the three had social ties and were
often seen together during the summer of 1993, thus further
supporting the existence of an association independent of
their individual crimes.
In his second challenge to the RICO charges, Richardson
argues that the government failed to present evidence suffi-
cient to prove that he engaged in a pattern of racketeering
activity. He relies on H.J. Inc. v. Northwestern Bell Tele-
phone Co., which held that "[p]redicate acts extending over a
few weeks or months and threatening no future criminal
conduct do not satisfy this [pattern] requirement: Congress
was concerned in RICO with long-term criminal conduct."
492 U.S. 229, 242 (1989). Richardson argues that because the
four predicate acts in which he participated spanned only
thirty-four days, and the entire crime spree only three and
one-half months, the evidence does not satisfy H.J.'s "long-
term criminal conduct" requirement. The government coun-
ters that had Richardson and his codefendants not been
arrested, their criminal enterprise would have continued in-
definitely, thus "threatening ... future criminal conduct."
Id.
We agree with the government. The "fortuitous interrup-
tion of [racketeering] activity such as by an arrest" does not
grant defendants a free pass to evade RICO charges. United
States v. Busacca, 936 F.2d 232, 238 (6th Cir. 1991). As the
district court observed, the sheer number of serious crimes,
"which victimized dozens of persons and led to five deaths
during the course of one summer, with no abatement of
activity in sight," made the "threat of future criminality ...
palpable." District Court Order at 17. We have no doubt
that a jury could reasonably infer from the frequency and
escalating seriousness of the defendants' crimes that their
"past conduct ... by its nature project[ed] into the future
with a threat of repetition," thus satisfying RICO's pattern
requirement. H.J. Inc., 492 U.S. at 241.
Because we have found sufficient evidence of an ongoing
RICO enterprise involving Richardson, Cunningham, and
Barron to support their joint trial and joinder of offenses, we
need not address Richardson's claim of prejudice. The dis-
trict court did not err in denying Richardson's pretrial motion
to sever or in refusing to declare a mistrial on Richardson's
substantive convictions.
III
Richardson's remaining arguments require little discussion.
With one exception, they all fail.
Richardson first claims ineffective assistance of counsel
based on trial counsel's failure to file a motion to dismiss
under the Speedy Trial Act. Richardson's detention hearing
occurred on April 27, 1995, but his trial did not begin until
over a year later, on May 1, 1996. Accounting for speedy
trial clock suspension for consideration of pretrial motions,
Richardson argues that the delay violated the Act's seventy-
day maximum by more than a month, requiring dismissal of
the charges.
Because ineffective assistance claims usually require evi-
dentiary hearings, we normally do not resolve such claims on
direct appeal. See United States v. Fennell, 53 F.3d 1296,
1303 (D.C. Cir. 1995). Although this rule has two excep-
tions--"when the trial record alone conclusively shows that
the defendant is entitled to no relief" and "when the trial
record conclusively shows the contrary," id. at 1303-04--we
agree with the government that this case falls into neither.
For one thing, nothing in the record conclusively shows that a
Speedy Trial Act violation occurred; further factfinding
would be necessary to determine the amount of time that the
speedy trial clock should have been stopped for the district
court to consider the multiple, complicated pretrial motions
with "reasonable promptness." United States v. Salerno, 108
F.3d, 730, 737 (7th Cir. 1997).
Even if the speedy trial clock did run out, moreover, the
record suggests that counsel might well have had sound
strategic reasons for not pursuing the violation. Asked by
the district court whether he objected to the May 1996 trial
date, trial counsel stated: "Given, from a lawyer's standpoint,
what we're facing and what we're facing in terms of investiga-
tion, I obviously would tell him that I would feel as his
representative, to put it mildly, uncomfortable in trying to try
a case like this in 70 days, and that's putting it mildly." Tr.
5/22/95 a.m. at 22. Given the complexity of this case, involv-
ing fifteen different crimes, multiple defendants, and allega-
tions of RICO and RICO conspiracy, we cannot assume that
counsel's failure to pursue a Speedy Trial Act claim amounted
to ineffective assistance. Under these circumstances, Rich-
ardson must pursue his claim under 28 U.S.C. s 2255 (1994).
Richardson next challenges his convictions for assault with
intent to murder while armed flowing from the Ibex nightclub
shooting, essentially contending that a variance between the
indictment and the government's evidence at trial violated his
right to be tried only on charges presented in an indictment
returned by a grand jury. Richardson argues that because
the government's evidence proved at most that he and his
codefendants fired randomly into the crowd, it cannot support
the indictment's charge that they assaulted six specifically
named individuals each "with intent to murder him" (empha-
sis added). He relies on Joseph v. United States, 597 A.2d 14
(D.C. 1991), in which the D.C. Court of Appeals found a
violation of the Grand Jury Clause where the indictment
charged "assault[ing] another with intent to kill him" ("direct
intent"), but the government's evidence proved that the de-
fendant actually intended to kill someone else ("transferred
intent").
Had the government relied at trial on some theory of intent
other than that accepted by the grand jury in the indictment,
Richardson might well have a valid constitutional claim. Cf.
Stirone v. United States, 361 U.S. 212, 217 (1960) (alteration
as to a material fact in the indictment "destroy[s] the defen-
dant's substantial right to be tried only on charges presented
in an indictment returned by a grand jury."). But unlike in
Joseph, here there is no indication that the government
switched theories of intent between the grand jury proceed-
ings and the trial. Each relevant count of the indictment is
titled simply "Assault of [named person] with Intent To
Murder While Armed." Each count refers to the relevant
provision of the D.C. Code titled "Assault with Intent to
Murder While Armed." Because appellant and his codefend-
ants fired into a crowd of people at close range, we have no
doubt that the grand jury, like the trial jury, understood the
government's theory of intent to mean "intent to murder the
persons in the crowd whom the bullets hit." We find nothing
significant in the addition of the object "him" to the end of
the phrase "assault[ ] ... with intent to murder" in other
parts of the indictment.
Next, relying on D.C. precedent that treats assault with a
dangerous weapon as a lesser included offense of armed
robbery, see Norris v. United States, 585 A.2d 1372 (D.C.
1991), Richardson argues that his conviction for assault with a
dangerous weapon for aiding and abetting the shooting at the
pursuing Horace & Dickie's employee merges with his convic-
tion for armed robbery. According to Richardson, the
charges merge because the restaurant robbery and the shoot-
ing were both parts of the same criminal act. Citing general
principles of D.C. criminal law, Richardson argues that a
robbery continues until the robber has completed the act of
"asportation," i.e., carrying away the stolen property, and
that asportation continues while the robber is being pursued
immediately after the robbery. See Carter v. United States,
223 F.2d 332, 334 (D.C. Cir. 1955).
To determine whether criminal acts are separate or part of
the same crime, the D.C. Court of Appeals uses a "fork in the
road" test. Spain v. United States, 665 A.2d 658, 660 (D.C.
1995). Acts are separate where "there was an appreciable
interval--albeit quite brief--between the two criminal epi-
sodes which showed that the defendant had reached a 'fork in
the road' or had acted in response to a 'fresh impulse.' " Id.
at 661. Robbery is particularly susceptible to "a series of
individually chargeable acts," Owens v. United States, 497
A.2d 1086, 1096 (D.C. 1985), because the crime "tends to be
completed quickly and to leave the perpetrator at a fork in
the road where he must consider whether to retreat or to
invade another interest," id. Where a "person not only robs
but also assaults the victim after the robbery is completed,
the assault will be treated as a separate offense." Id.
Applying these standards, we agree with the government
that Richardson's convictions for armed robbery and assault
with a deadly weapon do not merge. In Heiligh v. United
States, the D.C. Court of Appeals found that defendants
committed a fresh offense where, after making their robbery
victims lie on the floor and then exiting the building, they
threatened to shoot the victims who were following them.
See 379 A.2d 689, 694 (D.C. 1977). Having robbed and fled
Horace & Dickie's, Richardson and his codefendants had
likewise passed a "fork in the road" when one of them fired at
the pursuing employee.
In the alternative, Richardson argues that if the armed
robbery and the assault are different crimes, then the evi-
dence showing only that he aided and abetted the robbery
cannot support his conviction for aiding and abetting the
assault. This is a non sequitur. Inferring from Richardson's
aiding and abetting the robbery that he aided and abetted the
assault in no way conflicts with the notion that the two are
separate crimes. In any event, evidence that Richardson was
present at the time of the shooting, that he and his codefend-
ants were armed, and that he acted in concert with them to
flee the scene, supports an inference that Richardson could
have foreseen that one of his cohorts would fire at the
pursuing employee, and that he therefore aided and abetted
that assault. See United States v. Jones, 517 F.2d 176, 181
(D.C. Cir. 1975) (affirming defendant's convictions for armed
robbery and assault with a deadly weapon on an aiding and
abetting theory where four men robbed a bank and one shot a
police officer upon exiting the bank).
Relying on Cunningham, where we found that Richard-
son's codefendants' multiple felon-in-possession convictions
under 18 U.S.C. s 922(g) merged into one because the gov-
ernment presented no evidence that they possessed more
than one gun or that they acquired or stored them separately,
Richardson urges us to reverse one of his two felon-in-
possession convictions for the same reason. See 145 F.3d at
1398-99. The government concedes that Cunningham con-
trols. We accordingly vacate one of Richardson's felon-in-
possession convictions and remand for resentencing.
We have considered Richardson's remaining arguments and
find them without merit. With the exception of one of his
felon-in-possession convictions, Richardson's convictions are
affirmed.
So ordered.