Cornell, Russell Kilfoil and Ernesto were each convicted of racketeering by a federal jury in Winston-Salem last month. Cornell was convicted of two additional counts for a violent crime in aid of racketeering and carrying or using a firearm during and in relation to a crime of violence — both related to a shooting at Ashley Creek Apartment Homes in Greensboro in 2008.
The motion for a new trial, which was filed on Dec. 5, contends that the jury was confused or misunderstood the court's instructions for dealing with predicate acts. The motion notes that the jurors asked for clarification, but the judge simply referred them back to his earlier instructions.
The jury found that Cornell, Kilfoil and Wilson were each responsible for the same set of violations: conspiracy to commit murder, attempted murder, robbery, interference with commerce by threats of violence and bank fraud.
"In light of the evidence presented at the trial of the case, it is clear that the only way that the jury could have found identical predicate acts for each of the convicted defendants would be for the jury to ignore the instructions to consider the defendants individually and to base its verdict on the notion that each member of the conspiracy was responsible for all predicate acts that the jury concluded involved the enterprise," Michael Patrick, Cornell's court-appointed lawyer, wrote in the motion.
Additional excerpts from the motion after the jump:
... The clearest example of this is demonstrated by the evidence with regard to Ernesto Wilson. The government's evidence taken in the light most favorable to the government was that Mr. Wilson participated in a series of store robberies in April 2007. No evidence indicated that Mr. Wilson remained in North Carolina after May of 2007 or that he had any further contact with the other persons that the government alleged were members of the conspiracy in this case. Nevertheless, Mr. Wilson was found responsible for conspiracy to commit murder, attempted murder, interference with commerce by threats or violence and multiple acts of bank fraud. The government's evidence established that none of these acts occurred before the spring of 2008 and in the case of the Smith Homes shooting — which may have been found to be the attempted murder predicate act — occurred as late as August 2011, more than four years after Mr. Wilson left North Carolina. As a consequence, the jury must have completed the predicate act portion of the verdict sheet by holding Mr. Wilson responsible for any act they attributed to the enterprise. This enterprise approach to completing the verdict sheet is the very area about which the jury presented a question to the court several hours before they returned its verdict.
The same problems exist with respect to defendants Cornell and Kilfoil. With the jury completing the predicate act portion of the verdict sheet by assessing those acts engaged in by the enterprise rather than the individual, it cannot be determined that the jury found that Mr. Cornell's or Mr. Kilfoil's participation in the conspiracy embraced the particular predicate acts found by the jury.