Petition for Writ of Certiorari — Christopher Howard, Petitioner v. United States

Supreme Court briefSep 26, 2024

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APPENDIX A - 1

Case 22-3079, Document 85-1,05/31/2024, 3624901, Pagel of 6

22-3079 (Con)

United States v. Howard

vniWRECORDS

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order

filed on or after January 1,2007, is permitted and is governed by Federal Rule of Appellate

Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a

document filed with this court, a party must cite either the Federal Appendix or an

electronic database (with the notation "summary order"). A party citing a summary order

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 31st day of May, two thousand twenty-four.

PRESENT:

Reena Raggi,

Denny Chin,

Steven J. Menashi,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

No. 22-3079 (Con)

CHRISTOPHER HOWARD, aka JUJU,

Defendant-Appellant.*

* The Clerk of Court is directed to amend the caption as set forth above.

Case 22-3079, Document 85-1,05/31/2024, 3624901, Page2 of 6

For Appellee:

Alexandra N. Rothman and Hagan Scotten,

Assistant United

States Attorneys, for

Damian Williams, United States Attorney

for the Southern District of New York, New

York, NY.

For Defendant-Appellant:

Murdoch Walker, II,

and Bingzi Hu,

L'owther I Walker LLC, Atlanta, GA.

Appeal from a judgment entered on March 28, 2023, in the United States

District Court for the Southern District of New York (Torres, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Christopher Howard was convicted after a jury trial of racketeering

conspiracy in violation of 18 U.S.C. § 1962(d), violent crime in aid of racketeering

("VICAR") in violation of 18 U.S.C. § 1959(a)(3), (5), and using a firearm in

furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(l)(A)(iii). On

appeal, Howard argues that his Section 924(c) conviction must be vacated because

the district court's jury instructions were erroneous in light of the Supreme Court's

subsequent decision in United States v. Davis, 588 U.S. 445 (2019), and because the

conviction is not predicated on a valid crime of violence in light of the Supreme

Court's subsequent decision in United States v. Taylor, 596 U.S. 845 (2022). Howard

also argues that the failure of his trial counsel and former appellate counsel to

challenge the erroneous jury instructions amounted to ineffective assistance.

We review a district court's denial of a Rule 33 motion for a new trial for

abuse of discretion. United States v. Gabinskaya, 829 F.3d 127,134 (2d Cir. 2016). We

review a properly preserved challenge to an erroneous jury instruction for

Case 22-3079, Document 85-1,05/31/2024, 3624901, Page3 of 6

harmless error and an unpreserved challenge for plain error. See United States v.

Botti, 711 F.3d 299, 308 (2d Cir. 2013).

We conclude that the district court did not abuse its discretion in denying

Howard's motions for a new trial because the motions were untimely and, in any

event, meritless. We assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

Howard's motions were untimely and the district court did not abuse its

discretion in concluding that the untimeliness was not excusable. "Any motion for

a new trial grounded on any reason other than newly discovered evidence must

be filed within 14 days after the verdict or finding of guilty." Fed. R. Crim. P.

33(b)(2). A district court may excuse a late filing for "excusable neglect." Fed. R.

Crim. P. 45(b)(1)(B). In determining whether neglect is excusable, the district court

"considers] the danger of prejudice to the non-movant, the length of the delay

and its potential impact upon judicial proceedings, the reason for the delay,

including whether it was in the reasonable control of the movant, and whether the

movant acted in good faith." United States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993)

(internal quotation marks and alteration omitted).

Howard filed his motion first asserting the Davis argument in January

2022—nearly three years after the jury verdict and two-and-a-half years after Davis

was decided. Howard filed a supplemental motion first asserting the Taylor

argument in September 2022—three months after Taylor was decided. In his

appellate brief, Howard does not provide, any argument for why the untimeliness

was excusable and we therefore have no basis on which to conclude that the

district court abused its discretion in holding that it was not.1

1 To the extent that Howard argues that the untimeliness was the result of his former

counsel's deficient performance, as explained below the motion fails on the merits

regardless.

Case 22-3079, Document 85-1,05/31/2024, 3624901, Page4 of 6

Apart from the untimeliness, Howard's challenges to his Section 924(c)

conviction under Davis and Taylor, and his ineffective assistance of counsel claims,

fail on the merits.

Howard contends that the district court's Section 924(c) jury charge was

erroneous in light of Davis because the district court instructed the jury only as to

Section 924(c)(3)'s residual clause—which Davisheld unconstitutional—and not as

to the elements clause. This error was harmless. The jury found Howard guilty of

the VICAR offense and, as we explained in an earlier appeal in this case, "postDavis, the VICAR offense ... remains a valid predicate crime of violence as defined

. under the elements clause" because " [i]t is premised on the New York offense of

assault in the second degree, which categorically 'has as an element the use,

attempted use, or threatened use of physical force.'" United States v. White, 7 F.4th

90, 104 (2d Cir. 2021) (quoting 18 U.S.C. § 924(c)(3)(A)); cf. United States v. Blanco,

811 F. App'x 696, 701 (2d Cir. 2020) (explaining that because we have held bank

robbery to be "categorically a crime of violence," the defendant's "bank robbery

conviction ... supplies the 'crime of violence' element" and thereby "renders the

jury's finding on [the residual clause] both irrelevant and unnecessary").

Howard contends that his Section 924(c) conviction is also invalid in light of

Taylor because the VICAR count was based on alternative predicate crimes, not all

of which, he suggests, are crimes of violence under the categorical approach

employed in Taylor. This argument is meritless. The jury specifically found that

the VICAR predicate offense was assault with a dangerous weapon. See Special

Verdict Tr., App'x 148 ("On August 17,2014, did the defendant commit attempted

murder, assault with a dangerous weapon, neither, or both? Answer is: Assault

with a dangerous weapon."). And, as previously noted, we have held that this

offense is a categorical crime of violence. See White, 7 F.4th at 104 (holding that the

Case 22-3079, Document 85-1,05/31/2024, 3624901, Page5 of 6

VICAR offense predicated on New York second-degree assault remains a "valid

predicate crime of violence as defined under the elements clause").

Howard additionally contends that his trial and former appellate counsel

were ineffective because they did not, timely challenge the erroneous jury

instructions.2 "To prevail on an ineffective assistance of counsel claim, the

defendant must show that counsel's performance was deficient and that this

deficient performance prejudiced the defense." United States v. Bodnar, 37 F.4th 833,

845 (2d Cir. 2022) (internal. quotation marks omitted). Howard's ineffective

assistance claim fails because, as explained above, the arguments he faults counsel

for not raising would have failed and so could not have prejudiced his defense.

"Failure to make a meritless argument does not amount to ineffective assistance."

United States v. Regalado, 518 F.3d 143,149 n.3 (2d Cir. 2008) (quoting United States

v. Arena, 180 F.3d 380, 396 (2d Cir. 1999)).

Howard asserts that, even though his trial took place -before the Supreme Court decided

Davis, his trial counsel should have challenged the jury instructions for setting forth ah

incomplete definition of a crime of violence. But trial counsel's failure to do so did not

prejudice Howard. If the district court had instructed the jury as to the elements clause,

it would have instructed the jury that a finding of guilty on the VICAR count would

satisfy the crime of violence element for the Section 924(c) count. And even though the

cases establishing that the VICAR count was a categorical crime of violence had not yet

been decided, the possibility that the district court might have supplied an erroneous

instruction telling the jury otherwise does not constitute prejudice. See Williams v. Taylor,

529 U.S. 362, 392 (2000) ("[T]he likelihood of a different outcome attributable to an

incorrect interpretation of the law should be regarded as a potential 'windfall' to the

defendant rather than the legitimate 'prejudice' contemplated by our opinion in

Strickland.").

Case 22-3079, Document 85-1,05/31/2024, 3624901, Page6 of 6

We have considered Howard's remaining arguments, which we conclude

are without merit. For the foregoing reasons, we affirm the judgment of the district

court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

Case 22-3079, Document 85-3, 05/31/2024, 3624901, Pagel of 1

United States Court of Appeals for the Second Circuit

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

DEBRA ANN LIVINGSTON

CATHERINE O'HAGAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: May 31, 2024

Docket #: 22-3079cr

Short Title: United States of America v. White (Howard)

DC Docket#: 1:17-cr-611-8

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Torres

VERIFIED ITEMIZED BILL OF COSTS

Counsel for

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to

prepare an itemized statement of costs taxed against the

and in favor of

for insertion in the mandate.

Docketing Fee

Costs of printing appendix (necessary copies

Costs of printing brief (necessary copies

Costs of printing reply brief (necessary copies

)

(VERIFICATION HERE)

Signature

Case 22-3079, Document 85-2, 05/31/2024, 3624901, Pagel of 1

United States Court of Appeals for the Second Circuit

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

DEBRA ANN LIVINGSTON

CATHERINE O'HAGAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: May 31, 2024

Docket #: 22-3079cr

Short Title: United States of America v. White (Howard)

DC Docket#: l:17-cr-611-8

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Torres

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of

costs is on the Court's website.

The bill of costs must:

* be filed within 14 days after the entry of judgment;

* be verified;

* be served on all adversaries;

* not include charges for postage, delivery, service, overtime and the filers edits;

* identify the number of copies which comprise the printer's unit;

* include the printer's bills, which must state the minimum charge per printer's unit for a page, a

cover, foot lines by the line, and an index and table of cases by the page;

* state only the number of necessary copies inserted in enclosed form;

* state actual costs at rates not higher than those generally charged for printing services in New

York, New York; excessive charges are subject to reduction;

* be filed via CM/ECF or if counsel is exempted with the original and two copies.

9 9

BER 5800.16':

. 12/05/2021'

ATTACHMENT A

OUTGOING SPECIAL MAIL RECEIPT

Name and Address of Person Receiving Special Mail

FGIBERLIN

Name Sup

______ ' ^r\<?

Address \

______

Enter Inmate Name, Register No. and Housing Unit Here:

^\w<V

-ex' V’Wacv-'C^.

City

State

Zip Code

(Inmate Signature)

TSflT 0710 5570 0105 1118 II

receive

TJEE71 202'

The following is to be completed by staff:

ENTER SIGNATURE, TITLE AND DATE OF STAFF MEMBER RECEIVING SPECIAL MAIL.

<KC\

___(Signature and Title) • (Date Special Mail Received fr»m Inmate)

***?Once this receipt is filled out by the inmate, and unit staff have signed and dated this receipt, the receipt and special mail will be

forwarded by unit staff to the institutions outgoing mail box for further processing.***

4/2mn 6/202'\

Case 22-3079, Document 85-2, 05/31/2024, 3624901, Pagel of 1

United States Court of Appeals for the Second Circuit

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

DEBRA ANN LIVINGSTON

CATHERINE O'HAGAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: May 31, 2024

Docket #: 22-3079cr

Short Title: United States of America v. White (Howard)

DC Docket#: 1:17-cr-611-8

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Torres

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of

costs is on the Court's website.

The bill of costs must:

* be filed within 14 days after the entry of judgment;

* be verified;

* be served on all adversaries;

* not include charges for postage, delivery, service, overtime and the filers edits;

* identify the number of copies which comprise the printer's unit;

* include the printer's bills, which must state the minimum charge per printer's unit for a page, a

cover, foot lines by the line, and an index and table of cases by the page;

* state only the number of necessary copies inserted in enclosed form;

* state actual costs at rates not higher than those generally charged for printing services in New

York, New York; excessive charges are subject to reduction;

* be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 22-3079, Document 85-3, 05/31/2024, 3624901, Pagel of 1

United States Court of Appeals for the Second Circuit

Thurgood Marshall U.S. Courthouse

40 Foley Square

New York, NY 10007

DEBRA ANN LIVINGSTON

CATHERINE O’HAGAN WOLFE

CHIEF JUDGE

CLERK OF COURT

Date: May 31, 2024

Docket #: 22-3079cr

Short Title: United States of America v. White (Howard)

DC Docket#: l:17-cr-611-8

DC Court: SDNY (NEW YORK

CITY)

DC Judge: Torres

VERIFIED ITEMIZED BILL OF COSTS

Counsel for

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to

prepare an itemized statement of costs taxed against the

and in favor of

for insertion in the mandate.

Docketing Fee

Costs of printing appendix (necessary copies

)

Costs of printing brief (necessary copies

Costs of printing reply brief (necessary copies

(VERIFICATION HERE)

Signature

APPENDIX A - 2

7 FEDERAL REPORTER, 4th SERIES

CONCLUSION

We VACATE the district court’s deci

sion and REMAND for further proceedings consistent with this opinion.

(ojm NUMBER SYSTEM >

judgment of acquittal, government and de

fendant cross-appealed.

Holdings: The Court of Appeals, Kaplan,

J., sitting by designation, held that:

(1) evidence was sufficient to support con

viction for RICO conspiracy;

(2) evidence was sufficient to support con

viction for violent crime in aid of racke

teering; and

UNITED STATES of America,

Appellant-Cross-Appellee,

Michael WHITE, Joey Colon, Demetrius

Wingo, aka Poppa, Anthony Bush,

aka Ant, David Oquendo, Christian

Perez, aka Pun, James Robinson, Al

len Knight, aka Stutter, Miguel Cal

deron, aka Mick, James Snipes, aka 80

Mese, Wesley Monge, aka Wes, Oscar

Briones, aka O Block, Roy Robinson,

aka Mob, Defendants,

Christopher Howard, aka JuJu,

Defendant-Appellee-CrossAppellant.

Docket Nos. 19-3833-cr(Con),

20-2051-cr(XAP)

August Term 2020

United States Court of Appeals,

Second Circuit.

Argued: March 8, 2021

Decided: August 3, 2021

Background: Defendant was convicted in

' the United States District Court for the

Southern District of New York, Robert W.

Sweet, Senior District Judge, of Racketeer

Influenced and Corrupt Organization Act

(RICO) conspiracy, violent crime in aid of

racketeering, and using firearm in furtherance of crime of violence. Following grant

in part and denial in part of motion ’for

(3) offense of violent crime in aid of racke- •

teering was valid predicate crime of

violence to sustain conviction for using

firearm in furtherance of crime of vio

lence.

Affirmed in part, reversed in part, and.

remanded.

1. Criminal Law @=1081(2)

Defendant intended to appeal from

district court’s judgment of conviction, and

thus Court of Appeals had jurisdiction

over appeal, although notice of appeal stat

ed that defendant was appealing from or

der denying judgment of acquittal, and

defendant did not check box on form notice

indicating that he was appealing from

judgment of conviction; there was no prac

tical difference between appealing from

judgment of conviction and denial of mo

tion for judgment of acquittal on that judg

ment of conviction, and defendant indicat

ed on notice of appeal that his appeal

concerned his “Conviction.” 28 U.S.C.A.

§ 1291; Fed. R. App. P. 3(c)(1)(B); Fed. R.

Crim. P. 29.

2. Criminal Law @=1023(8)

Order denying a motion for judgment

of acquittal is not a final decision over

which Court of Appeals has appellate jurisdiction. 28 U.S.C.A. § 1291; Fed. R. Crim.

P. 29. ■

U.S. v. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

3. Criminal Law @= 1081(2)

Not every technical defect in a notice

of appeal constitutes a jurisdictional defeet.

4. Criminal Law ,©=1081(1)

Court of Appeals will take the parties’

intentions into account when construing a

notice of appeal and will find jurisdiction

when the intent to appeal from a decision

is clear on the face of, or can be inferred

from, the notice of appeal Fed. R. App.

P. 3(c)(1)(B).

5. Criminal Law @=753.2(6)

If the jury has returned a guilty ver

dict, the court may set aside the verdict

and enter an acquittal pursuant to rule

governing motion for judgment of acquit

tal, but it may do so only when there is no

evidence upon which a reasonable mind

might fairly conclude guilt beyond a rea

sonable doubt. Fed. R. Crim. P. 29(c).

6. Criminal Law @=1139

Court of Appeals reviews challenge to

sufficiency of evidence de novo, though

defendant carries heavy burden in making

such challenge.

7. Criminal Law @=1159.2(7)

Conviction must be upheld if any ra

tional trier of fact could have found the

essential elements of the crime beyond a

reasonable doubt.

8. Criminal Law @=1144.13(3,

1159.2(9), 1159.4(2)

5),

In conducting review of sufficiency of

evidence, Court of Appeals considers the

totality of the evidence in the light most

favorable to the government, crediting ev

ery inference that could have been drawn

in the government’s favor, and deferring to

the jury’s assessment of witness credibility

and its assessment of the weight of the

, evidence.

9. Conspiracy '©=>152

Essence of Racketeer Influenced and

Corrupt Organizations Act (RICO) con

spiracy is existence of agreement to violate

RICO’s substantive provisions.

U.S.C.A. § 1962(d).

io. Conspiracy ©=152

Though substantive Racketeer Influ

enced and Corrupt Organizations Act

(RICO) offenses require proof of , enter

prise and pattern of racketeering activity,

establishment of enterprise is not element

of RICO conspiracy offense; government

need only prove that defendant knew of,

and agreed to, general criminal objective

of jointly undertaken scheme. 18 U.S.C.A.

§§ 1961(4), 1962(d).

11. Conspiracy @=152

To be convicted as conspirator under

Racketeer Influenced and Corrupt Organi

zations Act (RICO), one must be shown to

have possessed knowledge of only general

contours of conspiracy,

18 U.S.C.A.

§ 1962(d).

12. Conspiracy @=329

Proof of actual existence of Racketeer

Influenced and Corrupt Organizations Act

(RICO) enterprise, though not necessary

to convict on conspiracy charge, can be

highly relevant to establishing alleged

RICO conspiracy. 18 U.S.C.A. §§ 1961(4),

1962(d).

13. Racketeer Influenced and Corrupt

Organizations @=36

For purposes of Racketeer Influenced

and Corrupt Organizations Act (RICO) enterprise, association-in-fact enterprise is

proved by evidence' of an ongoing organization, formal or informal, and by evidence

that the various associates function as a

continuing unit. .18 U.S.C.A. § 1961(4).

7 FEDERAL. REPORTER, 4th SERIES

14. Racketeer Influenced and Corrupt

Organizations @=35

Racketeer Influenced and Corrupt Organizations Act (RICO) enterprise must

have at least three structural features:

purpose, relationships among those associated with enterprise, and longevity suffi

cient to permit these associates to pursue

enterprise’s

purpose.

U.S.CA.

§ 1961(4).

18. Criminal Law ©=1159.1

Court of Appeals defers to the jury's

rational determinations of the weight of

the evidence, the credibility of the witnesses, and choice of the competing inferences that can be drawn from the evidence.

19. Racketeer Influenced and Corrupt

Organizations @=49

To convict the defendant of a violent

15. Conspiracy @=152

crime in aid of racketeering, the govern

If government, proves existence of ment is obliged to prove five elements: (1)

Racketeer Influenced and Corrupt Organi

that the organization was a Racketeer In

zations Act (RICO) enterprise, court need

fluenced and Corrupt Organizations Act

inquire only whether alleged conspirator . (RICO) enterprise, (2) that the enterprise

. knew what other conspirators were up to was engaged in racketeering activity as

or whether situation would logically lead defined in RICO, (3) that the defendant in

alleged conspirator to suspect he was part question had a position in the enterprise,

of larger enterprise.

18 U.S.C.A.

(4) that the defendant committed the al

§§ 1961(4), 1962(d).

leged crime of violence, and (5) that his

genera! purpose in so doing was to main16. Conspiracy <5^350

Evidence was sufficient to support tain or increase his position in the enterconviction for Racketeer Influenced and prise. 18 U.S.C.A. §§ 1959(a), 1961(4).

Corrupt Organization Act (RICO) conspir

20. Racketeer Influenced and Corrupt

acy; there was adequate proof that defen

Organizations @=49, 95

dant knew of, and agreed to, gang’s gener

prosecution for violent crime in aid

al criminal objective of committing acts of

racketeering,

element that general pur

violence against rival gang, defendant rou

tinely told other gang members about his pose in committing alleged crime of vio

desire to harm rival gang members, and lence was to maintain or increase his posi

defendant, accompanied by another gang tion in the enterprise is satisfied if the jury

member, shot three men from rival gang. could properly infer that the defendant

committed his violent crime because he

18 U.S.CA. §§ 1961(4), 1962(d).

knew it was expected of him by reason of

17. Racketeer Influenced and Corrupt his membership in the enterprise or that

Organizations @=36

he committed it in furtherance of that

Evidence that an alleged associated- membership; the government need not

in-fact enterprise had a hierarchy, indue- prove that maintaining or increasing the

tion requirements or rituals, and decision- defendant’s position in the Racketeer In

making procedures, or that members were fiuenced and Corrupt Organizations Act

expected to serve any kind of roles is not (RICO) enterprise was his sole or principal

required to sustain a Racketeer Influenced motive. 18 U.S.C.A. §§ 1959(a), 1961(4).

and Corrupt Organizations Act (RICO)

conviction; nor is it a requirement that 21. Courts @=107

RICO enterprises have unique greetings.

Denying summary orders precedential

18 U.S.CA. § 1961(4).

effect does "not mean that the court consid-

t -

U.S. v. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

ers itself free to rule differently in similar lence to sustain conviction for using fire

arm in furtherance of crime of violence;

cases.

„

, offense was premised on New York offense

22. Racketeer Influenced and Corrupt

...

, ,

...

. ,.

of assault m the second degree, which

Organizations ©=49

. ,, , ■,

,7,

categorically had as element the use, atDefendant’s personal motive for com- ,

. .

■ . , . ,

tempted use, or threatened use of physical

mitting actofviolence does not preclude „

force agamst person or property ot anothhis convictionunderstatute prohibiting vi^ ' lg U.S.C.A. §§ 924(c)(3)(A), 1959(a);

olent crimes in aid of racketeering as long N Penal Law § 120.05(2).

as he likewise was motivated by desire to

increase or maintain his position in Racke

West Codenotes

teer Influenced and Corrupt Organizations

18 U.S.C.A. Recognized as Unconstitutional

Act (RICO) enterprise.

18 U.S.C.A. § 924(c)(3)(B)

§§ 1959(a), 1961(4).

23. Racketeer Influenced and Corrupt

Organizations ©='49

Evidence was sufficient to support

finding that defendant committed shooting

with requisite motive to maintain or increase his membership in gang, so as to

support conviction for violent crime in aid

of racketeering; defendant’s conflict with

victim stemmed entirely from gang’s rival

ry with another gang, defendant openly

discussed his desire to retaliate against

members of rival gang, and when defendant committed shooting, he did it with

another gang . member, consistent with

gang practices, on rival gang’s territory.

18 U.S.C.A. § 1959(a).

Appeal from the United States District

Court for the Southern District of New

York

ALEXANDRA ROTHMAN, Assistant

United States Attorney (Christopher

Clore, Jordan Estes, Thomas McKay, Assistant United States Attorneys, on the

brief), for AUDREY STRAUSS, United

States Attorney for the Southern District

New York, for Appellant-Cross-Appel^eeJOHN A. DIAZ, Diaz & Moskowitz

PLLC, New York, New York, for Defendant-Appellee-Cross-Appellant.

24. Criminal Law ©=’1159.2(8)

Before: SACK and MENASHI, Circuit

Equipoise rule is of no matter to suffi Judges, and KAPLAN, District Judge.*

ciency analysis because it is the task of the

jury, not the court, to choose among com

KAPLAN, District Judge:

peting inferences; the rule applies only

This case arises from a violent rivalry

where evidence is nonexistent or so mea- '

between two neighborhood gangs that op

ger as to preclude the inferences neces

erated in and around the Mill Brook Hous

sary to a finding favorable to the govern

es, a housing project in the Bronx. Gang

ment.

violence divided the Mill Brook Houses

25. Weapons <£=194(2)

into two warring territories: the “up-theOffense of violent crime in aid of rack- block” section, which was controlled by a

eteering was valid predicate crime of vio- gang called MBG (“Mill Brook Gangstas”

* Judge Lewis A. Kaplan, United States District

Judge for the Southern District of New York,

sitting by designation.

7 FEDERAL REPORTER, 4th SERIES

or “Money Bitches Guns”), and the “downthe-block” section, which was controlled by

a gang called Killbrook. Members of the

rival gangs fought, shot, and robbed one

another for years.

On the night of August 17, 2014, defen

dant Christopher Howard, a member of

MBG, ventured down-the-block with an

other MBG member and shot three men.

One of the victims, Shadean Samuel, was a

Killbrook member who had broken Howard’s jaw in a fight between MBG and

Killbrook in 2011. After a one-and-a-half

week trial in the United States District

Court for the Southern District of New

York, a jury convicted Howard of a racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organization

Act (“RICO”), 18 U:S.C. § 1962(d), a vio

lent crime in aid of racketeering (“VIC

AR”) in violation of 18 U.S.C. § 1959(a),

and using a firearm in furtherance of the

racketeering conspiracy and the VICAR

offense in violation of 18 U.S.C. § 924(c).

ficient to sustain Howard’s conviction on

the racketeering conspiracy count but hold

that the district court erred in vacating his

convictions on the VICAR and firearm

counts.

FACTS

Howard’s Trial

In July 2018, a superseding indictment

charged Howard and nine co-defendants

-with racketeering and other crimes in connection with MBG and the YGz, a larger

gang also operating in and around the Mill

Brook Houses (“Mill Brook”) that shared

overlapping membership with MBG. Howwas charged in Count One with the

racketeering conspiracy relating to MBG,

in Count Six with committing a violent

crime in aid of racketeering (namely, the

August .2014 shooting), and in Count

Twelve with using a firearm in furtherance

of the racketeering conspiracy and the

VICAR offense.

The district court subsequently granted

The case originally was assigned to

in part Howard’s motion for judgment of

Judge Sweet, who passed away shortly

acquittal under Federal Rule of Criminal

after presiding over Howard’s jury trial. It

Procedure 29, vacating the VICAR and

was reassigned to another judge, who de

firearm counts. In the district court’s view,

cided the post-trial motion at issue. The

the evidence was insufficient to support

evidence, viewed in the light most favor

the determination that Howard committed

the August 2014 shooting in furtherance of able to the government, established the

the racketeering conspiracy or to advance following.

his position within MBG, rather than be

A. MBG

cause of an alleged personal vendetta

against Samuel. The district court denied

MBG is a “neighborhood gang” that was

the motion insofar as it sought to overturn started in Mill Brook around 2003.1 Mill

the conviction on the racketeering conspir- • Brook consisted of ten numbered apartacy count. The government and Howard ment buildings that sloped up a hill. Resicross-appeal from the district court’s or- dents referred to buildings eight, nine, and

der.

ten - located up the hill - as the up-theFor the following reasons, we agree with block section, which was, MBG’s territory,

the court below that the evidence was suf- They referred to buildings one through six

1. All appendix and special appendix refer

ences are to the appendices filed in No. 19-

3313-cr(L).'

U.S. V. WHITE .

Cite as 7 F.4th 90 (2nd Cir. 2021)

as the down-the-block section, which was

Killbrook’s territory.2

The rivalry between MBG and Killbrook

began in 2007, when one of MBG’s leaders,

Joey Colon, shot a man from down-theblock. After that shooting, MBG and Killbrook clashed violently for some time, although there were intermittent periods

when the violence subsided. Witnesses testified that there were robberies, fights,

stabbings, and shootings between MBG

and Killbrook members with varying frequency from about 2007 to 2016. Colon

testified that he tried to squash the rivalry around October 2010 because it had

led to. an increased police presence in the

area, which made it harder for him to sell

drugs.3 But the rivalry roared back to life

in spring 2011, when several fights and

shootings occurred. When tensions were

high, any Killbrook member was a “fair

target” for MBG members to shoot.4

Howard was one of MBG’s original

members. Though not high-ranking, he

routinely posted on Facebook about his

MBG membership. His Facebook account

included posts about MBG, photographs of

Howard with other MBG members, and

conversations between Howard and other

MBG members in which they discussed

shootings and tension with people from

down-the-block.5 MBG had its own handshake (known as “peacing”) that its mem

bers, including Howard, used to greet each

other.6

MBG members customarily committed

acts of violence together. It was their practice to inform one another of their exploits

so that no member would be caught off

guard by an act of retaliation. According to

cooperating witnesses, MBG members

earned respect and rose in rank by committing shootings against rivals. Colon testified that he became one of MBG’s leaders

by committing several shootings. Howard

openly discussed both his desire to retaliate against' members of Killbrook and his

need to “put in work” - ie., “[p]romote

violence [and] shootings” - for MBG.7

Building seven was "a neutral building”

colloquially referred to as "midtown." A466.

A474.

A499.

A620, A639.

A470.

A481-82, A514, A623, A629.

A526.

Some MBG members sold drugs, typically crack cocaine and marijuana, around

Mill Brook. MBG had a “stash house” in

up-the-block Mill Brook where Howard often spent time.? MBG members stored

drugs, packaged and cooked crack cocaine,

and maintained shared firearms at the

stash house. Any gun kept at the stash

house was considered an “MBG gun” that

all MBG members could use.9

Most MBG members were members also

of the YGz, the ‘Young Gunnaz. >uo The

YGz was a “larger” gang that, unlike

MBG, operated throughout New York.11

MBG members sometimes used the YGz

phrase “what’s gunning” to greet each oth

er.12 At trial, Judge Sweet - at Howard’s

request - limited the evidence about the

YGz to basic evidence of its functions and

Id.

10. A465. Count Two of the superseding in

dictment charged certain of Howard's co-de

fendants with a racketeering conspiracy in

connection with the YGz. Howard was not

charged with being a member of the YGz.

A417.

11.

A511.

12.

A470.

7 FEDERAL REPORTER, 4th SERIES

organizational structure. He gave a limit

ing instruction stating that Howard’s

charges did not relate “in any way” to the

YGz and that the jury was “to draw no

inference from any of the testimony about

[the] YGz against ... Howard.13

B: The August 20U Shooting

By the time of the shooting, the rivalry

between MBG and Killbrook apparently

had become more subdued, although it had

not subsided completely. Melendez testified that, as of August 2014, the relationship between MBG and Killbrook was both

“hostile” and “cordial,” and there had been

no shootings for about a year.18 Nevertheless, “there was still some tension between

the two sides.”19 Melendez recalled noticing Jose near a down-the-block store hours

before the shooting, which he thought was

unusuai because MBG members typically

did not venture into Killbrook’s territory.20

On the night of August 17, 2014, Howard

ventured down-the-block with fellow MBG

member Jonathan Jose and shot three

men: two Killbrook members, including

Samuel, and one other man from downthe-block. There was evidence that How

ard committed this shooting at least in

After the shooting, Howard ran into Mepart in retaliation for a fight between . lendez at a memorial service. Howard told

MBG and Killbrook in 2011 in which Sam- Melendez that he had meant to shoot only

uel broke Howard’s jaw. The government Samuel, not the other two men.21 Around

introduced a number of Howard’s Face- 2015, Howard ran into Killbrook member

book messages in which he informed other Jose Rodriguez on the Staten Island FerMBG members that he wanted to retaliate ry. Howard aggressively approached Rodagainst Killbrook generally and Samuel in riguez, who had robbed Howard in 2009

“to get status” with Killbrook.22 But Howparticular for the 2011 fight.

ard ultimately agreed ■ to refrain from

On the night of the shooting, Jose went fighting Rodriguez so as to not “start

down-the-block and saw Samuel.14 Once something up again” between MBG and

Jose located Samuel, Jose called Howard, Killbrook.23 Howard told Rodriguez that

who joined him down-the-block. Around his “main focus” down-the-block was Sam3:00 A.M., Howard and Jose approached uel:24 Rodriguez testified that he believed

Samuel, who was sitting with a few other that Samuel had broken Howard’s jaw in

people in a courtyard near a flagpole.15 2011 because Samuel “was trying to get in

Howard fired three or four shots, wound good with [Killbrook]. »25

ing Samuel and the two other men.16 An

In relevant part, the trial court charged

eyewitness, Raynaldo Melendez, identified

the jury as follows:

Howard as the shooter.17

13.

A502.

20.

Id..

14.

A519.

21.

A456-57.

22.

A542-43.

23.

Id.

24.

A543..

25.

A544.

15, A455.

16.

A425, A432-33.

17.

A456-57.

18.

A454-55.

19.

Id.

U.S. V. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

The fifth element that the government

has to prove with respect to Count Two1

261 is that the defendant acted for. the

purpose of gaining entrance to, maintaining a position in, or increasing a

position in that enterprise [MBG]. To

establish that the defendant committed

the crime alleged for the purpose of

gaining entrance or maintaining or in

creasing his position in the enterprise,

the government must prove that the de

fendant’s general purpose in committing

the crime in question was to gain en

trance to, to increase his position in, or

to maintain his position' in the enter

prise.

The government does not need to prove

that maintaining or increasing his position in the enterprise was the defendant’s sole or principal motive, so long

as it was a substantial motivating fac-

tor in the defendant’s decision to partic

ipate in the■ attempted murder and/or

the assault with a deadly weapon.21

The ^ convicted Howard on all counts,

26. It appears that the counts in the supersed

ing indictment were renumbered at Howard's

trial, causing the VICAR count to become

Count Two. This is common where, as here,

the defendant being tried was not charged

with all of the counts in the indictment.

R. App. P. 3(c)(1)(B) requires that a notice

of appeal "designate the judgment, order,

or part thereof being appealed.” Hence, it is

arguable that Howard has not • appealed

from the judgment of conviction and that

his appeal from the order should be dis

missed for want of jurisdiction.

However, " 'not every technical defect in a

notice of appeal constitutes a jurisdictional

defect,' " Elliott v. City of Hartford, 823

F.3d 170, 172 (2d Cir. 2016) (quoting Grune

v. Coughlin, 913 F.2d 41, 43 (2d Cir. 1990)),

and we have held that Rule 3(c)(1)(B)

should be applied "quite liberally on the

understanding that ‘mere technicalities

should not stand in the way of consider

ation of a case on its merits.' " United States

v. Caltabiano, 871 F.3d 210, 215 (2d Cir.

2017) (quoting Torres v. Oakland Scavenger

Co., 487 U.S. 312, 315, 108 S.Ct. 2405, 101

L.Ed.2d 285 (1988)). We accordingly will

" 'tak[e] the parties' intentions into ac

count" when construing a notice of appeal

and will find jurisdiction when " ‘the intent

• to appeal from a decision is clear on the

face of, or can be inferred from, the notice

of appeal.’ '' Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 134 (2d Cir.

2016) (quoting Sahu v. Union Carbide Corp.,

548 F.3d 59, 65-66 (2d Cir. 2008)) (altera

tion omitted).

27.

A580 (emphasis added).

28. A738. The government's appeal is No. 193313-cr(L).

29. Before proceeding, we address a jurisdic

tional issue raised by Howard's notice of ap

peal, which stated that he was appealing from

the "order denying a judgment of acquittal

entered in this action on November 4, 2019."

Notice of Appeal, United States v. Howard,

No. 17-cr-611 (S.D.N.Y June 24, 2020), ECF

No. 673 (hereinafter "ECF No. 673”). How

ard did not check the box on the form notice

indicating that he was also appealing from

the district court’s judgment of conviction.

See id. He filed no notice of appeal from that

judgment.

An order denying a motion for judgment of

acquittal under Rule 29 is not a final deci

sion over which we have appellate jurisdic

tion. United States v. Ferguson, 246 F.3d

129, 138 (2d Cir. 2001) (citing 28 U.S.C.

§ 1291 and United States v. Aliotta, 199

F.3d 78, 81 (2d Cir. 1999)). Moreover, Fed.

Following the verdict, Howard moved,

pursuant to Fed. R. Crim. P. 29, for judg

ment of acquittal on all counts. By order

dated November 4, 2019, the district court

granted so much of the motion as sought a

judgment of acquittal on the VICAR and

firearm counts but denied it as to the

racketeering conspiracy count. The gov

ernment promptly appealed from that or

der.28

[1-4] On June 11, 2020, Howard was

sentenced on the undisturbed count of conviction, principally to two years’ imprisonment. Judgment was entered the same day

and, on June 24, 2020, Howard filed a

notice of appeal.29

7 FEDERAL REPORTER, 4th SERIES

DISCUSSION

[5] “If the jury has returned a guilty

verdict, the court may set aside the verdict

and enter an acquittal” pursuant to Federal Rule of Criminal Procedure 29(c), but it

may do so only when “there is ‘no evidence

upon which a reasonable mind might fairly

conclude guilt beyond a reasonable

doubt. i »30

[6-8] We review a challenge to the suf

ficiency of the evidence de novo, though a

defendant “carries a heavy burden” in

making such a challenge.31 A conviction

must be upheld “if ‘any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt. J »32 In conducting our review, we

consider the totality of the evidence “ ‘in

the light most favorable to the government, crediting every inference that could

Under these principles, we conclude that

Howard intended to appeal from the dis

trict court's judgment of conviction and

that we have jurisdiction over his appeal.

There is no practical difference between

■appealing from a district court’s judgment

of conviction and a district court's denial of

a motion for a judgment of acquittal on that

judgment of conviction. Moreover, Howard

indicated on the notice of appeal that his

appeal concerned his "Conviction.” See

ECF No. 673. Construing the notice of ap

peal liberally - as we must - it is clear that

Howard's intent to appeal from the district

court’s judgment of conviction can "be in

ferred from ... the notice of appeal,” Kovaco, 834 F.3d at 134 (quotation marks omit

ted), and that his failure to do so expressly

is a "mere technicalit[y]” that "should not

stand in the way of” our adjudication of

this case. Caltabiano, 871 F.3d at 215 (quo

tation marks omitted).

30. United States v. Irving, 452 F.3d 110, 117

(2d Cir. 2006) (quoting United States v. Taylor,

464 F.2d 240, 243 (2d Cir.1972)).

31. Id.

have been drawn in the government’s favor, and deferring to the jury’s assessment

of witness credibility and its assessment of

i »33

We turn

the weight of the evidence,

first to Howard’s challenge to the conviction on the racketeering conspiracy charge

(Count One),

A. Howard’s Appeal - Racketeering Con

spiracy

Howard contends that the evidence was

insufficient to permit a conclusion that

MBG was a RICO enterprise in which he

knowingly participated. We disagree.

[9-11] We note at the outset that Howard’s argument is inherently flawed. The

essence of a RICO conspiracy is “the exisfence of an agreement to violate RICO’s

substantive provisions.”34 Though the sub

stantive RICO offenses require proof of an

enterprise and a pattern of racketeering

activity, “the establishment of an enter32. United States v. Vemace, 811 F.3d 609, 615

(2d Cir. 2016) (quoting Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979)).

33. United States v. Aquart, 912 F.3d 1, 17 (2d

Cir. 2018) (quoting United States v. Sheehan,

838 F.3d 109, 119 (2d Cir. 2016)).

34. See United States v. Benevento, 836 F.2d

60, 73 (2d Cir. 1987) (emphasis added), abro

gated on other grounds by United States v.

Indelicato, 865 -F.2d 1370 (2d Cir.1989); see

also United States v. Arrington, 941 F.3d 24,

36-37 (2d Cir. 2019); United States v. Applins,

637 F.3d 59, 72-76 (2d Cir. 2011). Notably,

the RICO conspiracy provision is broader

than the general conspiracy provision appli

cable to federal crimes, 18 U.S.C. § 371.

"There is no requirement of some overt act or

specific act. in the [RICO conspiracy provi

sion], unlike the general conspiracy provision

.... which requires that at least one of the

conspirators have committed an 'act to effect

the object of the conspiracy.’ " Salinas v.

United States, 522 U.S. 52, 61, 118 S.Ct. 469,

139 L.Ed.2d 352 (1997) (quoting 18 U.S.C.

§371).

U.S. v. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

prise is not an element of the RICO con- tural features: a purpose, relationships

spiracy offense.”35 The government “need among those associated with the enteronly prove that the defendant knew of, and prise, and longevity sufficient to permit

agreed to, the general criminal objective of these associates to pursue the enterprise’s

a jointly undertaken scheme.”36 We have purpose.”42 If the government proves the

’ analyzed whether the government has sat- existence of a RICO enterprise, “we need

isfied this burden by looking to whether inquire only whether an alleged conspirathe evidence permitted a conclusion that tor knew what the other conspirators ‘were

the defendant knowingly “agreed with oth- up to’ or whether the situation would logier[s] ... to function as a unit for the cally lead an alleged conspirator ‘to suscommon purpose” of engaging in racke- pect he was part of [the] larger enterteering activity.37 “To be convicted as a prise, > »43

conspirator [tinder RICO], one must be

[16] The evidence at Howard’s trial

shown to have possessed knowledge of

was more than sufficient under either of

only the general contours of the conspira- .

these standards. First, there was adequate

»38

cyproof that Howard knew of, and agreed to,

[12-15] Of course, proof of the actual MBG’s general criminal objective of cornexistence of a RICO enterprise - though mitting acts of violence against Killbrook.

not necessary to convict on a conspiracy . For years, MBG collectively engaged in

charge - can be highly relevant to estab- violence, including fights and shootings,

fishing an alleged RICO conspiracy.39 A against its rivals from down-the-block.

RICO enterprise “includes any ... group Howard routinely told other MBG memof individuals associated in fact although bers about his desire to harm Killbrook

riot a legal entity.”40 An association-in-fact members and his need to “put in work” enterprise, which the government argues i.e., “[pjromote violence [and] shootings” the evidence sufficiently established at for MBG.44 He committed such an act of

Howard’s trial, “is proved by evidence of -violence when he - accompanied by anothan ongoing organization, formal or infor- er MBG member - shot three men from .

mal, and by evidence that the various asso- down-the-block, two of whom were Killciates function as a continuing unit.”41 The brook members. From this evidence, a juenterprise “must have at least three struc- ror reasonably could have inferred that

35. Applins, 637 F.3d at 75; see also City of

New York v. Bello, 579 F. App’x 15, 17 (2d

Cir. 2014) (summary order).

(quoting United States v. Turkette, 452 U.S.

576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246

(1981)).

36.

Arrington, 941 F.3d at 36-37.

40.

37.

Id. at 37.

41. United States v. Turkette, 452 U.S. 576,

583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).

38. United States v. Zichettello, 208 F.3d 72,

100 (2d Cir. 2000).'

39. See United States v. Pizzonia, 577 F.3d 455,

463 (2d Cir.- 2009) ("Just as the evidence used

to establish the enterprise and pattern ele

ments ‘may in particular cases coalesce,’ so

too may the evidence used to prove those

elements and a conspiratorial agreement to

engage in racketeering.” (citations omitted)

18 U.S.C. § 1961(4).

42. Boyle v. United States, 556 U.S. 938, 946,

129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

43. Zichettello, 208 F.3d at 99 (quoting United

States v. Viola, 35 F.3d 37, 44-45 (2d Cir,

1994)).

44.

See A481-82, A514.

7 FEDERAL REPORTER, 4th SERIES

100

Howard agreed with other MBG members

to function as a unit for the common purpose of committing acts of violence. -

ment proved a racketeering conspiracy

only in connection with the YGz.

45. Brief for Defendant-Appellee-Cross-Appellant Christopher Howard (“Howard Br.”) at

18, United States v. Howard, No. 19-3313cr(L) (2d Cir. Sept. 24, 2020); see also id. at

21,23,25-26.

48. See, e.g., Boyle, 556 U.S. at 948, 129 S.Ct.

2237.

[17] In any. event, the evidence was

Second, the evidence permitted the jury sufficient to establish that, though many

to find that MBG was a RICO enterprise MBG members were members also of the

in which Howard knowingly participated. YGz, MBG members functioned separately

The government adduced evidence that as a unit for the purpose of engaging in

MBG members committed acts of.violence violence against Killbrook and selling

in groups and that performing such acts of drugs. MBG had its own leaders, memviolence could increase an MBG member’s bers, and practices, which included cornstatus in the gang. Moreover, MBG mem- mitting acts of violence in groups and disbers functioned as a unit for the common seminating information about the gang’s

purpose of selling drugs. MBG maintained activities to protect members from retaliaa stash house where its members kept tion.46 Contrary to Howard’s contention,

guns, sold drugs, and discussed their ex- evidence that an alleged enterprise had a

ploits. Howard spent time with other MBG “hierarchy, induction requirements or ritumembers at the stash house, from which a als, decisionmaking procedure[s], or that

juror reasonably could have inferred that ... members were expected to serve any

Howard was part of an enterprise that kind of roles”47 -which he argues that

sold drugs. Finally, MBG had a gang MBG lacked - is not required to sustain a

handshake and phrase that its members, RICO conviction.48 Nor is it a requirement

including Howard, used to greet each oth- that RICO enterprises have “unique”

er. This was further evidence of MBG’s ■ greetings.49

existence as an association-in-fact enter[18] Finally, Howard argues that MBG

prise.

was not a separate RICO enterprise beHoward argues also that there was in- cause many of the acts of violence the

sufficient evidence to establish that MBG government attributed to the MBG/Killwas a RICO enterprise “separate and brook rivalry actually were committed perapart from the YGz enterprise.”45 This ar- sonally by Colon or in connection with the

gument finds no support in the record, YGz. This argument is meritless. The govwhich - at Howard’s request - was limited ernment presented extensive evidence

with respect to the YGz. Indeed, Judge about the violent MBG/Killbrook rivalry', '

Sweet instructed the jury that Howard’s which extended from at least 2007 to 2016.

charges did not relate “in any way” to the To the extent that there was some eviYGz. In these circumstances, and in light dence that MBG members made an effort

of the evidence described above, it would to “squash” the rivalry or that certain

defy reason to conclude that the govern- shootings were personal in nature, that

46.

See A470, A485-87. •

47.

Id. at 19.

49. See Howard Br. at 20 (taking issue with

the fact that “none of the witnesses described

how the MBG ‘peacing’ and 'greeting' was

separate or distinct from the YGz[’s]“ greet

ing); Boyle, 556 U.S. at 948, 129 S.Ct. 2237.

U.S. V. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

would not require us to vacate Howard’s

conviction in light of.the ample evidence

the government presented about the nature of the conflict. We defer to the jury’s

rational determinations “of the weight of

the evidence,” “the credibility of the witnesses,” and “choice of the competing inferences that can be drawn from the evidence.”50

Accordingly, we hold that the district

' court did not err in denying Howard’s

motion for judgment of acquittal on Count

One.

The Government’s Appeal

101

(2) that the enterprise was engaged in

racketeering activity as defined in RICO,

(3) that the defendant in question had a

position in the enterprise, (4) that the defehdant committed the alleged crime of

violence, and (5) that his general purpose

in so doing was to maintain or increase his

position in the enterprise.”52 In vacating

Howard’s conviction on this count, the district court relied solely on the fifth element. In its view, the evidence was not

sufficient to establish that Howard committed the shooting with the requisite mo

tive - i.e., to maintain or increase his

membership in MBG - rather than to further his alleged personal vendetta against

Samuel.

The government appeals from so much

of the district court’s November 4, 2019

order as granted Howard’s Rule 29 motion

for judgment of acquittal on Count Six and

[20-22] We consistently have con

Count Twelve.51

strued “the ‘maintaining or increasing poFor the reasons that follow, we hold that ■ sition’ language in § 1959 ... ‘liberally, > »53

the district court erred in both respects. ' This element is “satisfied if the jury could

properly infer that the defendant commit

1. Count Six - VICAR

ted his violent crime because he knew it

[19] The district court vacated How- was expected of him by reason of his memard’s conviction on Count Six, which bership in the enterprise or that he corncharged him with a violent crime in aid of mitted it in furtherance of that member

racketeering under 18 U.S.C. § 1959(a) in ship.”54 The government need not prove

connection with the August 2014 shooting, that maintaining or increasing the defenTo convict the defendant of a violent crime dant’s position in the RICO enterprise was

in aid of racketeering, the government was his “sole or principal motive.”55 Indeed, as

obliged to prove five elements: “(1) that we held in United States v. Santiago-Orthe Organization was a RICO enterprise, tiz,5s a defendant’s personal motive for

50. United States v. Morrison, 153 F.3d 34, 49

(2d Cir. 1998).

52. United States v. Concepcion, 983 F.2d 369,

381 (2d Cir. 1992).

51. There are references in the record and the

briefs to Counts One, Two, and Three. From

. the context, it is clear that these are Counts

One, Six and Twelve' of the superseding in

dictment. They apparently were referred to

as Couiits One, Two and Three, respectively,

in a redacted version of the superseding in

dictment that excluded references to co-defendants who were not tried together with

Howard, a practice common in the Southern

District of New York and doubtless else

where.

53. United States v. Bruno, 383 F.3d 65, 83 (2d

Cir. 2004), as amended (Oct. 6, 2016) (quoting

United States v. Rahman, 189 F.3d 88, 127 (2d

Cir. 1999)).

54.

Concepcion, 983 F.2d at 381.

55.

Id.

56. 797 F. App'x 34 (2d Cir. 2019) (summary

order), cert, denied, ---- U.S. -------, 141 S. Ct.

662, 208 L.Ed.2d 270 (2020). Though we de-

102

7 FEDERAL REPORTER, 4th SERIES

In vacating Howard’s conviction, the dis

trict court failed to view the evidence in

the light most favorable to the government

and overlooked or minimized evidence

tending to show that Howard was motivat

ed at least in part by his position in MBG. ■

The trial court’s jury instructions were For instance, citing our opinion in United

consistent with this, principle. As noted, the States v. Thai,59 the district court wrote

court charged the jury in relevant part that “[t]he evidence in this case fails to

that “[t]he government does not need to show that the Shooting was consistent with

prove that maintaining or increasing his MBG’s operations or goals at the time it

position in the enterprise was the defen- was committed” because the “rivalry bedant’s sole or principal motive, so long as it tween MBG and Killbrook had reached a

was a substantial motivating factor in the standstill by August 2014.”60 We disagree

1 defendant’s decision to participate in the with that characterization of the evidence

attempted murder and/or the assault with at trial. Though there was evidence that

a deadly weapon.”58 Howard does not claim the intensity of the rivalry may have decreased by the time of the shooting, there

here that it erred in doing so.

was evidence also to suggest that it had

[23] Moreover, the evidence permitted not subsided completely. This alone distinthe jury to find that Howard committed guishes this case from Thai, in which there

the August 2014 shooting, at least in part, was “no evidence from which the jury

to further his membership in MBG. How- could conclude that Thai’s motive for [the

ard’s conflict with Samuel stemmed entire- violent crime] was [anything] other than

ly from MBG’s rivalry with Killbrook. The , purely mercenary, >i61 As Melendez testifight in 2011 - when Samuel broke How- fled, there was “tension between the two

ard’s jaw - was part of the ongoing conflict sides” at the time of the shooting.62 A

between the two gangs. Indeed, witnesses rational juror could have weighed the extestified that Samuel broke Howard’s jaw tensive evidence about the rivalry - ineludin order to increase his (Samuel’s) own ing testimony that MBG and Killbrook had

status with Killbrook. Appearing to recog- a “hostile” or tense relationship at the time

nize this, Howard repeatedly expressed a °f the shooting - and concluded that Howgeneral desire to retaliate against Kill- ard’s shooting was in furtherance of the

brook for that fight. And when Howard got ongoing MBG/Killbrook feud and of his

around to committing the shooting in 2014, standing in the gang even if he had also a

he did it with another MBG member - personal motive,

Nor was the government required to

consistent with MBG practices - on Kill

prove that the shooting was “explicitly or

brook territory.

• committing an act of violence does not

preclude his conviction under § 1959 as

long as he likewise was motivated by a

desire to increase or maintain his position

in the RICO enterprise.57'

■

cided Santiago-Ortiz by nonprecedential sum

mary order, " '[djenying summary orders

precedential effect does not mean that the

court considers itself free to rule differently in

similar cases.' ” United States v. Irving, 554

F.3d 64, 78 (2d Cir. 2009) (citations omitted).

57. See Santiago-Ortiz, 797 F. App'x at 36-37.

59. 29 F.3d 785 (2d Cir. 1994).

60. SPA-91 (emphasis in original),

29 F.3d at 818.

62. A455.

58. A580.

103

U.S. V. WHITE

Cite as 7 F.4th 90 (2nd Cir. 2021)

implicitly authorized by the gang’s leaders,” that Howard had a “noteworthy” position in MBG, that Howard “had any interest in becoming a leader ... in the

gang,” or that Howard’s status in fact was

enhanced by the shooting.63 The government was required only to adduce evidence

from which the jury was entitled to con

clude that a desire on Howard’s part to

maintain or increase his status or membership in the gang was among his motives.

There was ample evidence to support such

a conclusion. Among other things, Howard

openly ^discussed his desire to retaliate

against members of Killbrook and to “put

in work” - i.e., “[pjromote violence [and]

shootings” - for MBG, which could have

increased his status in the gang.64

[24] Finally, the district court’s reli

ance on the equipoise rule derived from

United States v. Glenn65 was misplaced.

Citing Glenn, the district court wrote that

it was obliged to “conclude that the evidence was insufficient for a reasonable juror to conclude that Howard committed

the Shooting in order to maintain or increase his position in MBG” because it

i( t

gave nearly equal circumstantial support

. to competing explanations.’ „66 But the

equipoise rule “is of ‘no matter to sufficiency analysis because it is the task of the

jury, not the court, to choose among competing inferences.’ ”67 The rule applies

“only where evidence ‘is nonexistent or so

meager’ as to preclude the inferences nec63.

SPA-91-94.

64.

A470, A481-82.

65.

312 F.3d 58 (2d Cir. 2002).

66.

SPA-96.

essary to a finding favorable to the goverriment.”68 For the reasons described above,

that is not the case here. Accordingly, we

hold that the evidence was sufficient to

sustain Howard’s conviction on Count Six

and that the jury’s verdict with respect to

this count should stand,

Count Twelve - Firearm In Fur

therance of Crime of Violence

The district court vacated also the conyiction on Count Twelve, which charged

Howard with using a firearm during and in

relation to, or in furtherance of, the MBG

racketeering conspiracy and VICAR

counts in violation of 18 U.S.C. § 924(c).

Because the district court erred in entering a judgment of acquittal with respect to

Count Six, it erred also when it entered its

judgment of acquittal on Count Twelve.

Section 924(c) proscribes the use or pos- ,

session of a firearm “during and in relation

to” or “in furtherance of’ “any crime of

violence.”69 The statute defines “crime of

violence” in two subparts known as the

“elements clause” and the “residual

clause, >170 The elements clause provides

that a crime of violence is “an offense that

is'a felony” and “has as an element the

use, attempted use, or threatened use of

physical force against the person or property of another, »71 In United States v.

Davis, the Supreme Court struck down the

residual clause as . unconstitutionally

vague.72

69. 18 U.S.C. § 924(c)(1)(A); see also Smith v.

United States, 508 U.S. 223, 237, 113 S.Ct.

2050, 124 L.Ed.2d 138 (1993).

70.

67. Aquart, 912 F.3d at 44 (quoting United

States v. MacPherson, 424 F.3d 183, 190 (2d

Cir. 2005)).

United States v. Davis, —: U.S. ------, 139

S. Ct. 2319, 2324, 204 L.Ed.2d 757 (2019).

71.

Id.

72. Id. at 2336.

68. Id. at 44-45 (quoting United States v. Jiau,

734 F.3d 147, 152 (2d Cir. 2013)).

7 FEDERAL REPORTER, 4th SERIES

104

The superseding indictment alleged that

the predicate crimes of violence for Count

Twelve were both Count One (the RICO

conspiracy count) and Count Six (the VIC

AR count).73 After vacating Count Six, the

district court vacated Count Twelve be

cause it found that Count Twelve now

“restfed] solely on [Howard’s] conviction

for Count One” and that the evidence at

trial was insufficient to establish that How

ard used a firearm in furtherance of the

MBG racketeering conspiracy charged in

Count One.74

[25] In light of Davis, the government

does not here contend that Count One is a

valid predicate crime of violence to sustain

a conviction under 18 U.S.C. § 924(c). But,

post-Davis, the VICAR offense in Count

Six remains a valid predicate crime of

violence as defined under the elements

clause. It is premised on the New York

offense of assault in. the second degree,

which categorically “has as an element the

use, attempted use, or threatened use of

physical force against the person or property of another.”75 Accordingly, in view of

our holding today that the evidence was

sufficient to sustain the conviction on

73.

A18.

74.

SPA-97-98.

75. 18 U.S.C. § 924(c)(3)(A); N.Y. Penal L.

§ 120.05(2); see also United States v. Tabb, 949

F.3d 81, 84-85 (2d Cir. 2020), cert, denied, No.

20-579, —- U.S. ------, 141 S.Ct. 2793, .—

L.Ed.2d------(June 21, 2021) (§ 120.05(2) is a

crime of violence under force clause of

U.S.S.G. § 4B1.2(a)); Singh v. Barr, 939 F.3d

457, 462-64 (2d Cir. 2019) (§ 120.05(2) is a

crime of violence under "force clause” in 18

U.S.C. § 16(a)); United States v. Walker, 442

F.3d 787, 788 (2d Cir. 2006) (§ 120.05(2) is a

violent felony under the force clause of 18

U.S.C. § 924(e)(2)(B)(i)).

76. Howard claimed in his Rule 29 motion

that the government had failed to adduce

evidence that he "had a position" in MBG,

thus perhaps suggesting that this too was a

Count Six, the conviction on Count Twelve

also should stand.

We turn to the proper disposition of

these appeals.

The partial grant of Howard’s Rule 29

motion resulted in the entry of a judgment

of conviction that' reflected a conviction

only on Count One. In view of our conclu

sion that the grant of the Rule 29 motion

was erroneous, Howard should have been

sentenced on all three counts of conviction

and judgment entered accordingly.76 As it

is not clear that the district court would

have imposed the same sentence for the

convictions on all three counts as it did on

Count One only, resentencing is neces

sary.77 Consequently, the judgment en

tered on June 11, 2020 must be vacated.

CONCLUSION

Based on the foregoing, the district

court’s order of November 4, 2019, insofar

as it set aside the jury verdict finding

Howard guilty on the VICAR and firearm

counts, was erroneous. We therefore REbasis for setting aside the VICAR conviction.

Def. Post-Trial Mem. at 28, United States v.

Howard, No.l7-cr-611 (S.D.N.Y. May 13,

2019), EOF No. 486. The district court noted,

however, that there was evidence that How

ard had been a member of MBG for more

than a decade. SPA-93. Howard neither dis

putes that conclusion nor presses on appeal

any contention that he lacked a position in

the gang. Accordingly, there1 is no remaining

issue for consideration here or below with

respect to the Rule 29 motion.

77. See United States v. Kirsch, 903 F.3d 213,

233 (2d Cir. 2018) (remanding for resentenc

ing after vacating judgment of conviction

”[i]n order 'to .give the district court an op

portunity to reevaluate the sentence[] in this

changed light' " (quoting United States v. Pe

trov, 747 F.2d 824, 832 (2d Cir. 1984) (altera

tion in original))).

U.S. v. REED

Cite as 7 F.4th 105 (2nd Cir. 2021)

VERSE so much of that order as did so

and VACATE the judgment of conviction

entered on June 11, 2020, which did not

reflect the convictions on those two. counts,

and REMAND. The district court is in

structed on remand to reinstate the entire

jury verdict, to resentence Howard in light

of the entire jury verdict, and to enter a

new judgment of conviction.

YA.

(O I KEY NUMBER SYSTEM >

S!>

105

Court for the Western District of New

York, Richard J. Arcara, Senior District

Judge, denied motion, and defendant ap

pealed.

Holdings: As a matter of first impression,

the Court of Appeals, Bianco, Circuit

Judge, held that defendant was eligible for

reduced sentence, under First Step, on

conviction for conspiracy for which one of

objects, involved possession with intent to

distribute and distribution of crack co

caine.

Vacated and remanded.

Lynch, Senior Circuit Judge, concurred in

judgment, with opinion.

UNITED STATES of America,

Appellee,

James REED, aka Fats, Byron Cobb,

aka Cobb, Theodore Huffman, Jamar

Paul, aka Crook, Christopher Huff,

Sheltrice Rhodes, Curtis Moss, Norma

Thompson, Defendants,

Martell Jordan, aka Telly,

Defendant-Appellant.

No. 19-3620 cr

August Term 2020

United States Court of Appeals,

Second Circuit.

Argued: March 12, 2021

Decided: August 4, 2021

Background: Defendant serving sentence

of 254 months for conspiracy to possess

with intent to distribute, and to distribute,

50 grams or more of crack cocaine and 5

kilograms or more of powder cocaine, filed

motion to reduce sentence under First

Step Act, which made retroactive the

amendments to the Fair Sentencing Act

that increased the quantities of crack co

caine necessary to trigger mandatory mini

mum penalties. The United States District

1. Criminal Law @=1139

An appellate court reviews, questions

of statutory interpretation. de novo.

2. Sentencing and Punishment @=2262

A sentence arising from a multi-object

conspiracy conviction involving a crack co

caine object is a “covered offense” eligible

for a sentencing reduction, under the First .

Step Act, which made retroactive the'

amendments to the Fair Sentencing Act

that increased the quantities of crack co

caine necessary to trigger mandatory mini

mum penalties, even when the other ob

jects of the conspiracy (involving different

controlled substances) triggered statutory

penalties that were not modified such that

the applicable minimum and maximum

penalties for the conspiracy offense remain

unchanged. Comprehensive Drug Abuse

Prevention and Control Act of 1970 § 401,

21 U.S;C.A. §§ 841 (b)(1 )(A)(iii), (B)(iii).

See publication Words and Phrases

for other judicial constructions and

definitions.

3. Sentencing and Punishment @=2262

Defendant was eligible for reduction

in sentence of 254 months on conviction for

conspiracy to possess with intent to dis-

APPENDIX

;

580

414 FEDERAL SUPPLEMENT, 3d SERIES

promulgate a rule that the plaintiff does motions. The Clerk of Court is respectfully

not endorse. Instead, under the APA, directed thereafter to close. these cases,

the plaintiffs claim is that the agency

SO ORDERED.

has breached the plaintiffs (and the

public’s) entitlement to non-arbitrary de

Jvi\_______

cision making and/or their right to par

(o i KEY NUMBER SYSTEM >

ticipate in the rulemaking process when

the agency undertook to promulgate the

rule. Consequently, to provide the relief '

that any APA plaintiff is entitled to re

ceive for establishing that an agency’s

UNITED STATES of America,

rule is procedurally invalid, the rule

must be invalidated, so as to give inter

ested parties (the plaintiff, the agency,

Christopher HOWARD, a/k/a

and the public) a meaningful opportunity

“JuJu,” Defendant.

to try again.

17 Cr. 611-8 (AT)

Make the Rd. N.Y. v. McAleenan, No. 19

Civ. 2369 (KBJ), 405 F.Supp.3d 1, 72, 2019

WL 4738070, at *49 (D.D.C. Sept. 27,

2019). This reasoning is compelling. It ap

plies with even greater force to a finding

of invalidity under the APA like that here,

made on summary judgment.

Accordingly, as a remedy, the Court va

cates the 2019 Rule in its entirety, pursu

ant to APA § 706(2).

The Conscience Provisions recognize

and protect undeniably important rights.

The Court’s decision today leaves HHS at

liberty to consider a'nd promulgate rules

governing these provisions. In the future,

however, the agency must do so within the

confines of the APA and the Constitution.

CONCLUSION.

United States District Court,

S.D. New York.

Signed 11/04/2019

Background: Defendant filed post-verdict

motion for judgment of acquittal, relating

to his convictions for racketeering conspir

acy, committing violent crime in aid of

racketeering conspiracy, and possessing,

brandishing, or discharging a firearm during and in relation to a crime of violence.,

Holdings: The District Court, Analisa

Torres, J., held that:

(1) evidence established that criminal

gang, of which defendant was a mem

ber, conducted its affairs through a

pattern of racketeering activity;

(2) evidence established defendant’s agree

ment to participate in the affairs of the

enterprise; but

For the foregoing reasons, the Court

grants plaintiffs’ motions for summary

judgment; denies HHS’s motions both to

dismiss and for summary judgment; and

denies as moot plaintiffs’ motion for pre

liminary relief. The Court accordingly va

cates HHS’s 2019 Rule in its entirety.

(3) evidence presented on charge of com

mitting violent crime in aid of racke

teering conspiracy did not establish

defendant’s purpose of maintaining or

increasing his position in the enter

prise; and

A separate order will issue shortly terminating these and all other outstanding

(4) evidence presented on firearm charge

did not establish that the shooting in-

581

U.S. v. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

volved use of the firearm in relation to

racketeering conspiracy for which

predicate acts included multiple acts

involving murder.

Motion granted in part and denied in part.

1. Criminal Law @=753.2(6)

A court must grant a motion for judg

ment of acquittal if there is no evidence

upon which a reasonable mind might fairly

conclude guilt beyond a reasonable doubt.

Fed. R. Crim. P. 29(a).

2. Criminal Law ©=753.2(3.1, 8)

The ultimate question on a motion for

judgment of acquittal is not whether the

court believes the evidence adduced at tri

al established the defendant’s guilt, but

whether any rational trier of fact could so

find, and thus, a defendant making an

insufficiency claim bears a very heavy bur

den. Fed. R. Crim. P. 29(a).

3. Criminal Law ©=753.2(8)

. In considering the sufficiency of the

evidence, on a motion for judgment of

acquittal, the court must view all of the

evidence in the light most favorable to the

government, crediting every inference that

could have been drawn in the govern

ment’s favor. Fed. R. Crim. P. 29(a).

4. Criminal Law ©=753.2(8)

On a motion for judgment of acquittal,

a court must analyze the pieces of evidence

not separately, in isolation, but together, in

conjunction with one another. Fed. R.

Crim. P. 29(a).

5. Conspiracy ©=28(3)

To sustain a conviction under the

Racketeer Influenced and Corrupt Organi

zations Act (RICO) conspiracy provision,

the Government must prove that the defendant agreed with others: (1) to conduct

the affairs of an enterprise (2) through a

pattern of racketeering

U.S.C.A. § 1962(c, d), ■

activity.

6. Racketeer Influenced and Corrupt

Organizations ©=25

Predicate acts form a pattern of rack

eteering activity, as element for a convic

tion under the Racketeer Influenced and

Corrupt Organizations Act (RICO), only if

they have the same or similar purposes,

results, participants, victims, or methods of

commission, or otherwise are interrelated

by distinguishing characteristics and are

18 U.S.C.A.

not isolated events.

§§ 1961(5), 1962(c).

7. Racketeer Influenced and Corrupt

Organizations @=28, 49

To constitute a pattern of racketeer

ing activity, as element for a conviction

under the Racketeer Influenced and Cor

rupt Organizations Act (RICO), the predi

cate acts must be related , to each other,

i.e., horizontal relatedness, and they must

be related to the enterprise, i.e., vertical

18 U.S.C.A. §§ 1961(5),

relatedness,

1962(c).

8. Racketeer Influenced and Corrupt

Organizations @=28

One way to show that the predicate

acts are horizontally related to each other,

for purposes of the pattern of racketeering

activity element for a conviction under the

Racketeer Influenced and Corrupt Organizations Act (RICO), is to show that each

predicate act is related to the RICO enterprise, by linking each predicate act to the

enterprise, although the same or similar

proof may also establish vertical relatedness. lg U.S.C.A. §§ 1961(5), 1962(c).

9. Conspiracy ©=28(3)

To be found guilty of Racketeer Influenced and Corrupt Organizations Act

(RICO) conspiracy, a defendant need only

know of, and agree to, the general criminal

582

414 FEDERAL SUPPLEMENT, 3d SERIES

objective of a jointly undertaken scheme,

18 U.S.C.A. § 1962(c, d).

10. Conspiracy ®=28(3)

Neither overt acts, nor specific predi

cate acts that the defendant agreed per

sonally to commit, need be proved for a

Racketeer Influenced and Corrupt Organi

zations Act (RICO) conspiracy offense. 18

U.S.C.A. § 1962(c, d).

11. Conspiracy ©^lYfS.l)

In determining whether the evidence

is sufficient to support a conviction for a

Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy offense, the

court need inquire only whether an alleged

conspirator knew what the other conspirators were up to or whether the situation

would logically lead an alleged conspirator

to suspect he was part of a larger enter

prise. 18 U.S.C.A. § 1962(c, d).

the enterprise, i.e., a criminal gang, in

prosecution for Racketeer Influenced and

Corrupt Organizations Act (RICO) con

spiracy; evidence of defendant’s member

ship in gang included defendant using the

gang’s specific handshake with other gang

members and defendant’s repeated refer

ences to gang in his social media postings,

including postings showing support for in

carcerated gang members, and evidence

was presented that defendant was well

aware of general contours of conspiracy of

which he was a member, including gang’s

rivalry with another gang in same housing

' project and related acts of violence, and

defendant hanging out in apartment in

which guns were kept, drugs were sold,

and gang members discussed their expl°its. 18 U.S.C.A. § 1962(c, d).

14. Racketeer Influenced and Corrupt

Organizations

12. Conspiracy <5=47(3.1)

For a defendant to be convicted of

Evidence established that criminal committing a violent crime in aid of rackegang, of which defendant was a member, teering under the Racketeer Influenced

conducted its affairs through a pattern of and Corrupt Organizations Act (RICO),

racketeering activity, in prosecution for the Government must prove five elements:

Racketeer Influenced and Corrupt Organi- (1) that the organization was a RICO enzations Act (RICO) conspiracy; witnesses terprise; (2) that the enterprise was entestified that the gang was a neighborhood gaged in racketeering activity as defined in

gang that was comprised of people from RICO; (3) that the defendant in question

one area in housing project who engaged had a position in the enterprise; (4) that

in a rivalry with another neighborhood the defendant committed the alleged crime

• gang associated with another area of the of violence; and (5) that defendant’s generhousing project, that defendant’s gang al purpose in so doing was to maintain or

committed multiple acts of violence, includ- increase his position in the enterprise. 18

ing shootings, in connection with the rival- U.S.C.A. § 1959(a).

ry, and that when a member of defendant’s

15. Racketeer Influenced and Corrupt

gang would commit a shooting On behalf of

Organizations <£=49, 95

the gang or its members, the member

To convict a defendant of committing

would often bring other gang members

violent

crime in aid of racketeering un

with him to “be [his] eyes.” 18 U.S.C.A.

der

the

Racketeer

Influenced and Corrupt

§§ 1961(5); 1962(c, d).

Organizations Act (RICO), the Govern

13. Conspiracy <£=47(3.1)

ment need not prove that maintaining or

Evidence established defendant’s increasing his position in the enterprise

agreement to participate in the affairs of was the defendant’s sole or principal mo-

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

tive, and instead, the motive requirement

is satisfied if the jury could properly infer

that the defendant committed his violent

crime because he knew it was expected of

him by reason of his membership in the

enterprise or that he Committed it in fur

therance of that membership. 18 U.S.C.A.

§ 1959(a).

16. Racketeer Influenced and Corrupt

Organizations ©=95

Evidence that defendant was member

of criminal gang, that defendant discussed

with another gang member retaliating

against member of rival gang who had

punched defendant three years earlier

that a member of defendant’s gang assisted defendant in connection with defendant’s shooting of rival gang member, and

that members of defendant’s gang, as part

of rivalry, had shot at members of rival

gang on several occasions but the rivalry

had reached a standstill at time of defendant’s shooting and defendant’s gang had

an interest in maintaining the truce, did

not establish defendant’s purpose of main

taining or increasing his position in the

enterprise, in prosecution for committing

violent crime in aid of racketeering conspiracy, which violent crime was assault

with a dangerous weapon. 18 U.S.C.A.

§§ 2,1959(a)(3).

17. Racketeer Influenced and Corrupt

Organizations ©=49

Determining, in a prosecution for

committing violent crime in aid of racke

teering, whether defendant’s general pur

pose in committing an assault was to

' maintain or increase his position in the en

terprise asks only whether the intended

assault, whatever the association of its vic

tims, was intended to aid the racketeering.

18 U.S.C.A. § 1959(a)(3).

18. Racketeer Influenced and Corrupt

Organizations ©=>49

Even when the victim of a defendant’s

assault was a member of a rival gang, the

583

Government must show that the assault

was intended to aid the defendant’s racketeering, in a prosecution for committing

violent crime in aid of racketeering. 18

U.S.C.A. § 1959(a)(3).

19. Racketeer Influenced and Corrupt

Organizations ©=49

In determining, in a prosecution for

committing violent crime in aid of racke

teering, whether defendant’s general pur

pose in committing a violent crime was to

maintain or increase his position in the

enterprise, the question is not whether the

defendant’s position in the enterprise was

actually advanced “ fact ^ ™lent crime’

but whether his purpose in committing the

crime was to benefit his position. 18

U.S.C.A. § 1959(a).

20. Criminal Law <^552(3)

Where trial evidence gives nearly

equal circumstantial support to competing

explanations, a reasonable jury must nec

essarily entertain a reasonable doubt.

21. Weapons ©=194(2)

A Racketeer Influenced and Corrupt '

Organizations Act (RICO) conspiracy can

be a crime of violence, as predicate for

possessing, brandishing, or discharging a

firearm during and in relation to crime of

violence, if the underlying RICO offense is

based on crirhes of violence. 18 U.S.C.A.

§§ 924(c), 1962(c, d).

22. Weapons ’©=’192

For possession of a firearm to be “in

relation to” a crime of violence, for pur

poses of possessing a firearm during and

in relation to crime of violence, at a mini

mum, the firearm must have some purpose

or effect with respect to the crime of vio

lence. 18 U.S.C.A. § 924(c).

23. Weapons ©=192,194(2)

Evidence that defendant showed his

gun to a member of defendant’s criminal

584

414 FEDERAL SUPPLEMENT, 3d SERIES

gang in a social setting, and that defendant

used the gun in a shooting of a rival gang

member for which defendant’s motive was

entirely personal and, if anything, contrary

to his gang’s goal of maintaining a. truce

with rival gang, did not' establish that the

shooting involved use of the firearm in

relation to a Racketeer Influenced and

Corrupt Organizations Act (RICO) con

spiracy for which the RICO predicate acts

included multiple acts involving murder, as

would provide basis for the RICO conspir

acy offense serving as a predicate crime of

violence, in prosecution for possessing,

brandishing, or discharging a firearm dur

ing and in relation to a crime of violence.

18 U.S.C.A. §§ 924(c), 1962(c, d).

West Codenotes

Recognized as Unconstitutional

18 U.S.C.A. § 924(c)(3)(B)

K. Bertan, Esq, Bronx, NY, Kenneth Jamal Montgomery, Brooklyn, NY, for Defendant.

OPINION AND ORDER

ANALISA TORRES, United States

District Judge

On March 6, 2019, a jury found Defen

dant Christopher Howard guilty on one

count of racketeering conspiracy; one ■

count of committing a violent crime in aid

of a racketeering conspiracy, specifically,

assault with a dangerous weapon; and one

count of possessing, brandishing, or dis

charging a firearm during and in relation

to \a crime of violence. Howard now moves

for a post-verdict judgment of acquittal

pursuant to Federal Rule of Criminal Pro

cedure 29. For the reasons stated below,

Howard’s motion is GRANTED in part

and DENIED in part.

BACKGROUND

Alexandra Rothman, Drew Turner John

son Skinner, Jordan Lancaster Estes,

Maurene Ryan Comey, United States At

torney’s Office, SDNY, Christopher Jor

dan Clore, Gina Marie Castellano, U.S.

Attorney’s Office, SDNY (St Andw’s), Jac

queline Christine Kelly, Usao - SDNY,

New York, NY, for United States of America.

Michael J. Gilbert, Amanda Nicole Tuminelli, Christine Isaacs, Deborah Olufolakemi Martin, Paul Curran Kingsbery,

Steven Pellechi, Tanner Kroeger, Dechert,

LLP (NYC), Camille Marie Abate, Nicholas Goodman & Associates, PLLC, Kristen Marie Santillo, Gelber & Santillo

PLLC, John Anthony Diaz Diaz & Moskowitz PLLC Richard Bruce Lind, Richard Lind Attorney at Law, New York, NY,

David Arthur Ruhnke, Jean Desales Barrett, Ruhnke .& Barrett, Montclair, NJ,

David Keith Bertan, Law Office of David

Procedural History

On July 16, 2018, Howard and nine oth

er defendants were charged in a 12-count

Superseding Indictment, which detailed

the criminal activities of two gangs, known

as “MBG” and the ‘YGz,” in and around

the Bronx, New York. ECF No. 169. How

ard, for his part, was charged with three

counts in the Superseding Indictment,

Count One alleged that, from approximately 2007 to October 2017, Howard participated in a racketeering conspiracy in relation to his membership in the gang

“MBG,” in violation of 18 U.S.C. § 1962(d).

Id. HIT 1-6. Count Six charged Howard

with committing a violent crime in aid of

racketeering (“VICAR”), namely, a shooting on August 17, 2014, in violation of 18

U.S.C. § 1959(a)(3), (a)(5), and 18 U.S.C.

§ 2. Id. Hi! 22-23. Count Twelve charged

Howard with using and carrying a firearm,

U.S. v. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

585

which was brandished and discharged, in

connection with the racketeering conspiracy charged in Count One and the VICAR

charged in Count Six, in violation of 18

U.S.C. § 924(c)(1)(A)(i), (ii), (iii), and 18

U.S.C. § 2. Id. IF 29.

II. Evidence Presented at Trial

a. The MBG Racketeering Conspiracy

On March 6, 2019, after roughly two

days of deliberation,1 the jury convicted

Howard on all three counts with which he

was charged. Tr. 724:6-728:22, Mar. 6,

2019. With respect to Count Six, the VIC

AR, the jury determined that Howard

committed assault with a dangerous weap

on. Id. 725:11-726:4. With respect to Count

Twelve, the firearms offense, the jury de

termined that Howard was guilty in rela

tion to both the MBG racketeering con

spiracy charged in Count One and the

VICAR charged in Count Six. Id. 726:5727:2.

Mill Brook. Tr. 195:4-6, Feb. 26, 2019; id.

198:6-8; Tr. 362:22-24, Feb. 27, 2019; id.

364:6-8. MBG, which stands for “Mill

Brook Gangstas” or “Money Bitches

Guns,” is a “neighborhood gang” based in

up-the-block Mill Brook. Tr. 194:23-24,

Feb. 26, 2019; id. 195:4-10; id. 198:6-8; Tr.

363:11-13, Feb. 27, 2019; id. 363:18-25.

Most of MBG’s members were raised in

up-the-block Mill Brook. Tr. 363:20-23,

Feb. 27, 2019. Colon and Seda testified

that MBG members had their own way of

“peacing,” i.e., greeting, each other, and

that MBG members would only “peace”

other members of the gang. Tr. 212:1-15,

Feb. 26, 2019; Tr. 377:3-8, Feb. 27, 2019;

id. 379:4-7. Colon explained that MBG

members would “peace” each other by us

ing a specific handshake, though he could

i. The MBG Enterprise

As noted above, this case involves a

gang known as MBG,2 which operated in

. and around the Mill Brook Houses (“Mill

Trial commenced on February 25, 2019 Brook”) in the Bronx.

before the Honorable Robert W. Sweet.

Descriptions of MBG, as well as How

Over the course of four days, the Govern

ard’s participation in the gang, were pre

ment presented testimony from 15 wit

dominantly provided by two cooperating

nesses, including cooperating witnesses,

witnesses: Andy Seda and Joey Colon.

eyewitnesses, and a ballistics expert. The

Seda and Colon both testified that they

Government rested its case on February

grew up in Mill Brook and had been mem

28, 2019, at which time Howard moved for

bers of MBG since the gang was created in

a judgment of acquittal on each count pur

about 2003 or 2004. Tr. 194:1^4, Feb. 26,

suant to Rule 29. Tr. 548:2-8, Feb. 28,

2019; id. 195:11-12; Tr. 360:15-22, Feb. 27,

2019. Judge Sweet denied the motion. Id.

2019; id. 363:14-17. They explained that

548:15. Howard presented no witnesses

Mill Brook consists of ten buildings; three

and rested his case that day. Id. 548:17-22;

, buildings—buildings eight, nine, and ten—

id. 550:9-13.

constitute what is known as “up the block”

On May 5, 2019, Howard filed the instant motion for a judgment of acquittal

pursuant to Rule 29. Def. Mot. J. Acquittal, ECF No. 479.

1. The jury deliberated from approximately

12:45 p m. to 5 p m. on March 1, 2019, Tr.

682:23-24, Mar. 1, 2019; 9:30 a.m. to 3:30

p.m. on March 4, 2019, Tr. 698:1-706:15,

Mar. 4, 2019; and 9:30 a.m. to 12' p.m. on

March 6, 2019, Tr. 724:4-5, Mar. 6, 2019.

2. Because Howard was not charged with par

ticipating in the YGz gang, descriptions of

that gang are only provided insofar as they

are relevant to the MBG racketeering conspir

acy charge.

586

414 FEDERAL SUPPLEMENT, 3d SERIES

not recall at trial what the handshake was.

Tr. 211:21-212:1, Feb. 26, 2019. Colon also

testified that MBG members, who were

typically also members of the YGz gang,

would greet each other using the YGz

phrase, “What’s gunning?”3 Id. 212:2-15;

id. 225:13-14.

According to Seda and Colon, MBG

members could earn respect and increase

their status in the gang by committing

shootings. Id. 213:3-12; 216; id. 259:14-21;

Tr. 388:3—4, Feb. 27, 2019. Colon testified

that he became one of MBG’s leaders by

committing several shootings. Tr. 212:22213:2, Feb. 26, 2019; id. 281:5-6. It was

common for MBG members to commit acts

of violence together because it was safer to

have others around to serve as a lookout

or to grab a gun if necessary. Id. 259:1113; Tr. 407:21-408:8, Feb..27, 2019. MBG

members would likewise often talk to one

another about shootings they committed in

order to ensure that no one would be

caught off guard by an act of retaliation.

Tr. 248:22-249:9, Feb. 26, 2019; Tr. 393:1324, Feb. 27, 2019.

Beyond the shootings, some MBG mem

bers—including Seda and Colon—sold

drugs, namely, crack cocaine and marijua

na.4 Tr. 269:1-8, Feb. 26, 2019; Tr. 431:415, Feb. 27, 2019. Colon, whose drug deal

ing earned him the nickname “Joey

Crack,” started selling crack cocaine in

2007. Tr. 211:5-10, Feb. 26, 2019; id.

267:21-24. Colon sold drugs every day

from 2013 to 2015. Tr. 317:22-25, Feb. 27,

2019. He bought his drugs from someone

who lived in Mill Brook and would sell his

drugs in Mill Brook and its outskirts. Id.

317:5-17; id. 318:3-11. Seda, for his part,

began selling crack cocaine at the end of

3. “YGz” stands for “Young Gunnaz.” Tr.

195:18-19, Feb. 26, 2017; Tr. 361:16-17, Feb.

27, 2019.

4. Seda knew these other MBG members were

dealing drugs because he saw them dealing

2013 to make money after his father was

arrested. Id. 431:16-24. Seda and Colon

both testified that MBG members Anthony

Bush, Demetrius Wingo, James Robinson,

David Oquendo, and Christian Perez were

also involved in drug dealing at times. Tr.

269:1-6, Feb. 26, 2019; Tr. 431:4-15, Feb.

27, 2019. On one occasion, MBG member

James Robinson used his drug money to

buy a gun for other MBG members to use.

Tr. 435:24-436:7, Feb. 27, 2019.

Some MBG members would use the

apartment of James Robinson and Laquan

Robinson (the “Robinson Apartment”), lo

cated in up-the-block Mill Brook, as a

stash house. Tr. 269:11-21, Feb. 26, 2019;

Tr. 433:1-17, Feb.-27, 2019. For example,'

James Robinson and Bush kept thendrugs in that apartment. Tr. 434:2-4, Feb:

27, 2019. Drugs were also cooked in and

sold from there. Id. 433:17-24. In addition

to drugs, James Robinson stored guns in

his apartment. Id. 434:5-8. Any gun that

was kept in the Robinson Apartment was '

considered an “MBG gun”—all of the

MBG members could use it. Id. 434:9-13.

Many of the MBG members would also use

this apartment as a place to hang out with

one another. Id. 434:21-24. MBG members

would tell each other about things that

happened at the Robinson Apartment, in

cluding what drug dealing was going on

there and what guns were being held there

at a given time. Id. 435:2-10.

MBG’s principal rival was a gang called

Killbrook. Id. 366:13-14. Killbrook was

also a neighborhood gang, whose members

were generally from buildings 1, 2, 3, and 4

in Mill Brook—collectively referred to as

“down-the-block” Mill Brook. Tr. 213:13and discussed it with them. Tr. 431:10-13,

Feb. 27, 2019. Colon knew these individuals

were selling drugs because they had the same

customers. Tr. 269:5-8, Feb. 26, 2019.

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

22, Feb. 26, 2019; Tr. 366:15-24, Feb. 27,

2019. Killbrook was created sometime in

the fall of 2007, shortly after Colon shot an

individual named Gio, who was friendly

with people from down-the-block Mill

Brook. Tr. 370:6-371:4, Feb. 27, 2019. By

October 2010, the rivalry had subsided. Tr.

226:5-7, Feb. 26, 2019. In March 2011,

however, Colon went to a party down the

block with MBG member Wingo and their

friend Kash, who was not from Mill Brook.

Id. 226:8-227;15. Sometime before this

party, Kash had gotten in a fight with one

Killbrook member named Gary Davis, and

Kash’s arrival to the party was conse

quently ill received. Id. 226:14-18. When

Colon and his friends tried to leave the

party, Davis started shooting at them. Id.

226:19-24. Colon, who had a gun on him,

tried to fire back at Davis, but the safety

was on. Id. 227:7-13. Wingo grabbed the

gun from Colon, took the safety off, and

shot twice at Davis. Id. 227:13-15. Shortly

after this shooting, Colon tried to “squash”

the rivalry because shootings led to police

presence in the area, which made it harder

for him to sell drugs. Id. 229:9-18. Specifically, Colon met with Gary Davis to discuss setting up a one-on-one fight between Wingo and Davis to resolve things,

Id. 230:1-4. While the two were talking,

however, Kash, Seda, and another MBG

member named Jarod Slater appeared,

leading Gary Davis to believe that Colon

had set him up. Id. 229:23-230:19. In April

2011, Colon was out with his girlfriend

when he encountered Gary Davis and his

brother Kareem Davis, who was also a

Killbrook member. Id. 239:24-242:10. Gary

and Kareem Davis shot in Colon’s direction but instead hit Colon’s girlfriend,

who later died from her injuries. Id.

242:11-243:15. After this series of events in

the spring of 2011, tension between the

Melendez was incarcerated for possession

of a controlled substance from 2005 to 2009,

and lived in South Carolina from 2009 to

587

gangs escalated and more shootings at the ,

hands of both MBG and Killbrook members ensued. Id. 230:20-231:1; id. 248:3-19;

Tr. 371:9-25, Feb. 27, 2019; id. 375:7-13.

Colon explained that, during the periods of

time that MBG and Killbrook were at war,

any member of Killbrook was a “fair target” for MBG members to shoot. Id

328:3-19.

Background information about MBG and

Killbrook was also provided by an individ

ual named Jose Rodriguez, who testified

pursuant to an immunity order. Tr. 492:913, Feb. 28, 2019. Rodriguez was from

down-the-block Mill Brook and joined Killbrook in about 2009. Id. 493:20—494:18. He

testified that MBG, “which was right up

the block,” was one of Killbrook’s rivals.

Id. 494:20-24. According to Rodriguez, the

relationship between Killlbrook and MBG

was initially just a “petty rivalry” with

“little fights here and there,” but things

later escalated to involve more serious acts

of violence, such as shootings in which

“people almost lost their life.” Id. 495:1824. Rodriguez explained that he had been a

victim 0f violent acts committed by MBG

members and had also committed acts of

violence against them. Id. 495:25-496:4.

Raynaldo Melendez similarly testified,

pursuant to an immunity order, about the

gangs in Mill Brook. Tr. 146:8-9, Feb. 26,

2019. Melendez grew up in down-the-block

Mill Brook. Id. 147:15-20. He lived there

for most of his life, except between 2005

and 2013 and after October 2014.5 Id.

147:21-148:7. According to Melendez, the

relationship between up-the-block and

down-the-block Mill Brook was generally

“a little bit hostile,” meaning that there

had previously been conflicts, shootings,

and other- incidents of that nature. Id.

2013. Tr. 147:23-148:8, Feb. 26, 2019. He

had been incarcerated since October 2014. Id.

148:11-18.

588

414 FEDERAL SUPPLEMENT, 3d SERIES

151:4-22. He testified, however, that by mothers lived there, so Howard would visit

August 2014, the relationship between them on the weekends. Id. 468:7-25. Seda

MBG and Killbrook ' was “cordial,” and could not recall whether he ever saw Howthere had not been any shootings for the ard at Mill Brook during the week. Id.

preceding year, though there was still '467:24-468:2.

some tension between the two sides. Id

During cross examination, Seda stated

151:24-152:9. Melendez believed that the that he never saw Howard discharge a

violence had subsided partly because some gun, cut anyone, beat anyone up, or comof the people who were responsible for mit any other act 0f violence. Tr. 464:5-11,

shootings in the past had been arrested Feb_ 27, 2019; id. 465:2-5. Seda also admitand partly because other people in the ted that Howard did not participate in a

neighborhood were making an effort to single one of the 30 crimes that Seda

keep the relationship “peaceful” in order pleaded to in his cooperation agreement,

to preserve their ability to sell drugs. Id. Id. 460:11-15. According to Seda, for How

152:10-23.

ard to be a member of MBG, it was not

ii. Howard’s Involvement in MBG

required that he commit acts of violence or

As for Howard’s participation in the otherwise participate in crimes; there were

gang, Seda and Colon testified that How a lot of MBG members that did not do

ard was a member of MBG. Id. 195:22- anything. Id. 464:15-20. Seda explained

196:7; Tr. 361:21-362:9, Feb. 27, 2019; id. that> wMe these PeoPle did not necessarily

376:6-8. They explained that they would engage in acts of violence, they were still

“peace him MBG,” Tr. 377:9-12, Feb. 27, “real members” of MBG. Id. 464:21^465:1.

2019; Tr. 212:18-19, Feb. 26, 2019, and that

Colon and Seda also testified that they

Howard would hang out in the Robinson would take trips to Atlantic City with their

Apartment. Tr. 269:24-270:2, Feb. 26, friends, including Howard. Colon testified

2019; Tr. 434:21-24, Feb. 27, 2019. In addi- that he, Howard, Jose, James Robinson,

tion, Howard spoke to Seda about commit- Laquan Robinson Seda, and some nonting crimes and shooting people. Tr. 479:4- MBG members were supposed to go to.

11, Feb. 27, 2019, and was sometimes pres- Atlantic City for Colon’s birthday in 2013.

ent when Colon was selling drugs. Tr. Tr. 261:18-262:10 Feb. 26, 2019. The group

270:3-4, Feb. 26, 2019. They both testified took the bus to Howard’s house on Staten

that MBG member Jonathan Jose was one Island first, where they waited for someof Howard’s close friends. Tr. 201:21- one to pick them up to drive them to

202:5, Feb. 26, 2019; id. 202:17-21; Tr. Atlantic City. Id. 262:15-263:6, While at

Howard’s house, they hung out; some of

402:13-20, Feb. 27, 2019.

Seda testified that although . Howard them went to the store. Id. 264:18-265:4.

moved out of Mill Brook to Staten Island The Person who was supposed to drive

in approximately 2010, he did not stop them that day never showed up, so Colon

coming to Mill Brook or hanging out with eventually went back to Mill Brook with

MBG members. Id. 399:24-400:4. Seda fur- James and Laquan Robinson. Id. 262:11ther testified that he personally saw How 16; id. 265:5-10.

ard in up-the-block Mill Brook every week

Seda likewise testified about going to

end after Howard moved to Staten Island. Howard’s house in Staten Island as part of

Id. 400:5-8. During cross examination, the unconsummated trip to Atlantic City in

Seda stated that the reason he saw How- 2013. Seda explained that he, Colon, How

ard at Mill Brook was that his two grand- ard, Bush, Wingo, Devin White, Jose,

•

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

James Robinson, and a few other nonMBG members took a bus to Staten Island. Tr. 400:21-402:22, Feb. 27, 2019.

When they got to Howard’s house, Seda

was smoking and drinking in Howard’s

bedroom. Id. 402:23-403:9. At some point

in the night, Seda watched Howard pull a

.40 caliber gun from a shoebox. Id. 403:1023. After showing Seda, Howard put the

gun bade in the box. Id. 403:24^04:1. Seda

never again saw Howard with the gun. Id.

404:2-4.

Rodriguez likewise identified Howard as

a member of Killbrook’s rival gang. Tr.

495:4-16, Feb. 28, 2019. Rodriguez also

described a time that he robbed Howard in

2009. Id. 499:8-20. According to Rodriguez, he and another Killbrook member

named Quentin Starkes were walking

around the neighborhood looking for rivals—something they did to “get status”—

when they saw Howard entering a store in

up-the-block Mill Brook and decided to

follow him. Id. 499:21-500:3. Once inside

the store, Rodriguez threatened Howard

with a razor and told him to turn over

whatever possessions he had. Id. 499:8500:4. Howard handed over his jacket and

cell phone, among other items. Id. 501:2025. Later, Rodriguez and his fellow gang

members carved “KB” into the back of the

jacket and took a video of the jacket being

lit on fire. Id 502:1-4. According to Rodriguez, they did this for “status” and to let

the entire neighborhood know that Killbrook members had “put in work” on a

rival gang member. Id. 502:5-9. Prior to

this incident, Howard had never attempted

to engage in any violent acts against Rodriguez. Id. 510:5-8.

In addition to the foregoing testimony,

the Government also presented, evidence

from Howard’s Facebook account—specifically, several posts in which Howard references MBG, photographs of Howard with

other MBG gang members, and conversa-

589

tions between Howard and other MBG

members in which they discuss recent

shootings and tension with people from

down-the-block Mill Brook. See GX 400;

GX 401; GX 402; GX 403; GX 404; GX 405;

GX 407; GX 408; GX 410; GX 423; GX 425;

GX 426.

B. Violent Crime in Aid

of Racketeering

At trial, the following evidence was presented regarding the charge that, on Au

gust 17, 2014, Howard committed a shooting in furtherance of his MBG membership

(the “Shooting”).

1. Howard’s Broken Jaw

According to Seda, Howard had prob

lems with one particular person from Killbrook named shadean Samuel, also known

as “Scraps.” Tr. 396:24-397:8, Feb. 27,

2019. Seda explained that Howard had issues ^th Samuel because he had broken

Howard’s jaw in 2011. Id. 397:24-398:2.

Seda was not present for this incident, but

he heard about it after the fact—first,

from others; later, from Howard. Id.

398:9-10. Specifically, Howard told Seda

that he was at a restaurant near Mill

Brook when Samuel and other Killbrook

members walked in. Id. 399:7-9; id. 480:17.

Samuel approached Howard and punched

him in the face. Id. 399:7-9. Seda thought

he recalled Howard saying he was with

other MBG members at the time, though

he could not remember exactly. Id. 398:2125; id. 399:1-2. Howard also told Seda that

he was going to shoot Samuel in response,

Id. 399:10-12. In Seda’s view, this incident

was gang-related insofar as MBG was

“beefing with Killbrook.” Id. 398:17-20.

During cross examination, Seda admitted that he did not help Howard seek

revenge after Samuel broke his jaw. Id.

461:23-25. When asked if the reason he did

not retaliate on Howard’s behalf was that

he did not like Howard very much, Seda

responded that he would not say he did not

590

414 FEDERAL SUPPLEMENT, 3d SERIES

like Howard—Howard was just not in his

circle. Id. 461:23—462:3. Howard’s counsel

asked if this meant his “circle of shooters

and killers,” to which Seda answered in the

affirmative. Id. 462:2-5.

Colon similarly testified that he recalled

a time when he saw Howard with a broken

jaw, and that his understanding was that

Samuel was responsible for the injury. Tr.

231:5-24, Feb. 26, 2019.

Rodriguez also provided testimony relat

ing to the fight between Howard and Sam

uel. Although he had seen Howard around

Mill Brook “a couple times” after the rob

bery in 2009, Rodriguez had no further

interactions with Howard until the two ran

into each other on the Staten Island Ferry

in 2015.6 Tr. 502:10-18, Feb. 28, 2019; id.

511:19-512:20; id. 515:15-18. When Rodri

guez saw Howard on the ferry that day,

Howard approached him “kind of aggressively” and asked Rodriguez if he wanted

to fight because of the time he robbed

Howard. Id. 503:8-12. Rodriguez replied

that fighting would only “spark up energy

... [and] start something up again” between MBG and Killbrook, which Rodriguez did not think they should do. Id.

503:13-17. Howard agreed and, noting that

Rodriguez and Starkes had not really hurt

him during the robbery, told Rodriguez

that he would forget about it. Id. 503:18504:2. Howard then told Rodriguez that his

“main focus down the block” was Samuel.

Id. 503:22-504:3. Rodriguez understood

this to mean that Samuel and Howard

“had an issue,” which was that Samuel had

While Rodriguez testified on direct that it

was in 2014 or 2015, Tr. 502:17-503:1, Feb.

28, 2019, he testified on cross that he was

"certain'' that this conversation took place in

2015. Id. 511:19-512:14. He explained that it

must have been 2015 because that is when he

started working for a State Island-based com

pany, and the only reason he was on the ferry'

that day was to pick up a pay check. Id.

511:19-512:15. The Government •appears to

concede that this conversation occurred in

broken Howard’s jaw. Id. 504:4-11. Rodriguez believed that Samuel broke Howard’s

jaw because, after moving to Mill Brook

from Queens, he was “trying to get in good

with Killbrook, so he put in work on [Howard],” a member of MBG.7 Id. 504:12505:6. Rodriguez believed this to be the

case because, to his knowledge, Samuel

and Howard did not have any interactions

before Samuel moved into Mill Brook and

started associating with Killbrook; thus, he

felt that Mill Brook was the only thing that

Samuel and Howard had in common. Id.

505:7-13. According to Rodriguez, Howard

was not confiding in him during this con

versation, but rather “boasting” that Sam

uel was “the only person [he was] beefing

with ... from Mill Brook.” Id. 513:7-15.

In addition to this testimony, the Government introduced the following evidence

from Howard’s Facebook account regardmg his injury. On April 10, 2011, Howard

sent a message to MBG member Devin

White complaining about his broken jaw.

Tr. 233:6-22, Feb. 26, 2019; GX 407. On

April 12, 2011, Howard sent another message to Devin White complaining about his

jaw and stating, “[N]o he i gotta catch one

of dese niggaz n show dem i aint playing n

i knoo ur situation so u just gotta take care

ur kids.” GX 407. According to Colon,

Howard was telling Devin White that he

wanted to retaliate against someone from

down the block but did not want Devin

White getting in the middle of it because

he had children. Tr. 237:8-18, Feb. 26,

2019. In that same message, Howard

2015. Gov't Mem. Opp. at 9, ECF No. 500

(describing conversation between Rodriguez

and Howard "[sjeveral months after the

Shooting”).

Rodriguez testified that he would "peace

[Samuel] KB” and that Samuel would hang

out with other Killbrook members. Id.

504:12-19.

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

wrote, “[I] havent heard niggaz try to get

niggaz yet n datz brazy cuz when i was out

here looking 4 niggaz niggaz was talking a

gd one but i aint expecting niggaz to do

anythi[n]g.” GX 407. Colon testified that in

this message, Howard was talking about

Colon and his friends possibly retaliating

against Samuel for breaking Howard’s jaw.

Tr. 236:14-237:7, Feb. 26, 2019. On April

22, 2011, Howard sent Devin White a message telling him to “go to kelly santana[ s]

profiled] dat nigga in dat pic is da one who

snuk me,” which Colon testified meant the

person who broke Howard’s jaw. GX 407;

Tr. 238:12-14, Feb. 26, 2019. Howard then

wrote, “I want to murk dat nigga real

shit.” GX 407. Colon understood this to

mean that Howard wanted to kill that

person. Tr. 238:15-17, Feb. 26, 2019. In

another message dated April 23, 2011,

Howard told Devin White that he wanted

to peter roll one of dese niggaz especially

dat birch ass nigga dat suckerpunched

me.” GX 407. Colon explained that “peter

roll” means to kill somebody. Tr. 239:1520, Feb. 26, 2019.

591

The Government likewise introduced

hospital records indicating that Howard

was treated for a broken jaw in April 2011.

GX 800-B.

2. The Shooting

35:5-20. Upon arriving at the scene, Officer Syed saw one person who had been

shot, as well as two other people who were

complaining that they had been shot. Id.

40:16-19. He also observed a large group

of people standing around a nearby deli.

Id. 41:1-8. Officer Syed later identified the

victims as Samuel, Jonathan Perez, and

Aaron Dykes.8 Id. 42:16-25.

NYPD Detective Scott Patterson testifjed that he was notified of a shooting in

Mill Brook on August 17, 2014 and arrived

at the scene around 3:30 a.m. Tr. 1141620, Feb. 26, 2019. In connection with the

investigation that followed, he contacted

certain individuals who had called 911

around the time of the incident. Id. 11010111:1. Although he had no recollection at

trial of calling someone named Nikiena

Perez, Detective Patterson had notes from

^at call and read them as part of his

testimony.9 Id. 113:13-114:5. According to

these notes, Perez reported the following:

“I was, 165 St. Ann’s, smoking a cigarette

... [when] a guy, some dude, came out of

nowhere. I ran. He came from - three er

four shots, braids, red fitted hat, skinny,

possibly Hispanic, tall.” Id. 115:4-8. The

notes further state, “She said that she was

standing in front of her building, and she

saw a male.” Id. 115:8-9.

• New York Police Department (“NYPD”)

Officer Surfraz Syed (“Officer Syed”) testified that, at 3:10 a.m. on August 17, 2014,

he and another officer were patrolling on

138th Street between St. Ann’s Avenue

and Brook Avenue when they received a

report of shots fired at 137th Street and

St. A™’s Avenue. Tr. 30:13-18, Feb. 25,

2019; id. 31:24-32:25; id. 34:15-35:2; id

Perez was called to testify during trial

and provided the following testimony

about the events of August 17, 2014. On

the night of the Shooting, Perez was inside

her apartment at 165 St. Ann’s Avenue

(“Building 165”), on the corner of St. Ann’s

Avenue and 135th Street, listening to music and smoking marijuana with one of her

friends. Id 78:12-80-25; GX 300; GX 306.

8. Hospital records indicated that Dykes was

treated at the hospital for a gunshot wound to

his right upper arm in the early hours of on

August 17, 2014, GX 801 A; that Jonathan

Perez was treated for a suspected gunshot

wound to his right thigh, GX 802A; and that

Samuel was treated for a gunshot wound to.

his left shoulder/arm, GX 803A.

9. Detective Patterson’s notes reflected that he

began returning 911 calls at approximately

4:08 am. Tr. 114:11-15, Feb. 26. 2019.

592

414 FEDERAL SUPPLEMENT, 3d SERIES

Around midnight, she walked her friend and could not recall how he was dressed or

out to St. Ann’s Avenue to put her in a cab anything else about his appearance, other

home. Tr. 81:3-52:22, Feb. 26, 2019. As she than that he was slim and on the tall side,

walked back from St. Ann’s Avenue to her Id. 91:14-92:1. She explained that, al- •

apartment building, Perez saw about four though it was dark outside at the time,

or five men in the courtyard in front of there were light posts near the flagpole, in

Building 165 sitting on benches under- front of her building, and elsewhere in the

neath a flagpole. Id. 84:6-86:7; GX 211; GX area. Id. 93:18-94:24. Perez likewise testi214. She recognized two of the men; Jona- fed that she may have called the police

than Perez and Dykes, from growing up in that night to report the Shooting and that

the neighborhood. Id. 86:8-10; id. 87:2-6; she remembered the police coming to her

id. 87:23-88:1. Upon reaching her building, apartment after the Shooting, though she

Perez stopped outside the entrance to fin- could not recall what exactly she said durish a cigarette, facing the courtyard. Id. ing those conversations. Id. 98:4-11.

88:14-89:7. Two or three minutes later,

During cross examination, Perez was

Perez saw a man coming from the same

asked

about her previous statements to

route she had just taken to St. Ann’s Ave

law

enforcement

regarding the Shooting.

nue. Id. 89:15-25; GX 211; GX 218. The

Perez

testified

that

she “probably” told

man, who was alone, approached the group

police

she

did

not

hear

any shots until she

on the benches but then stopped abruptly

was

already

inside

her

building

taking the

before he reached them, approximately

stairs

her

apartment,

but

she could

four or five feet from the flagpole. Id.

not

remember.

Id.

100:13-24.

Perez

fur

89:15-19; id. 104:18-21; id. 106:2-6. A cou

ple of seconds later, Perez saw the individ ther stated that she did not recall telling

ual raise his hand and heard three to four police that she went into her building when

gunshots. Id. 89:13-20. She then ran into she saw the person raise his hand, but

an apartment on the fourth floor of her ' supposed that was what happened if that

building, where Jonathan Perez’s mom, was what she told police that night. Id.

Milka, lived. Id. 93:6-15. Perez told Milka 101:11-15. As for identification of the

that she thought something bad may have shooter, Perez remembered telling police

happened to her son and that she should that she could not identify the perpetrator

call him to make sure he was okay. Id. but thought that she told police that he

95:8-12. About 10 to 15 minutes after the was Hispanic. Id. 103:23-24. She likewise

Shooting, Perez and Milka went to 137th acknowledged that, a couple of weeks beStreet, where Perez saw ambulances out fore trial, she told prosecutors that the

side of a deli. Id. 95:18-96:25; GX 209. She shooter was “not too tall.” Id. 104:14-17.

stood nearby for about another 15 to 20

Kelly Santana, the mother of Samuel’s

minutes before heading back home; at this children, was also called to testify about

point, nearly an hour had passed since the the Shooting. Id. 124:17-23. Santana testiShooting. Id. 97:17-24. When Perez got fed that she “somewhat” remembered the

back to her apartment that night, she night when Samuel was shot. Id. 127:12smoked some marijuana to calm her ^ 14 Earlier that evening, she, Samuel, and

nerves and help her sleep. Id. 99:1-5.

Dykes had been drinking in a courtyard in

During direct examination, Perez testi- between Building 165 and a building at 530

fied that she did not see the shooter’s face East 137th Street (“Building 530”).10 Id.

10. Santana lived in Budding 165 in down-the-

block Mill Brook from approximately 2005

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

127:12-128:14; id. 129:19-130:10; GX 211.

Around’9 p.m., Santana left Samuel and

Dykes to go home because she was drunk,

Id. 130:11-21. Sometime later, she received

a call from someone telling her that Samuel had been shot and made her way to

137th Street, where she saw Samuel and

Dykes. Id. 130:22-132:20. Samuel was getting into an ambulance and told Santana,

that he had been shot. Id. 132:4-7. Dykes

had been grazed. Id. 132:19-20. Santana

joined Samuel in the ambulance to the

hospital. Id. 132:21-23. On the ride there,

she did not ask him who was responsible

for the Shooting. Id. 132:24-133:1. Santana

explained that she did not want to be

. involved and did not have any interest in

what happened; all she cared about was

Samuel’s well-being. Id. 133:2-133:17.

Melendez, who testified that he was

present for the Shooting,11 provided the

■ following details. Earlier in the night, before the incident, Melendez was hanging

out with some friends outside a store in

down-the-block Mill Brook when he no

ticed that'someone from up-the-block was

also hanging around outside the store. Id.

149:22-150:15. Melendez thought it was

“weird” for this person to be there because

people from up-the-block typically did not

go down the block, and vice versa. Id.

150:16-23. Melendez did not know the person’s name but identified him as the indi

vidual pictured in Government Exhibit 4.12

Id. 164:10-19; id. 165:2-3. Eventually, Melendez and his friends—but not the person

from up the block—made their way back

into the projects, specifically, into the

courtyard between Buildings 165 and 530.

until 2015. Id. 124:4-15; id. 126:16-127:2; GX

300. Samuel was originally from Queens but

moved into Santana's apartment when he was

16 years old; in 2014, he was living with her

full time. 7d. 127:5-10; id. 139:11-15.

11. In 2014, Melendez told law enforcement

that he was not present for the Shooting. Id.

166:9-25.

593

Id. 153:1-154:5; GX 211. Melendez testified

that he and some others, including Jonathan Perez and Samuel, spent the night

hanging out, drinking, and smoking near

the flagpole in that courtyard. Tr. 154:917, Feb. 26, 2019. At some point, Melendez

saw one of his friends freeze; when Melendez followed his gaze, he saw Howard approaching from St. Ann’s Avenue with the

same person from up-the-block who Melendez had noticed earlier in the night. Id.

154:18-1562:4; GX 211; GX 218. After they

arrived, Melendez heard shots being fired and ran to his apartment in Building 165.

Id. 150:16:19; id. 154:25-155:1; id. 157:712. Sometime later, Melendez went up the

block with a gun looking for Howard be

cause he wanted to retaliate. Id. 157:13158:2. Melendez did not find Howard but

instead ran into Colon, someone named

Dre, and another person whose name he

did not know. Id. 158:3-18. Melendez, who

was upset, asked them if they knew where

Howard was and if they knew why he had

shot at the group down the block. Id.

158:19-23. Melendez also told Colon and

others about what he ^t^ed. Id.

158:24-159:1.

Sometime after the Shooting, a memori

al was held in Mill Brook for Dykes, who

had passed away in a car accident. Id.

154:10-15; Id. 159:2-14. According to Melendez, people from both up and down the

block, including Howard, were present. Id.

159:11-14. When he saw Howard, Melendez asked him “[w]hat happened with [his]

aim.” Id. 159:15-18. Melendez explained

that he asked this because he thought that

12. Colon and Seda identified the person de

picted in Government Exhibit 4 to be MBG

member Jose. (Id. 201:17-22; Tr. 364:17-22,

Feb. 27, 2019.)

594

414 FEDERAL SUPPLEMENT, 3d SERIES

Howard was only trying to shoot one person, but a couple of others ended up getting hit. Id. 159:18-23. Howard “kind of

... laughed” in response, and Melendez

told him that people were upset. Id.

159:24-160:2. Then Howard clarified that

he was only coming for Samuel and was

not trying to hit anyone else. Id. 160:3—4.

Melendez told Howard that he would “deliver the message” but he ■ did not know

how much this apology would accomplish.

Id. 160:4-5.

Colon testified that, on the night of the

Shooting, he was alone in up-the-block Mill

Brook selling drugs. Id. 255:6-256:6. At

some point, Melendez approached him

“kind of anxious[ly]” and “with an atti

tude” and asked where Howard was, but

did not say anything more. Id. 256:10257:3. After this interaction, Colon' texted

his friends—specifically, Seda, Bush, Wingo, and James Robinson—to find out what

was going on. Id. 257:4-258:4. Colon ex

plained that he wanted to know what hap

pened in case someone tried to retaliate;

as a leader of MBG, Colon felt that he

would be a target for any act of retaliation

by someone from down-the-block. Id.

258:7-22. Colon also testified that he was

about 6 feet, 2 inches tall, and that, in

2014, he weighed about 160 pounds and

wore his hair in braids. Tr. 305:5-21, Feb.

27,2019.

Seda testified that he was at a strip club

on the night of the Shooting when he

heard from Colon that something had happened in Mill Brook. Id. 404:5-24. Seda

stayed at the strip club for some time after

that and then went back to his apartment

to hang out with his girlfriend. Id. 404:25'405:10. While there, Seda called Melendez

to find out what had happened. Id. 404:915. Eventually, Seda left his apartment

and went down the block to meet Melendez. Id. 406:5-8. Seda brought a gun with

him for this meeting because, having heard

that something happened, he did not want

to go down the block empty-handed. Id.

405:16—406:1. Melendez told him what happened and then Seda went back home for

the night. Id. 406:5-8; id. 406:24-407:1. A

week or two later, Seda discussed the

Shooting with Jose. Id. 407:2-6. According

to Seda, Jose told him that he went down

the block with a girl, called Howard to tell

him that Samuel was in the “park,” and

that Howard shot Samuel. Id. 407:7-16.

About a month and a half after the

shooting, Seda saw Howard, Jose, and De

vin White at a restaurant near Mill Brook.

Id. 408:22-^09:3; id. 410:9-12; id. 479:2-3.

Seda explained that his relationship with

Howard was not “really cool” at this point;

Howard had been telling people that he

had issues with Seda because Seda would

not help Howard retaliate after he got cut

by someone from another housing project.

Id. 409:4-13. Seda, who was angry about

this, asked Jose to tell Howard that he

should stay in Staten Island because Seda

would punch him in the face the next time

they saw each other. IdL 409:20-24. When

Seda tried to peace Howard MBG that

day, Howard confronted Seda about this

threat. Id. 410:17-20. In response, Seda

punched Howard in the face. Id. 410:21-24.

Howard threw his hands up, but nobody

swung. Id. 410:25—411:2. Howard then told

Seda he would “do [him] dirty,” which

Seda understood to mean that Howard

would shoot him rather than beat him up.

Id. 411:2-6. Seda then said to Howard,

“[y]ou think you’re tough because you shot

[Samuel],” and told Howard to “get [his]

punk ass .40”—referring to the gun that

he saw at Howard’s house in 2013. Id.

400:11-403:23; id. 411:7-14. Howard did

not deny the accusation that he shot Samuel. Id. 411:15-17. Afterward, Seda went

back to his apartment to get his guns—two

,357s—and then went down the block to an

apartment where the mother of Devin

White’s children lived. Id. 411:18-25. When

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

he got there, he saw Jose outside and told

him to get Howard. Id. 411:24-25. Howard

never came out, however, and eventually

Seda went home. Id. 412:1-4. The next

day, Seda awoke to several missed calls

and text messages telling him that Howard

wanted to fight. Id. 412:7-9. Around 8 p.m.

that night, the two fought; Seda beat How

ard up. Id. 412:21-413:1. Jose ultimately

broke up the fight, at which time Seda and

Howard “squashed” their problems, mean

ing they “gave each other a handshake,

peace[d] each other MBG, and gave each

other a hug.” Id 413:3-8.

The Government also introduced evi. dence that Howard had braids when he

was arrested on October 11, 2017 and con

tinued to have braids until approximately

three days before trial. Tr. 119:24-120:15,

Feb. 26, 2019; id. 140:25-145:7; GX 503;

GX 504A.

The defense introduced an affidavit from

Jose which stated that he has never been a

member of MBG or the YGz; that he has

no knowledge or belief that Howard shot

anyone; that he did not help Howard locate

Samuel on August 17, 2014 or otherwise

assist Howard in setting up the Shooting;

and that he never told anyone that How

ard was responsible for any alleged shoot

ing. DX A.

3. The Ballistics Evidence

Detective Estafani Cerda, a member of

the NYPD’s Evidence Collection Team,

testified that she recovered two .40 caliber

shell casings and a live .40 caliber bullet in

front of 165 St. Ann’s Avenue at approxi

mately 4:20 a.m. on August 17, 2014. Tr.

48:10-13, Feb. 25, 2019; id. 57:4-28; id.

58:7-9; GX 100. NYPD Detective Jonathan

Fox, the Government’s ballistics expert,

testified that the shell casings and the live

bullet recovered by Detective Cerda were

from the same manufacturer and of the

same caliber (.40 caliber) and that the shell

casings were fired from the same firearm.

595

Tr. 544:3-5, Feb. 28, 2019; id. 547:1-4. He

could not determine whether the live bullet

was cycled through the same firearm as

the two shell casings. Id. 544:6-14. During

his analysis, he found nothing to suggest

that the shell casings were fired from any

thing other than a .40 caliber semi-auto

matic handgun. Id. 546:8-11. He noted,

however, that it would be possible to fire

.40 caliber ammunition out of other types

of firearms. Id. 544:25-545:17.

DISCUSSION

Standard of Review

[1, 2] Federal Rule of Criminal Proce

dure 29(a) provides that “the court on the

defendant’s motion must enter a judgment

of acquittal on any offense for which the

evidence is insufficient to sustain a convic

tion.” Fed. R. Crim. P. 29(a). Specifically, a

court must grant a motion under Rule 29 if

there is “no evidence upon which a reason

able mind might fairly conclude guilt be

yond a reasonable doubt.” United States v.

Irving, 452 F.3d 110, 117 (2d Cir. 2006)

(internal quotation marks and citation

omitted). “The ultimate question is not

whether [the court] believe[s] the evidence

adduced at trial established [the defen

dant’s guilt], but whether any rational trier

of fact could so find.” United States v.

Eppolito, 543 F.3d 25, 45-46 (2d Cir. 2008)

(internal quotation marks, citation and em

phases omitted). Therefore, “a defendant

making an insufficiency claim bears a very

heavy burden.” United States v. Desena,

287 F.3d 170,177 (2d Cir, 2002).

[3,4] In considering the sufficiency of

the evidence, the court must “view all of

the evidence in the light most favorable to

the government, crediting every inference

that could have been drawn in the govern

ment’s favor.” United States v. Ware, 577

F.3d 442, 447 (2d Cir. 2009). A court must

analyze the pieces of evidence not sepa-

596

414 FEDERAL SUPPLEMENT, 3d SERIES

rately, in isolation, but together, in con

junction .with one another. See United

States v. Autuori, 212 F.3d 105, 114 (2d

Cir. 2000) (“[W]e consider the evidence in

its totality, not in isolation, and the govern

ment need not negate every theory of in

nocence.”).

II.

Count One (The MBG Racketeering

Conspiracy)

Howard argues that there was insuffi

cient evidence to convict him of the MBG

racketeering conspiracy charged in Count

One. In particular, Howard contends that

the Government failed to prove (i) that

Howard conducted or conspired to conduct

the MBG enterprise by engaging in a pat

tern of racketeering activity;13 and (ii) that

any of the alleged criminal acts committed

by MBG gang members were interrelated

or related to the MBG enterprise. Def.

Mem. at 3.

A. Applicable Law

[5] The RICO conspiracy statute pro

hibits an individual from conducting or

conspiring to conduct an enterprise by en

gaging in a pattern of racketeering activi

ty.14 18 U.S.C. §§ 1962(c), (d). To sustain a

conviction under this statute, the Govern

ment must prove that the defendant

“agreed with others (a) to conduct the

affairs of an enterprise (b) through a pattern of racketeering.” United States v. Ap13. In Howard's opening memorandum, he

appears to argue that the Government

failed to prove he personally committed two

predicate acts. See, e.g., Def. Mem. at 3. In

his reply, however, he contends that the

Government failed to prove that he agreed

that the MBG enterprise would engage in a

pattern of racketeering activity. Reply Mem.

at 4, ECF No. 507. Moreover, the Govern

ment addressed this latter argument in op

posing Howard's motion; it has not, either

in its opposition memorandum or thereaf

ter, argued that Howard waived his right to

challenge the sufficiency of the evidence re

plins, 637 F.3d 59, 77 (2d Cir. 2011) (inter

nal quotation marks omitted).

[6-8] “A pattern of racketeering in

volves, at minimum, two predicate racke

teering activities ... that occur within ten

years of one another.” United States v.

Vemace, 811 F.3d 609, 615 (2d Cir. 2016)

(citation omitted). Moreover, predicate acts

only form a pattern if they have “the same

or similar purposes, results, participants,

victims, or methods of commission, or oth

erwise are interrelated by distinguishing

characteristics and are not isolated

events.” H.J. Inc. v. Nw. Bell. Tel. Co., 492

U.S. 229, 240, 109 S.Ct. 2893, 106 L.Ed.2d

195 (1989) (internal quotation marks omit

ted). In other words, to constitute a pat

tern of racketeering activity, the predicate

acts “must be related to each other (‘hori

zontal’ relatedness), and they must be re

lated to the enterprise (‘vertical’ related

ness).” United States v. Minicone, 960

F.2d 1099, 1106 (2d Cir. 1992). “[0]ne way

to show that the predicate acts are hori

zontally related to each other is to show

that each predicate act is related to the

RICO enterprise,” that is, “by linking each

predicate act to the enterprise, although

the same or similar proof may also estab

lish vertical relatedness.” United States v.

Daidone, 471 F.3d 371, 375 (2d Cir. 2006.)

[9-11] To be found guilty of RICO conspiracy, a defendant “need only know of,

and agree to, the general criminal objecgarding his agreement that MBG would be

conducted through a pattern of racketeering

activity. Gov't Mem. at 12. The Court thus

concludes that. Howard’s challenge to his

RICO conspiracy prediction is squarely be

fore it.

14. RICO defines an "enterprise’' as, inter alia,

any union or group of individuals associated

in fact although not a legal entity. 18 U.S.C.

§ 1961(4). Howard does not challenge the

jury's determination that MBG was an enter

prise as defined by the statute.

U.S. v. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

597

tive of a jointly undertaken scheme.” Unit 195:4-10; id. 198:6-8; id. 213:13-22; Tr.

ed States v. Yannotti, 541 F.3d 112, 122 363:11-13, Feb. 27, 2019; id. 363:18-25;- id.

(2d Cir. 2008); see also, e.g., United States 366:13-14; Tr. 493:20-494:24, Feb.. 28,

v. Zichettello, 208 F.3d 72, 100 (2d Cir. 2019. According.to Colon, after this rivalry

2000) (“To be convicted as a conspirator began, the two gangs “wanted to hurt each

[under RICO], one must be shown to have other.” Tr. 216:10-15, Feb. 26, 2019. Colon

possessed knowledge of only the general also testified that he and other MBG memcontours of the conspiracy.”). “Neither bers committed multiple acts of violence,

overt acts, nor specific predicate acts that including shootings, in connection with the

the defendant agreed personally to com MBG/Killbrook rivalry. See, e.g., Tr.

mit, need be ... proved for a section 212:22-213:2, Feb. 26, 2019; id. 281:5-6.

1962(d) offense.” United States v. Bene- Seda likewise stated that, when an MBG

vento, 836 F.2d 60, 81 (2d Cir. 1987), abro member would commit a shooting, he

gated on other grounds by United States v. would often bring other members with him

Indelicato, 865 F.2d 1370 (2d Cir. 1989) to “be [his] eyes.” Tr. 408:3-8, Feb., 27,

(internal citation and quotation- marks 2019. Colon and Seda provided numerous

omitted); see also United States v:Ciccone, examples of shootings directed at rival

312 F.3d 535, 542 (2d Cir. 2002) (stating gang members that they committed or

that conviction on a racketeering conspira were involved in with other MBG mem

cy charge does not require a showing that bers, which were committed on behalf of

. the defendant committed or even agreed to MBG or its members. Tr. 273:11-275:12,commit the predicate acts). Simply put, the Feb. 26, 2019; id. 277:22-279:8; id. 280:7Court “need inquire only whether an al 281:19; Tr. 414:2-25, Feb. 27, 2019; id.

leged conspirator knew what the other 416:13-21; id: 416:22-427:20; id. 419:6-22.

conspirators ‘were up to’ or whether the

[13] The evidence is also sufficient to

situation would logically lead an alleged

show that Howard agreed to participate in

conspirator ‘to suspect he was part of a

MBG’s affairs. At the outset, the Court

larger enterprise.’ ” Zichettello, 208 F.3d

notes that it is apparent from the record

at 99 (quoting United States v. Viola, 35

that Howard’s membership in MBG did

F.3d 37, 44-45 (2d Cir. 1994)).

not entail active participation in the gang’s

violent crimes. As previously noted, howev

B. Application

er, the Government need not prove that

[12] The Court first turns to the ques Howard personally engaged in any predi

tion of whether the MBG enterprise con cate acts, or even that he agreed to per

ducted its affairs through a pattern of sonally commit any predicate acts, in order

racketeering activity.

to sustain a conviction under the RICO

-Here, the evidence regarding the shoot- conspiracy statute. See, e.g., Ciccone, 312

ings committed by MBG members was F.3d at 542. Instead, the Government must

sufficient to support a finding that they prove only that Howard “kn[e]w the genwere related to the gang. Colon, Seda, and eral nature of the conspiracy and that the

Rodriguez testified that MBG was a neigh- conspiracy extended] beyond [his] individborhood gang comprised of people from ual role.” United States v. Zichettello, 208

up-the-block Mill Brook, and that MBG F.3d 72, 99 (2d Cir. 2000). This prong is

engaged in a rivalry with Killbrook, ,the satisfied so long as he “knew what the

gang associated with down-the-block Mill other conspirators “were up to,’ ” or if “the

Brook. Tr. 194:23-24, Feb. 26, 2019; id. situation would logically lead [him] to sus-

598

414 FEDERAL SUPPLEMENT, 3d SERIES

pect he was part of a .larger enterprise.”

ic. (internal quotation marks and citation

omitted).

position in MBG, a racketeering enter

prise, shot at, injured, and attempted to

murder members of a rival gang near Mill

Brook, in violation of ■ 18 U.S.C.

§§ 1959(a)(3), (a)(5), and 18 U.S.C. § 2.

A. Applicable Law

Here, the Government presented' evi

dence to satisfy this standard. For one,

there was more than enough evidence to

show that Howard was a member of the

[14] For a defendant to be convicted of

gang. Colon and Seda testified that they committing a violent crime in aid of rackewould peace Howard MBG, and that How- teering under 18 U.S.C § 1959(a), the Govard. would frequently hang out with other ' ernment must prove five elements: “(1)

MBG members. Howard referenced MBG that the Organization was a RICO enterrepeatedly in his Facebook posts and mes- prise, (2) that the enterprise was engaged

sages, including posts in which he shows in racketeering activity as defined in

support for incarcerated members of RICO, (3) that the defendant in question

MBG. See, e.g., GX.404; GX 405; GX 408. had a position in the enterprise, (4) that

And the evidence shows that Howard was the defendant committed the alleged crime

well aware of the general contours of the 0f violence, and (5) that his general purconspiracy of which he was a member, pose in so doing was to maintain or inincluding the gang’s rivalry with Killbrook crease his position in the enterprise.”

and related acts of violence. He would United States v. Concepcion, 983 F.2d 369,

hang out in the Robinson Apartment, 3gj (2d Cir. 1992).

where guns were kept, drugs were sold,

and MBG members discussed their exB. Howard’s Motive

ploits. Tr. 269:24-270:2, Feb. 26, 2019; Tr.

[15] Howard contends that the Gov

434:21-24, Feb. 27, 2019. He spoke to Seda ernment failed to prove beyond a reason

about Seda’s committing crimes and shoot able doubt that he committed the Shooting

ing people. Tr. 479:4-11, Feb. 27, 2019, and “for the purpose of maintaining or increaswas sometimes present when Colon was .ing his position in the enterprise.” Def.

selling drugs. Tr. 270:3-4, Feb. 26, 2019. Mem. Supp. at 28-31. The Second Circuit

Moreover, the Government introduced Fa has noted that this phrase was “included

cebook messages between Howard and [in the VICAR statute] as a means of

other MBG members in which the gang proscribing murder and other violent

and the rivalry with people from down-the- crimes committed as an integral aspect of

block Mill Brook is discussed. See, e.g., GX membership in [RICO] enterprises.” Con407.

cepcion, 983 F.2d at 381 (internal quotaAccordingly, Howard’s motion for ac- tion marks, brackets, and citation omitted),

quittal on Count One of the Superseding Accordingly, to convict a defendant under

Indictment is DENIED.

the VICAR statute, the Government need

not prove that maintaining or increasingIII. Count Six (Violent Crime in Aid of position in the enterprise was the defen

the MBG Racketeering Conspira dant’s “sole or principal motive.” Id; see

cy)

also United States v. Thai, 29 F.3d 785,

Count Six of the Superseding Indict- .. 817. (2d Cir. 1994) (holding that the govern

ment charges that, on August 17, 2014, ment must prove that “the defendant’s

Howard, for the purpose of gaining en- general purpose in committing the crime

trance to and maintaining and increasing of violence was to maintain or increase his

U.S. v. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

position in the enterprise.” (emphasis added)). Instead, the motive requirement is

satisfied “if the jury could properly infer

that the defendant committed his violent

crime because he knew it was expected of

him by reason of his membership in the

enterprise or that he committed it in fur

therance of that membership.” Concepcion,

983 F.2d at 381.

599

violently to certain actions by outsiders,

and that failure to do so would undermine

a member’s standing in the gang. See, e.g.,

United States v. Rubi-Gonzalez, 311 F.

App’x 483, 486 (2d Cir. 2009); United

States v. Roye, No. 3:15 Cr. 29, 2017 WL

3670651, at *2 (D. Conn. Aug. 25, 2017),

rev’d on other grounds sub nom. United

States v. Frank, 749 F. App’x 5 (2d Cir.

2018) (denying acquittal on VICAR convic

tion because evidence was sufficient for a

reasonable juror to “conclude that Defen

dant perceived [the victim] to be a threat

to the enterprise and its members, and

that Defendant’s actions were in accor

dance with the expectations of the gang

and were done with the intention of meet

ing his obligations as a member”).

In accordance with these principles,

courts have found the motive requirement

met where, for example, the defendant’s

act was committed or authorized by lead

ers of an enterprise as part of an effort to

protect its operations against threats or

advance its objectives. See, e.g., United

States v. Aquart, 912 F.3d 1, 19-20 (2d Cir.

2018) (sufficient evidence to infer that de

[16] The Government contends that

fendant, as a leader of the enterprise, was

expected to act based on threat posed to the motive element was satisfied by evienterprise by competitor’s drug sales and dence that Howard was a member of

that failure - to do so would have under- MBG; Samuel was a member of Killbrook;

mined his position within the enterprise); as part of the MBG/Killbrook rivalry,

United States v. Rivera, 273 F. App’x 55, MBG members shot at Killbrook members

58 (2d Cir. 2008) (affirming conviction on several occasions; and committing acts

where evidence showed “that [the defen- of violence would increase Howard’s status

dant’s] motives for the murders were not within MBG.. Gov’t Mem. • at 21-23. The

only based on self-preservation, but also- Government also highlights evidence that

on preservation of the enterprise.”); Unit- Howard discussed retaliating against Samed States v. Diaz, 176 F.3d 52, 95-96 (2d uel with Devin White, another MBG memCir. 1999) (defendant sanctioned murders ber, and that Jose, an MBG member, as

of both rival drug dealer and suspected sisted Howard in connection with the

informant to protect drug gang’s territory Shooting. Id. at 23. These arguments fail

and to maintain defendant’s leadership po tor the reasons discussed below.

sition in the gang); United States v. Pi[17,18] First, the VICAR motive elementel, 346 F.3d 285, 295-96 (2d Cir. 2003) ment may not.be satisfied merely by the

(gang chapter president participated in fac^

Howard was a member of MBG,

murder to advance his position within the Samuel was a member of Killbrook, and

gang).

members of the two gangs shot at each

Courts have likewise found this element other on several occasions as a result of a

satisfied where the defendant’s act was rivalry between them. The Second Circuit

consistent with the enterprise’s goals, has held that such reasoning “misses the

rules, policies, or culture. For instance, point, which asks only whether the intendVICAR convictions have been affirmed ed assault, whatever the association of its

upon the Government’s showing that mem- victims, was intended to aid defendants’

bers of the gang are expected to respond racketeering.” United States v. Sanchez,

600

414 FEDERAL SUPPLEMENT, 3d SERIES

623 F. App’x 35, 41 (2d Cir. 2015) (empha- tation of the enterprise, thus leading [othsis added). Sanchez held that an assault er gang members] to defend the enterprise

could satisfy VICAR’s motive prong even against the ‘threat’ posed by this affair.”);

when the victims were not members of a United States v. Barbeito, No. 2:09 Cr.

rival gang. See 623 F. App’x at 41. But the 00222, 2010 WL 2243878, at *19 (S.D. W.

opinion’s logic applies just as strongly in Va. 2010) (“[C]ourts have rejected unsupreverse: even when the victim was a mem- ported inferences, proffered by the Govber of a rival gang, the Government must ernment, that acts of violence by a memshow that the assault was intended to aid ber of a racketeering enterprise committed

the defendant’s racketeering. See United for ostensibly personal reasons were motiStates v. Banks, 514 F.3d 959, 968 (9th Cir. vated by a desire to increase the member’s

2008) (holding, in a case where the victim position.”),

of an assault was a member of a rival

Moreover, while shooting Killbrook

gang, that it was impermissible to “convict .

[the defendant] on the VICAR counts even members and enlisting the assistance of

if it found that his battle with [the victim] other MBG members in doing so may have

was generally motivated by personal ani- been acts that, were generally consistent

mosity and by a desire to regain the re with MBG’s modus operandi,' such evi

dence is not necessarily dispositive. See,

spect and affection of his girlfriend”).

Courts in this circuit and elsewhere have e^> Thai’ 29 R3d at 818 (racketeering

also rejected the assumption that any vio motive could not be evidenced merely by

lence in response to a personal affront to a the fact that the bombing of an Asian

member of an enterprise can satisfy VIC- restaurant was committed by a leader of a

AR’s motive prong. For example, in Unit gang that earned money by committing

ed States v. Jones, 291 F. Supp. 2d 78 (D. violent crimes a£ainst Asians). The evi

Conn. 2003), the court rejected “[t]he gov dence in this case fails to show that the

ernment’s argument that any personal act Shooting was consistent with MBG s operof disrespect toward [the defendant] was ations or goals at the time it was committantamount to an act of disrespect against ted. Melendez testified that, at the time of

the [enterprise,” because that theory the Shooting, the relationship between

“blurs Concepcion’s distinction between vi Killbrook and MBG was “cordial” and

olent crimes that are committed in connec- there had not been any rivalry-related

tion with a criminal enterprise’s affairs and shootings for approximately a year. Tr.

those that arise from purely non-enter-. 151:24-152:9, Feb. 26, 2019. Melendez tesprise-related matters. Indeed, taking the tified that this was because drug dealers

government’s theory to its logical conclu- decided that it would be better for busision, any act of violence committed by a ness if there were not any shootings. Id.

member of a drug-trafficking group, 152:10-23; id. 183:21-25. Colon, MBG’s

whether related to its drug-trafficking ob- leader, was an active drug dealer in 2014;

jectives or not, would be a VICAR of- in fact, he was dealing drugs on the night

fense.” Id at 89; see also, e.g., United of the Shooting. Id. 212:22-25; id. 255:6States v. Hunter, No. 5 Cr. 188, 2008 WL 17; id. 268:19-25. Rodriguez testified that,

268065, at *8 (E.D.N.Y. 2008), ajfd, 386 F. when Howard approached him to fight on

App’x 1 (2d Cir. 2010). (“I [] reject the the ferry in 2015, he told Howard that he

government’s argument that [the victim’s] did not want to fight because he did not

disrespect for [a gang member] (by sleep- want to reignite the rivalry between the

ing with his girlfriend) damaged the repu- two gangs. Tr. 503:13-17, Feb. 28, 2019. In

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

short, it was clear to virtually everyone

that the rivalry between MBG and Killbrook had reached a standstill by August

2014 and that there was an interest in

keeping things that way. If the Shooting

were indeed related to the MBG/Killbrook

rivalry, it would make no sense for How

ard to retaliate in 2014—three years after

Samuel broke his jaw, and during a time

when there was a truce between the two

gangs—rather than in 2011—immediately

after Samuel punched him, and when ten

sion between the .two gangs was at a high.

• The foregoing facts distinguish How

ard’s case from those in which a defen

dant’s conduct was explicitly or implicitly

authorized by the gang’s leaders. Here,

• MBG’s leaders did not help Howard plan

the Shooting or in any way direct him to

commit it. On the contrary, Colon—one of

the gang’s leaders—did not even know

about it until Melendez informed him, and

Howard used his own gun, as opposed to

an MBG gun, to commit the Shooting. (Tr.

257:256:10-258:4, Feb. 27, 2019; Id 402:23403:23.) Indeed, the evidence indicated

that the Shooting was directly contrary to

the gang’s interests because members

were actively trying to reduce violence be

tween the gangs at the time. Tr. 151:24152:9, Feb. 26, 2019; Tr. 503:13-17, Feb.

28, 2019. See United States v. D’Angelo,

No. 02 Cr. 399 (JG), 2004 WL 315237, at

*13 (E.D.N.Y. Feb. 18, 2004) (insufficient

evidence of VICAR motive where the evi

dence showed that the defendant was “act

ing against the interests of [the gang] by

suddenly shooting someone whom [the

gang] members would be suspected of kill• ing, even though those same [gang] mem

bers did not want the murder to occur”).

Moreover, Howard clearly did not have

any noteworthy status in the gang such

that his actions might be understood to

evidence his interest in preserving his par

ticular position in the gang. Nor does the

601

evidence allow the inference that Howard—or anyone else—viewed Samuel’s

breaking of Howard’s jaw as an affront to

the gang such that one could infer Howard’s desire to commit the Shooting in

order to protect the gang’s operations or

reputation. On the contrary, Seda explicit

ly testified that he did not help Howard

retaliate. Tr. 461:23-25, Feb. 27, 2019. This

suggests that the attack on Howard was

not viewed as an affront to the gang. How

ard seemed aware of this, given that he

told another MBG member that he did not

expect anyone to retaliate on his behalf.

GX 407.

Further, the evidence failed to show that

Howard’s position in the gang would be in

question if he failed to retaliate against

Samuel. Seda acknowledged that Howard

was a “real memberf ]” of MBG even

though he was not a “shooter” or “killer[,]”

and explained that there were “a lot” of

MBG members who did not engage in acts

of violence or any other criminal acts. Tr.

461:23-462:6, Feb. 27, 2019; id 464:12465:1. Furthermore, Howard was evidently

a member of the gang for roughly a dec

ade before he committed a single crime.

Tr. 195:11-12, Feb. 26, 2019; id. 199:3-5;

464:5-11, Feb. 27, 2019. This is true' notwithstanding the fact that in 2009 another

Killbrook member, Rodriguez, robbed

Howard at knifepoint and then publicly

burned Howard’s jacket in an attempt to

establish Killbrook’s dominance over

MBG—an act that would readily be under

stood as a threat to the enterprise. Tr.

499:8-502:9, Feb. 28, 2019; id 502:10-18;

id 511:19-512:20; id 515:15-18. The evi

dence, therefore, cannot support any infer

ence that Howard committed the Shooting

because it was expected of him by way of

his MBG membership or because his posi

tion might have been undermined if he

failed to retaliate. Cf. Rubi-Gonzalez, 311

F. App’x at 486-87 (citing evidence that

the gang had a “fight at first sight” policy

•

602

414 FEDERAL SUPPLEMENT, 3d SERIES

with regard to rival gangs in affirming sire to maintain or increase his standing

VICAR conviction); United States v. El- within MBG, one would expect him to talk

dridge, No. 1:09 Cr. 329, 2017 WL 3699312, about the Shooting with other members,

at *11 (W.D.N.Y. Aug. 28, 2017) (finding such as one of the gang’s leaders, after

sufficient evidence of gang-related motive the fact. See, e.g., United States v. Farmwhere the defendant was recorded making er> 583 F.3d 131, 142 (2d Cir. 2009) (afstatements such as: “The way I gotta re firming VICAR conviction based on evispond to certain things in Buffalo ... .1 dence that the defendant “boasted about

don’t have to respond when I’m some- the crime to his fellow [gang members] in

where else because there are no expecta the days and months” after the crime);

tions of me. ...”; “I be around a lot of United States v. Whitten, 610 F.3d 168,

criminals and all that and I am the one 179-81 (2d Cir. 2010) (citing evidence

who is looked up to”; “I ain’t just being the showing that the defendant was “proud” of

average . individual amongst the whole his crimes and “wanted others to be made

bunch”); United States v. Smith, No. 09 aware of them,” and that the defendant

Cr. 331-A, 2017 WL 3529047, at *5

reported back to one of the gang’s leaders

(W.D.N.Y. Aug. 17, 2017) (affirming VIC

after the crimes, to support conclusion

AR conviction based on evidence “that [a

that VICAR motive element was satisfied);

rival gang’s shooting of the brother of the

United States v. Mayes, No. 12-CR-385,

defendant’s gang member] was a compel

2014 WL 3530862, at *8-9 (E.D.N.Y. July

ling event for [the defendant’s gang] mem

bers, that retaliation against the [rival 10, 2014) (“[The defendant’s] later refer

gang] was widely viewed as essential to ences to this murder shed light on his

' the gang among [ ] members, and that [the motive for committing it[;] ... numerous

defendant] concluded he would not be left witnesses testified that [the defendant]

told them about the murder, either directout of it”).

. „

...

ly or by implication.”); id. (“[T]he jury

As for enhancing his position, although

,, ,

. „

...

it a nran

could have inferred that Anthony -Mayes

there was testimony that MBG members

,, gam

. respecti iby committing acts

, ofe committed the murder to mcrease his pocould

violence, Tr. 213:3-4, Feb. 26, 2019, there sition 1x1 the enterPrise’ based on the way

was virtually no evidence that in 2014 that he later referred to the murder to

Howard had any interest in becoming a intimidate members’ and rivals, coupled

leader or otherwise advancing his status in with Timmons’ testimony that a murder

the gang. There were, of course, the Face- by a younger member of a group can play

book messages from 2011 in which How a critical role in helping that person gain

ard expressed a desire to harm Killbrook respect.”) (emphasis added). That is espemembers, including Samuel. GX 404; GX cially so given Seda and Colon’s testimony

407. But there is nothing in the record ■ that they generally did brag about their

between the time Howard made those criminal exploits. See Tr. 279:24-280:2,

statements and the night, of the Shoot- Feb. 26, 2019; Tr. 424:24-425:5, Feb. 27,

ing—a gap of more than three years—to 2019: But. here, the evidence shows that

indicate that Howard had any desire to Howard made no effort to tell any MBG

gain status in MBG. The evidence, there- members about his role in the Shooting,

fore, does not show that Howard intended For instance, when Seda confronted How

to further his status or MBG’s operations ard about the Shooting, Howard did not

when he committed the Shooting.- Indeed,- deny it—but he also did not admit to it,

if Howard were at all motivated by a de- much less boast about it. Tr. 411:7-17,

U.S. V. HOWARD

Cite as 414 F.Supp.3d 580 (S.D.N.Y. 2019)

603

Feb. 27, 2019. Indeed* it appears that the defendant’s] position in the [enterprise]

only person to whom Howard did admit to was advanced in fact by the murder he

the Shooting was Melendez—someone committed, but whether his purpose in

from, down-the-block, who was not a mem- committing the murder was to benefit his

■ ber of MBG (or Killbrook) and could not position.” Farmer, 583 F.3d at 142. But it

have any influence over Howard’s status is nonetheless significant, in light of the

in the gang. Tr. 147:15-20, Feb. 26, 2019; substantial evidence of Howard’s personal

id. 159:15-160:4; id. 169:3-4.

dispute with Samuel, that the shooting

On this point, the Court notes that How- may have “actually decreased his standing

ard’s statement to Melendez about the m the [enterprise.]” United States v. Bra

Shooting—that he was only coming for n0> ^83 F.3d 65, 85 (2d Cir. 2004), as

Samuel, id. 159:24-160:4—also undermines amended Oct. 6, 2016. Just a few weeks

any conclusion that he committed the later, Howard was in a fight with Seda, a

Shooting in connection with MBG or its senior member of MBG, and during the

rivalry with Killbrook. Colon, for example, fight Seda mocked Howard for the shoottestified about multiple instances in which ing- Tr. 400:11-411:7-14, Feb. 27, 2019.

he shot at one Killbrook member or anoth

[20] Even straining to draw every in

er, and that at times, his target was any

ference in favor of Howard’s having a moKillbrook member he could find. See, e.g.

Tr. 328:3-7, Feb. 27, 2019. Seda likewise five of maintaining or improving his posi

testified .about .multiple instances in which tion in MBG, it is clear that the trial

he shot at Killbrook members who had not evidence “gave nearly equal circumstantial

specifically done anything to him. See, e.g., support to competing explanations,” if not

id 429:18-430:16. Howard, by contrast, substantially greater support. United

was not seeking to shoot at any Killbrook States v. Glenn, 312 F.3d 58, 70 (2d Cir.

member; instead, as he explained to Me 2002) (internal quotation marks omitted).

lendez, he was only coming for one per In that circumstance, “a reasonable jury

son—the same person who had previously must necessarily entertain a reasonable

attacked him. The same is also true of doubt.” Id. (internal quotation marks and

Howard’s conversation with Rodriguez in citation omitted). The Court therefore

2015, in which Howard effectively told . must conclude that the evidence was insuf

Rodriguez that Samuel was “the only per ficient for a reasonable juror to conclude

son [Howard was] beefing with ... from that Howard committed the Shooting in

. Mill Brook.” Tr. 513:7-15, Feb. 28, 2019. order to maintain or increase his position

in MBG. Howard’s motion for a judgment

[19] Finally, there was no evidence of acquittal on Count Six is GRANTED.15

that Howard’s status was enhanced by the

Shooting. No member praised Howard for T

IV. Count Twelve (Firearm Offense)

his accomplishment or otherwise ad

As noted above, the jury convicted Howdressed the Shooting in a manner that

could allow for the inference that it was ard on Count Twelve in connection with

done in furtherance of the enterprise. Of both Count One, the racketeering conspircourse, “the question is not whether [a acy, and Count Six, the VICAR. Tr. 726:515. Because the Court grants Howard’s mo

tion for acquittal on Count Six on this basis,

there is no need to address the difficult ques

tion of whether the evidence was sufficient to

demonstrate that he “had a position in the

enterprise,” Concepcion, 983 F.2d at 381. See

Def. Mem. at 27, 29-30.

1 ~

604

414 FEDERAL SUPPLEMENT, 3d SERIES

727:2, Mar. 6, 2019. Because Howard’s mo cy. “The phrase ‘in relation to’ ... at a

tion for a ■ judgment of acquittal as to. minimum, clarifies that the firearm must

Count Six has been granted, however, his have some purpose or effect with respect

conviction on Count Twelve now rests sole- _ to the ... crime.” Smith v. United States,

ly on his conviction for Count One.

508 U.S. 223, 238, 113 S.Ct. 2050, 124

[21] Count Twelve is charged under 18 L.Ed.2d 138 (1993). Likewise, for posses

U.S.C. § 924(c), which criminalizes using a sion of a firearm to be “in furtherance” of

firearm “during and in relation to,” any a conspiracy, “[t]he defendant must be

“federal crime of violence,” or possessing a shown to have possessed the gun for the

firearm “in furtherance of’ such a crime, purpose1 of playing some role, even if small,

The statute defines “crime of violence,” in in the furtherance of the conspiracy.”

relevant part, as an offense that is a felony United States v. Gardner, 602 F.3d 97, 100

and [ ] has as an element the use, attempt- (2d Cir. 2010) (affirming jury instruction

ed use, or threatened use of physical force with that language). Here, there was no

against the person or property or anoth- evidence that Howard used his .40 caliber

er.” See § 924(c)(3).ls The Second Circuit gun to any purpose or effect related to the

has made it clear that a RICO conspiracy RICO conspiracy, or that his possession of

can be a crime of violence if the underlying

gun played any role in furthering the

RICO offense is based on crimes of vio conspiracy. The evidence at trial demon

lence. See United States v. Scott, 681 F. strated Howard’s use of the gun only

App x 89, 95 (2d Cir. 2017) (Where, as twice: when he showed it to Seda on Stahere, the jury finds two RICO predicates ten Is]and in 2013, see Tr. 400:21-102:22,

constituting crimes of violence have been Feb. 27, 2019; id. 403:10-23; id 403:24-proven, [United States v. Ivezaj, 568 F.3d 404:1, and when he used it to shoot Samuel

88, 96 (2d Cir. 2009),] instructs us to treat at Mill Brook in 2014, see Tr. 48:10-13,

the RICO offense as a crime of violence,

Feb. 25, 2019; id. 57:4-28; id. 58:7-9; Tr.

and [United States v. Elder, 88 F.3d 127,

544:3-5, Feb. 28, 2019; id. 544:6-14; id.

129 (2d Cir. 1996),] instructs us to treat

546:8-11; id. 547:1-4. The former incident

the conspiracy to commit that offense—

had no meaningful relationship to the

that is, the RICO conspiracy charged

RICO conspiracy, other than that Howard

here—as a crime of violence as well.”). In

showed the gun to a co-conspirator in a

this case, the RICO predicate acts includ

social setting. The latter incident, too, did

ed multiple acts involving murder, ECF

not further the conspiracy or have any

No. 169 H 5(a), so the RICO offense was a

crime of violence, and conspiracy to com purpose or effect related to it; as described

mit the RICO offense is a crime of violence above, Howard’s motive for the Shooting

was entirely personal, and if anything the

too. Scott, 681 F. App’x at 95.

shooting was contrary to MBG’s goals at

[22,23] The evidence does not show, the time. See supra Section III.B.

however, that Howard used a firearm “in

Accordingly, Howard’s motion for ac

relation to” the. RICO conspiracy or pos

sessed it “in furtherance of” the conspira- quittal on Count 12 is GRANTED.

16. Section 924(c)(3)(B) also defines a crime

of violence as including an offense “that by its

nature, involves a substantial risk that physi

cal force against the person or property of

another may be used in the course of commit-

ting the offense.” But the Supreme Court

invalidated that portion of the definition as'

unconstitutionally vague earlier this year. See

United States v. Davis, ---- U.S. —:—, 139 S.

Ct. 2319, 2336, 204 L.Ed.2d 757 (2019).

XL INSURANCE AMERICA v. DIAMONDROCK HOSPITALITY

Cite as 414 F.Supp.3d 605 (S.D.N.'Y. 2019)

CONCLUSION

For the foregoing reasons, Howard’s

motion is GRANTED as to Counts Six and

Twelve of the Superseding Indictment and

DENIED as to Count One of the Superseding Indictment. Howard is, there

fore, entitled to a judgment of acquittal on

the jury’s verdict finding him guilty on

Counts Six and Twelve of the Superseding

Indictment, and his conviction on those

counts is VACATED. The Clerk of the

Court is directed to terminate the motions

at ECF Nos. 479 and'484.

SO ORDERED.

J^\_________

lO | KEY NUMBER SYSTEM >

XL INSURANCE AMERICA,

INC., et al., Plaintiffs,

DIAMONDROCK HOSPITALITY

CO., et al., Defendants.

18-CV-10025 (AJN)

United States District Court,

S.D. New York.

Signed 09/30/2019

Background: Insurers brought action

against, insured, whose resort was dam

aged by hurricanes and who had filed par

allel. proceedings in Virgin Islands Superi

or Court, seeking declaratory judgment

regarding forum selection clause and

choice of law clause in insurance policy of

one insurer! Following removal, insurer

filed motion to dismiss or stay.

Holdings: The District Court, Alison J.

Nathan, J., held that:

)

605

(1) forum selection clause did not require

action to be conducted in New York,

and

(2) abstention was warranted.

Motion granted,