Petition for Writ of Certiorari — Marvin Pippins, Petitioner v. United States
Supreme Court briefJul 9, 2026
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IN THE
SUPREME COURT OF THE UNITED STATES
Application No.___
Marvin Pippins,
Petitioner-Appellant,
v.
United States of America,
Respondent-Appellee.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Richard Levitt
Zachary Segal
LEVITT & KAIZER
40 Fulton Street, 17th Floor
New York, New York 10038
rlevitt@landklaw.com
(212) 480-4000
Counsel to Marvin Pippins
QUESTIONS PRESENTED
I. The most serious of the charges upon which Petitioner was tried concerned his
having killed Sean Peart in retaliation for the murder of Petitioner's twin brother,
Melly. Count One of Superseding Indictment S-3 charged RICO Conspiracy (18
U.S.C. § 1962(d)); Count Two charged Conspiracy to Murder in Aid of Racketeering
(18 U.S.C. § 1959(a)(5)); Count Three charged Murder in Aid of Racketeering (18
U.S.C. § 1959(a)(l)); and Count Four charged Unlawful Use of the Firearm (used in
Count Three) Resulting in Death (18 U.S.C. § 924G)(l).1
At trial, both during opening statements and during his testimony, Petitioner
admitted that he killed Peart but said he did so purely for personal reasons and not
because of his affiliation with the named gang, the "5-9 Brims." Substantial evidence
supported his position. The government argued otherwise.
Petitioner therefore asked the trial court to instruct the jury that to find a
sufficient enterprise-related
motive it must find it was a "substantial" one or one
"integral" to his position in the 5-9 Brims. The court denied this request. It said the
proper instruction was subject to "reasonable debate" (Tr. 1826); (Pet. App. 78a). 2 and
it was concerned "there's a possibility that a jury might find that it [i.e., the 5-9 Brims]
was a motive but maybe not the substantial motivating factor" and therefore acquit
Additionally, Count Six charged Petitioner with Conspiracy to Possess with Intent to
Distribute Controlled Substances (21 U.S.C. §§ 846, 841(b)(l)(C)), and Count Seven charged him with
Unlawful Use of a Firearm (18 U.S.C. § 924(c)(l)(A)(i)). Petitioner was not charged in Count Five and
Counts Eight through Eleven.
Citations to "Tr." or a number refer to the trial transcript from the lower court proceedings.
Certain transcript excerpts are reproduced herein as part of Petitioner's Appendix.
2
1
Petitioner (1821); (Pet. App. 73a), and that "if the law allows the government to win
its case that way [i.e., by rejecting the requested instruction], I think that that's how
I should instruct them, so as not to essentially put my finger on the scale in terms of
the jury's verdict." Id The court thereafter
instructed
the jury that the motive
element,
is therefore established if the defendant had a personal motive for committing the
act of violence so long as he was also motivated by the desire to gain entrance to,
or maintain or increase his position in, the racketeering enterprise. If, however,
you find that the defendant was not motivated at all by the desire to gain
entrance to, or maintain or increase his position in, the enterprise, but was
motivated only by other factors, then you cannot find him the [sic] guilty of this
count.
(2126) (emphasis added).
The trial court therefore instructed the jury, in essence, that Petitioner could
be found to have had the requisite enterprise-related
motive even if his principal
motive was personal and even if the enterprise-related
motive was de minimis or
vanishingly small. This instruction was error.
The Second Circuit panel that heard this appeal ruled that the trial court's
instructions would not have allowed the jury to convict Petitioner based on a finding
that his enterprise-related
motivation was "incidental or insubstantial."
It further
found that, in any event, any error was harmless error.
The questions presented are: (a) Could the Second Circuit have rationally
concluded that the instructions
enterprise
did not permit conviction if the jury found the
motivation to be "incidental or insubstantial"
11
where the district court
instructed the jury to acquit only if it found petitioner "was not motivated at all" by
his gang membership; (b) Could the instructional
reasonable
doubt where there was substantial
error be harmless beyond a
evidence from the government's
linchpin witness as well as from Petitioner himself supporting the conclusion that
Petitioner had no gang-related motive for the killing; and (c) Did the Second Circuit
fulfill its obligation to this Court by declaring that any instructional
error was
harmless absent any explanation of that conclusion.
IL Substantial
evidence at trial supported the conclusion that Petitioner had no
loyalty at all to the enterprise named in the indictment - the "5·9 Brims" - and that
if he had loyalty to a gang it was to "Breadgang" - a "party" and "scamming" gang
which Petitioner's
brother Melly had founded. Although Breadgang had many
members from the Marlboro housing projects in Brooklyn, New York, who were also
members of the 5-9 Brims, Breadgang had other members who were affiliated with
another gang, including gangs that were rivals of the 5-9 Brims.
Concerned that the jury might find that Petitioner's loyalty was to Breadgang
and not to the 5-9 Brims - and therefore find that Petitioner was motivated in part
to kill Sean Peart as a result of his Breadgang - and not his 5-9 Brim - affiliation,
the government concocted a never-before-used nickname for Breadgang - the "5-9
Brims of Marlboro" - in order to create in the jurors' minds an association between
the 5-9 Brims and Breadgang. It implemented this strategy by using the term "5-9
iii
Brims of Marlboro” extensively, as a stand-in for “Breadgang,” when it questioned its
two cooperating witnesses about Breadgang.
During summation, defense counsel argued to the jury – with related
PowerPoint slides – that the made-up name “5-9 Brims of Marlboro” was a “sneaky”
effort by the government to “train” the jury to associate the Breadgang with the 5-9
Brims. The trial court sustained the government’s objection to this argument, ruling
that defense counsel is not permitted to “impugn the integrity of the government”
(1921); (Pet. App. 82a), and forcing a lengthy delay in the defense summation while
defense counsel purged his argument and slides of any criticism of the government.
The question presented is: Was the trial court’s order contrary to this Court’s
jurisprudence by establishing two sets of rules: one that permits sharp government
criticism of defense counsel, and another that shields the government from similar,
justified scrutiny.
PARTIES TO THE PROCEEDING
Petitioner Marvin Pippins was the appellant below. Respondent United
States of America was the appellee below.
iv
TABLEOF CONTENTS
QUESTIONS PRESENTED .................................................................................. i
TABLE OF CONTENTS ........................................................................................ v
TABLE OF CITED AUTHORITIES ...................................................................... vii
PETITION FOR A WRIT OF CERTIORARI ........................................................ 1
OPINIONS AND ORDERS BELOW ..................................................................... 1
JURISDICTION ..................................................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...... :........ 1
STATEMENT OF THE CASE ............................................................................... 2
A. Legal Background ........................................................................................ 2
B. Factual and Procedural Background .......................................................... 3
REASONS FOR GRANTING THE WRIT ............................................................. 6
I.
(a) The Second Circuit erroneously and irrationally ruled that the
district court's jury instruction to acquit only if Petitioner "was not
motivated at all'' by an enterprise-related, would not have wrongly
permitted conviction if the jury believed Petitioner's enterprise-related
motive was de minimis; (b) The district court's instructional error
could not have been harmless beyond a reasonable doubt where there
was substantial evidence that Petitioner had no gang-related motive
for the killing, and where the trial judge admitted that if she gave an
instruction consistent with the law the jury might acquit; and (c) the
Second Circuit, by citing no support for its harmless error finding,
failed in its obligation to provide this Court a record sufficient to
permit meaningful review ........................................................................... 6
Discussion ................................................................................................... 8
A. Petitioner was entitled to an instruction incorporating the
"substantial
motivating factor" or "integral aspect of
membership" language ..................................................................... 9
V
B. The panel's doubt that the instructions "when taken as a whole,
allowed the jury to convict Petitioner ... even if his enterprise
motivation was 'incidental or insubstantial" enjoys no support
in the record ..................................................................................... . 12
C. The Second Circuit's conclusion that any error was "harmless"
is equally unsustainable ...................................................................
13
D. The Second Circuit's harmless error analysis was insufficient to
permit meaningful review by this Court ......................................... 14
IL
Was the trial court's order contrary to this Court's jurisprudence by
establishing two sets of rules: one that permits sharp government
criticism of defense counsel, and another that shields the government
from similar, justified scrutiny ................................................................... 16
Discussion ...................................................................................................
21
CONCLUSION .......................................................................................................
25
APPENDIX
Vl
TABLE OF CITED AUTHORITIES
Federal Cases
Clemons v. Mississippi, 494 U.S. 738 (1990) ..............................................................
15
Davis v. Nape], No. 2:14-cv-10019 (E.D. Mich. Feb. 29, 2016) .................................. 21
Francis v. Franklin, 4 71 U.S. 307 (1985) ....................................................................
14
Herring v. New York, 422 U.S. 853 (1975) ..................................................................
16
Lindgren v. Lane, 925 F.2d 198 (7th Cir. 1991) .........................................................
21
Neder v. United States, 527 U.S. 1 (1999) ............................................................
14, 15
Robertson v. Simpson, WL 3880940 (W.D. Ky. Sept. 2, 2011) ............................ 22, 24
Rodriguez v. Morris, No. CV-19-04957-PHX-GMS (D. Ariz. May 17,
2021) ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
21
Slagle v. Bagley, 457 F.3d 501 (6th Cir. 2006) ...........................................................
22
Sochor v. Florida, 504 U.S. 527 (1992) ........................................................................
15
United States v. August, 984 F.2d 705 (6th Cir. 1992) ..............................................
21
United States v. Banks, 514 F.3d 959 (9th Cir. 2008) ...............................................
10
United States v. Caputo, 808 F.2d 963 (2d Cir. 1987) ................................................
22
United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992) ........................................... 9
United States v. Fie], 35 F.3d 997 (4th Cir.1994) .......................................................
10
United States v. Fox, 761 F. App'x 765 (9th Cir. 2019) ..............................................
21
United States v. Garcia, 74 F.4th 1073 (10th Cir. 2023) ...........................................
11
United States v. Hackett, 762 F.3d 493 (6th Cir. 2014) .............................................
10
United States v. Heilman, 377 F. App'x 157 (3d Cir. 2010) ....................................... 11
United States v. Kamahele, 748 F.3d 984 (10th Cir. 2014) ....................................... 10
United States v. Marrale, 695 F.2d 658 (2d Cir. 1982) ..............................................
Vil
23
United States v. McClaren, 13 F.4th 386 (5th Cir. 2021) ..........................................
United States v. Pippins, No. 25-154, 2026 WL 277682 (2d Cir. Feb. 3,
2026) ................................................................................................................
10
1, 8, 20
United States v. Praetorius, 622 F.2d 1054 (2d Cir. 1979) ........................................ 22
United States v. Rainford, 110 F.4th 455 (2d Cir. 2024) ........................................... 21
United States v. Riddle, 249 F.3d 529 (6th Cir. 2001) ...............................................
11
United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) ......................................... 21, 22
United States v. White, 7 F.4th 90 (2d Cir. 2021) ..................................................
9, 10
United States v. Young, 470 U.S. 1 (1985) ............................................................
20, 23
Statutes and Other Authorities
U.S. CONST. amend. V ....................................................................................................
1
U.S. CONST. amend. VI ...................................................................................................
2
18 U.S.C. § 1959 .......................................................................................................
2, 11
28 U.S.C. § 1254 .............................................................................................................
1
28 U.S.C. § 2101 .............................................................................................................
1
Vlll
PETITION FOR WRIT OF CERTIORARI
Petitioner Marvin Pippins respectfully seeks a writ of certiorari to review the
judgment of the United States Court of Appeals for the Second Circuit affirming his
conviction and sentence.
OPINIONS AND ORDERS BELOW
The court of appeals' summary order affirming Petitioner's conviction and
sentence (Pet. App. la-13a) does not have an official citation but is reported at 2026
WL 277682 (2d Cir. Feb. 3, 2026). The court of appeals' order denying Petitioner's
petition for rehearing en bane (Pet. App. 14a) is unpublished. The district court's
decision denying Petitioner's motion for a new trial may be found at 733 F. Supp. 3d
136 (E.D.N.Y. 2024) (Pet. App. 15a·60a).
JURISDICTION
The court of appeals issued its opinion and entered judgment on February 3,
2026, and denied rehearing en bane on March 11, 2026, (Pet. App. la-14a). On June
4, 2026, Justice Sotomayor extended the time to file a petition for a writ of certiorari
to July 9, 2026. See 28 U.S.C. § 2101(c). This petition is timely filed on July 9, 2026.
The Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fifth Amendment to the U.S. Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
1
subject for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation.
The Sixth Amendment to the U.S. Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.
STATEMENT OF THE CASE
A. Legal Background
Petitioner
was charged with several others
in Indictment
1:19-cr-378
(E.D.N.Y.) (PKC) for crimes related largely to the murder of Sean Peart. The top count
charged Petitioner with Murder in Aid of Racketeering in violation of 18 U.S.C. §
1959(a)(l). All his codefendants pleaded guilty, and he proceeded to trial. Following
a jury verdict convicting him of all counts, Petitioner was sentenced, on January 14,
2024, principally to a mandatory term of life imprisonment (Pet. App. 61a).
Petitioner appealed his conviction and sentence to the Second Circuit Court
of Appeals, which issued a summary order of affirmance on February
3, 2026.
Thereafter, on March 11, 2026, the Second Circuit denied Petitioner's Petition for
Rehearing En Banc.
2
B. Factual and Procedural Background
The trial centered on the charges relating to the murder of Sean Peart, a
member of the Real Ryte gang. Petitioner testified and admitted that he killed Peart,
saying he did so to avenge the murder of his twin brother Melly and also because he
believed that if he didn't kill him, Peart and his fellow gang members would
eventually kill Petitioner. Here we summarize the facts in the light most favorable to
the government and discuss in greater detail the facts specifically relevant to each of
the two grounds for certiorari in their corresponding points below.
Viewed in the light most favorable to the government, the 5-9 Brims - which
was the "enterprise" named in the Indictment - is a set of the national Bloods gang
involved in various crimes, including drug dealing, fraud, and violence. Petitioner
and his twin brother Melly were 5-9 Brim members and also were members of the
Breadgang, which Melly founded. Melly was murdered October 14, 2015, because one
or more members of the Real Ryte gang- which also had been affiliated with the 5-9
Brims - believed that Melly had aligned himself with the rival "Folk Nation" gang.
After his brother's murder, Petitioner embarked on a focused effort to determine
who killed his brother and came to believe the responsible party was Real Ryte
member Sean Peart. Acting alone, Petitioner killed Peart on December 19, 2015, as
Peart sat in a car across from 1625 Dean Street, where Petitioner had spent the night
with his cousin and others. The defense, in opening statement, acknowledged that
Petitioner killed Peart, but maintained he did so purely for personal - rather than
enterprise-related-
reasons, a position Petitioner would later repeat in his testimony.
3
The government's case was introduced largely through the testimony of two
cooperating
witnesses,
Marcus
Laborde and Khalif Watson,
as well as the
introduction of various social media posts by 5-9 Brim members and others. Also
introduced were the lyrics of several songs Petitioner wrote in the aftermath of Melly
and Peart's murder. Although Marcus Laborde, the government's main witness,
testified on direct examination that Petitioner was a member of the 5-9 Brims, a gang
whose credo Laborde testified was "you kill my dog I kill your cat" or "murder for
murder," Laborde acknowledged on cross-examination that Petitioner in fact was not
at all loyal to the 5-9 Brims, but rather was loyal to his friend "Sherrod," who at that
point was not a 5-9 Brim.
Additionally, there was evidence that Petitioner associated himself far more
with the gang his brother Melly founded - Breadgang - than with the 5-9 Brims.
Concerned that the jury might find that Petitioner was motivated to kill Peart in part
by his association with Breadgang and not the 5-9 Brims (the enterprise named in
the Indictment), the government, throughout its examination of its two cooperating
witnesses used the made-up nickname "5-9 Brims of Marlboro" as a substitute for
"Breadgang,"
in order to create in the jurors' minds an association between
Breadgang and the 5-9 Brims.
The defense case consisted of Petitioner's testimony and that of Ed McCarthy,
who was member of a "Fresh Air Fund" family with which Petitioner spent many
summers and with whose family he continued to maintain a close friendship (Ed
McCarthy: 1725-17 4 7); see also Doc. 581-1, Petitioner's Sent. Memo Exhibit A, at 7-
4
12 (sentencing letters submitted by McCarthy family). 3 Petitioner explained in detail
his relationship with his brother Melly, his obsession with avenging Melly's murder,
and his singularly personal decision to kill Peart.
As noted in the Questions Presented, above, and in the Reasons for Granting
the Petition, below, the defense requested a "theory of defense" instruction, that the
jury was required to find that Petitioner's association with the 5-9 Brims was a
"substantial
motivating factor" for his killing of Sean Peart. The district court
declined to give the instruction and instead told the jury it should acquit Petitioner
if it found he "was not motivated at all by the desire to gain entrance to, or maintain
or increase his position in, the enterprise, but was motivated only by other factors."
Additionally, the court interrupted
defense counsel's summation to require
him to purge his summation and his slide deck of any criticism of the government,
after counsel argued that the government had used the made-up term "5-9 Brims
from Marlboro" in a "sneaky" attempt to "train" the jurors to associate Breadgang
with the 5·9 Brims. The court explained, "I'm not allowing you to make that argument
to impugn or attack the government." (Tr. 1921); (Pet. App. 82a).
a
Unless otherwise noted, citations to ''Doc." are to the docket of the district court proceedings.
5
REASONS FOR GRANTING THE WRIT
I.
(a) The Second Circuit erroneously and irrationally ruled that the district
court's jury instruction to acquit only if Petitioner "was not motivated at all''
by an enterprise-related, would not have wrongly permitted conviction if the
jury believed Petitioner's enterprise-related
motive was de minimis; (b) The
district court's instructional error could not have been harmless beyond a
reasonable doubt where there was substantial evidence that Petitioner had no
gang-related motive for the killing, and where the trial judge admitted that if
she gave an instruction consistent with the law the jury might acquit; and (c)
the Second Circuit, by citing no support for its harmless error finding, failed
in its obligation to provide this Court a record sufficient to permit meaningful
review.
Because the 5-9 Brims was the enterprise
named in the indictment,
the
government was obliged to prove that Petitioner killed Sean Peart to maintain or
increase his position in the 5-9 Brims. Petitioner testified that his decision to kill
Peart was entirely personal and unrelated to any association he had with the 5-9
Brims, and he argued both at trial and on appeal that there was no evidence
supporting the contrary conclusion. But assuming arguendo there was such evidence,
there undeniably was, at the least, substantial evidence to the contrary.
In particular, principal government cooperator Marcus Laborde, who had been
the 5-9 Brims "godfather," testified that Petitioner had no loyalty at all to the 5-9
Brims (Tr. 734). He followed none of 5-9 Brims' rules, didn't take orders from the
leadership, didn't attend meetings, didn't "kick up" to the leadership, and didn't
contribute money to incarcerated members (651-53). Further, there was no evidence
Petitioner told anyone in the gang that he intended to kill Peart before he did so, and
he sought no advantage within the gang for having done so. Further, when Petitioner
- a rapper - wrote and rapped about the killing he did so in purely personal terms,
6
never suggesting he was motivated to do so by his association with the 5-9 Brims.
When asked about conversations with Petitioner about the murder, both cooperating
witnesses recounted that Petitioner was emotional and cited the death of his brother
as his reason for killing Peart. (Tr. 521, Laborde: Petitioner
"had an emotional
breakdown and he was saying things like miss my brother, he had to go, I had to do
it."); (Tr. 1005, Watson: Petitioner said, "They took my baby boy" - i.e., Melly adding, while making a gun gesture, "I did boy dirty for that, I did boy dirty for that.")
Given this evidence, Petitioner asked the court to instruct the jury that the
government was required to prove that Petitioner's gang-related motivation to kill
Peart was "substantial," or one "integral" to Petitioner's
association with the 5-9
Brims. Otherwise, he said, the jury could find the motive element satisfied even if his
enterprise-related
motive was de minimis, even vanishingly small. This request, said
counsel, was supported by both the legislative history of section 1959 and by
abundant case law within and without the Second Circuit. (Pet. App. 74a-76a).
The district court, acknowledging that the language quoted above had been
used in the case law, opined that the proper instruction was nonetheless subject to
"reasonable
debate" (1826); (Pet. App. 78a), and refused to give the requested
instruction, fearful that it might result in acquittal. Specifically, the court said,
I think there's a possibility that a jury might find that it [i.e., the
5-9 Brims] was a motive but maybe not the substantial motivating
factor; and if the law allows the government to win its case that way
[i.e., by refusing to give the requested instruction], I think that that's
how I should instruct them, so as not to essentially put my finger on the
scale in terms of the jury's verdict.
7
(1821); (Pet. App. 73a). The district court instructed the jury consistent with its draft
instructions
(2125-26), telling the jury Petitioner could avoid conviction if he "was
not motivated at all," by his association with the 5-9 Brims:
If, however, you find that the defendant was not motivated at all by the desire
to gain entrance to, or maintain or increase his position in, the enterprise, but
was motivated only by other factors, then you cannot find him the [sic] guilty
of this count.
Tr. 2126.
The Second Circuit Panel's Summary Order does not decide whether the
district
court's jury instruction
"substantial"
on motive was deficient for not including the
and/or "integral" language requested by defense counsel, but rather
concludes, in conclusory form and in the alternative, that "We doubt the instructions,
when taken as a whole, allow the jury to convict Pippins on this count even if his
enterprise motivation was incidental or insubstantial.
But we conclude based on the
trial record that any error arising from the statement that he must be acquitted ifhe
was 'not motivated at all' by an enterprise purpose was harmless." Um"ted States v.
Pippins, No. 25-154, 2026 WL 277682, at *3 (2d Cir. Feb. 3, 2026); (Pet. App. 8a).
Discussion
The Second Circuit's decision did not disavow its case law holding that the
enterprise-related
motive must be "substantial" or "integral'' but rather concluded
that the instruction, as given, could not have been interpreted to permit conviction
upon the jury's finding of a de minimis enterprise-related
motive. It further held that,
in any event, any error was harmless. We respectfully ask this Court to not let stand
8
a murder conviction that resulted from unquestionably
prejudicial instructional
error, which the Second Circuit has papered over with an unpublished opinion that
bears no resemblance to the actual facts of the case and which finds harmless error
with no analysis at all, and contrary to the district court's stated concern that the
requested instruction might result in acquittal.
A. Petitioner was entitled to an instruction incorporating the "substantial
motivating factor'' or "integral aspect of membership" language.
As early as 1992, in United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992),
the Second Circuit endorsed
the "integral
aspect of membership"
language.
Commenting on the meaning of§ 1959's element requiring that the defendant act for
the purpose of "maintaining or increasing position in" the enterprise, it explained
that the legislative history contains no indication that Congress meant to require
proof that self-promotion within the enterprise was the defendant's only or primary
concern. However, said the court, the defendant must be shown to have committed
the charged conduct "as an integral aspect" of his association in the enterprise:
the history states that this phrase was included as a means of proscribing
murder and other violent crimes committed "as an integral aspect of
membership" in such enterprises. S. Rep. No. 225, at 304, reprinted in 1984
USCCAN at 3483.
United States v. Concepcion, 983 F.2d at 381 (emphasis added). Applying Concepcion
and other cases, the Second Circuit in United States v. White, 7 F.4th 90 (2d Cir.
2021) explained the same instruction proposed by Petitioner was "consistent with this
principle."
White, 7 F.4th at 102. In the next sentence, the Second Circuit excerpted
the instruction approved in White:
9
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 factor in the
defendant's decision to participate in the attempted murder and/or the
assault with a deadly weapon.
Id at 97 (emphasis added). The Second Circuit then said, "[Defendant] does not claim
here that it erred in doing so.") Id Petitioner requested the district court deliver the
same instruction given in White. (Pet. App. 67a).
Other circuit courts have held similarly. For example, m United States v.
Banks, 514 F.3d 959, 968 (9th Cir. 2008), the Ninth Circuit rejected a rule that would
find sufficient an enterprise-related
motive "no matter how incidental. ... " See also
United States v. Hackett, 762 F.3d 493, 500 (6th Cir. 2014) (rejecting presumption
that gang members are always motivated to some extent by gang status, because
"[o]therwise, in gang cases, the purpose element would be merely a tautology" and
finding, consistent with Banks, that "VICAR's 'purpose' element is met if the jury
could find that an 'animating purpose' of the defendant's action was to maintain or
increase his position in the racketeering enterprise."); United States v. Fie], 35 F.3d
997, 1004 (4th Cir.1994) (relying on§ 1959 legislative history and United States v.
Concepcion, supra, court explains "violent crimes committed as an integral aspect of
membership in such enterprises"); United States v. McClaren, 13 F.4th 386, 406 (5th
Cir. 2021) ("the statute does criminalize violent acts committed as an integral aspect
of membership in a racketeering enterprise."); United States v. Kamahele, 748 F.3d
984, 1008 (10th Cir. 2014) (approving "integral aspect"
10
language, citing United
States v. Concepcion, supra); United States v. Heilman, 377 F. App'x 157, 207 (3d Cir.
2010) (adopting "integral aspect" formulation).
Congress's intention to require that the defendant's enterprise-related
motive
be "substantial" or an "integral aspect of' the defendant's association to the named
enterprise,
as reflected in the above-cited legislative history and case law, likely
reflects, at least in part, a concern to not further dilute the jurisdictionally-focused
interstate
nexus requirement
established by the definition of "enterprise," 4 which
generally is satisfied by proof establishing even a de minimis effect on interstate
commerce. United States v. Riddle, 249 F.3d 529 (6th Cir. 2001); United States v.
Garcia, 74 F.4th 1073 (10th Cir. 2023). Authorizing conviction, as did the trial court,
upon a finding that the defendant's enterprise-related
exponentially
interstate
reduces
the requirement
that
motivation was de minimis
the defendant's
activities
commerce. 5 At some point the required effect on interstate
affect
commerce
becomes virtually non-existent.
4
18 U.S.C. § 1959(b)(2) provides:
"enterprise" includes any partnership, corporation, association, or other legal entity, and any
union or group of individuals associated in fact although not a legal entity, which is engaged in,
or the activities of which affect, interstate or foreign commerce.
This is so in the sense that, say, a 10% likelihood of an event is reduced to a 1% likelihood if
the event's occurrence is also dependent on a second variable which itself has a 10% likelihood of
occurring.
5
11
B. The panel's doubt that the instructions "when taken as a whole, allowed
the jury to convict Petitioner . . . even if his enterprise motivation was
'incidental or insubstantial" enjoys no support in the record.
The panel's Summary Order briefly summarizes the district court's motivation
instruction but does not acknowledge that it was error for failing to incorporate the
"substantial motivating factor" or "integral aspect of membership" language. Rather,
the panel concludes, "We doubt the instructions, when taken as a whole, allow the
jury to convict Pippins on this count even if his enterprise motivation was incidental
or insubstantial."
(Pet. App. 8a).
The Second Circuit finding that the trial court's motivation instruction would
not have allowed the jury to convict Petitioner based on a finding that his enterprise·
related motivation was "incidental or insubstantial" enjoys no support in the record,
and the panel cites none. On the contrary, how else could the jury have interpreted
the instruction that it must acquit if it found Petitioner "was not motivated at all'' by
an enterprise-related
purpose. Indeed, the district judge acknowledged she was
omitting the "substantial" and "integral'' language - even though accurate - precisely
so the jury could convict should it find that Petitioner's
minimis.
Petitioner's
gang motivation was de
(Tr. 1821) (Pet. App. 73a). Given the court's failure to require that
motivation be a "substantial
motivating factor" or "integral," and its
instruction to acquit if Petitioner "was not motivated at all" by an enterprise-related
purpose, the instructional error is incontrovertible and the Second Circuit's finding
that the jury would not have read the instruction to permit conviction upon evidence
of a de minimis enterprise motivation is irrational.
12
C. The Second Circuit's conclusion that any error was "harmless" is equally
unsustainable.
Also unsustainable
is the Second Circuit panel's unadorned conclusion that
"any error arising from the statement
that he must be acquitted if he was 'not
motivated at all' by an enterprise purpose was harmless." This finding not only enjoys
no support in the record but also is directly contrary to the district judge's candid
acknowledgement that she was omitting the "substantial" and "integral'' language
precisely so the jury could convict should it find that Petitioner's gang motivation
was de minimis. Tr. 1821 (Pet. App. 73a) ("I think there's a possibility that a jury
might find that it was a motive but maybe not the substantial motivating factor; and
if the law allows the government to win its case that way, I think that that's how I
should instruct them .... ").
The district judge, who of course sat through the testimony and was in a far
better position than the appellate panel to assess the weight of the evidence,
understood that substantial evidence supported the conclusion that Petitioner had no
enterprise-related
that
motivation to kill Sean Peart. In addition to his own testimony
his motivation was personal,
the record -
government cooperating witness Marcus Laborde -
including the testimony
of
is replete with evidence that
Petitioner had no loyalty at all to the 5-9 Brims; Laborde, the 5-9 Brims' "godfather,"
testified Petitioner had no loyalty at all to the 5-9 Brims (Tr. 734). He followed none
of 5-9 Brims' rules, didn't take orders from the leadership, didn't attend meetings,
didn't "kick up" o the leadership,
and didn't contribute money to incarcerated
13
members (651-53). Laborde likewise testified that Petitioner's related to him that his
motive to kill Peart was personal:
Q When you got out of jail after S. Dot [i.e., Peart] was murdered, did you
have any conversations with Mukk [i.e., Petitioner]?
A Yes.
Q What did you guys discuss in those conversations?
A It was just regular talking, we was in our car and smoking and he just
had an emotional breakdown and he was saying things like miss my
brother, he had to go, I had to do it.
(521).
D. The Second Circuit's harmless error analysis was insufficient to permit
meaningful review by this Court.
This case rose and fell on whether Petitioner's motive - his intent-
was to
gain or increase his position within the named enterprise, the 5-9 Brims. Nothing
else was at issue because Petitioner admitted to the murder. But, as explained above,
there was abundant evidence -which
even the district court acknowledged-that
Petitioner's enterprise-motive was not a substantial motivating factor. The Second
Circuit's barebones and cryptic harmless error analysis was insufficient under this
Court's precedent to permit meaningful review by this Court.
In 1985, this Court explained, "The primary task of this Court upon review of
a harmless-error
determination by the court of appeals is to ensure that the court
undertook a thorough inquiry and made clear the basis of its decision." Francis v.
Franklin, 471 U.S. 307, 326, n. 10 (1985). Likewise, in Neder v. United States, 527
U.S. 1 (1999), where the Court held that instructional error omitting an element of
an offense might be harmless, it warned that "safeguarding the jury guarantee will
14
often require that a reviewing court conduct a thorough examination of the record."
Id at 19. Consistently,
where this Court could not decipher the lower court's
reasoning for its finding of harmless error, or its finding was contradicted by the
emphasis placed on the contested issue in the lower court proceedings, remand is
necessary for a more searching inquiry. See Sochor v. Florida, 504 U.S. 527, 541
(1992) (O'Connor, J., concurring) ("An appellate court's bald assertion that an error
of constitutional
dimensions was 'harmless'
cannot substitute
for a principled
explanation of how the court reached that conclusion."), citing Clemons v. Mississippi,
494 U.S. 738 (1990) (where, explained Justice O'Connor in Sochor, this Court "did
not hesitate to remand ... for 'a detailed explanation based on the record"' because
"the lower court failed to undertake an explicit analysis supporting its 'cryptic,' onesentence conclusion of harmless error.").
Here, the Second Circuit has provided this Court no means to review the
propriety of its harmless error determination, which apparently rejected the district
court's finding that giving the requested instruction would create "a possibility that
a jury might find that it was a motive but maybe not the substantial
motivating
factor." This is precisely the type of "cryptic" decision that required remand in
Clemons.
***
Thus, there can be no doubt that the trial court erred in not giving the
requested instruction
and in giving a contrary one, and that the error was not
harmless. This Court should grant certiorari not only because Petitioner was denied
15
a fair trial for which he is wrongly serving a sentence of life imprisonment but also to
confirm that when an appellate court concludes that any error is harmless it at least
provide some analysis sufficient to permit meaningful review by this Court. This is
particularly so where, as here, the district court candidly acknowledged its concern
that Petitioner might be acquitted were the requested instruction to be given. 6
II. Was the trial court's order contrary to this Court's jurisprudence by
establishing two sets of rules: one that permits sharp government criticism of
defense counsel, and another that shields the government from similar,
justified scrutiny.
As this Court stated in 1975, "There can be no doubt that closing argument
for the defense is a basic element of the adversary factfinding process in a criminal
trial." Herring v. New York, 422 U.S. 853, 858 (1975). This Court was not breaking
new ground in announcing this rule:
The widespread recognition of the right of the defense to make a closing
summary of the evidence to the trier of the facts, whether judge or jury,
finds solid support in history. In the 16th and 17th centuries, when
notions of compulsory process, confrontation, and counsel were in their
infancy, the essence of the English criminal trial was argument between
the defendant and counsel for the Crown.
XXX
It can hardly be questioned that closing argument serves to sharpen and
clarify the issues for resolution by the trier of fact in a criminal case. For
it is only after all the evidence is in that counsel for the parties are in a
position to present their respective versions of the case as a whole. Only
then can they argue the inferences to be drawn from all the testimony,
and point out the weaknesses of their adversaries' positions. And for the
defense, closing argument is the last clear chance to persuade the trier
6
The Bureau of Justice Statistics reports 2,453 § 1959 prosecutions between 2013 and 2023.
16
of fact that there may be reasonable doubt of the defendant's guilt. See
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
Id at 860-62.
To convict Petitioner of murder in aid of racketeering, the government was
required to prove that he killed Sean Peart at least in part to maintain or increase
his position in the 5-9 Brims, the enterprise identified in the indictment. Substantial
evidence, however, supported the conclusion that, if Petitioner was loyal to any gang,
it was not the 5-9 Brims but rather the Breadgang - a partying and scamming gang
founded by his murdered twin brother Melly. Although many of the Breadgang
members were also members of the 5-9 Brims and lived in Brooklyn's Marlboro
housing complex, the Breadgang had many members who were not 5-9 Brims and
who, rather, were members of rival gangs. In fact, the government's own cooperating
witness, Marcus Laborde, testified that the Breadgang was not part of the 5-9 Brims
but rather was associated with the rival Folk Nation (Tr. 667·69). And the evidence
further supported the conclusion that Petitioner's murdered brother Melly had been
more associated with the Breadgang-which
he founded-than
with the 5·9 Brims.
In short, there was a powerful argument that the government had identified
the wrong gang as the one to which Petitioner was loyal, and which may, in part,
have provided him a motive to kill Sean Peart. The government therefore needed to
find a way to "train" the jury to associate the Breadgang with the 5-9 Brims, so if the
jury determined that Petitioner was motivated to kill Sean Peart by his-Petitioner's
17
-
association with the Breadgang, it could nonetheless convict him on the theory
that Breadgang was a "set" of the 5-9 Brims.
As part of its effort to "train" the jury to associate Breadgang with the 5-9
Brims, the government concocted the phrase "5-9 Brims from Marlboro" as a synonym
for "Breadgang," thereby creating a semantical association between the two gangs.
Thus, when it questioned its cooperators, Marcus Laborde and KhalifWatson,
about
the Breadgang, it did not use that gang's actual name but rather referred to the
Breadgang as the "5-9 Brims from Marlboro," asking the witnesses questions such as:
•
Q How is committing acts of violence like the shootings you just described
looked at by the 5-9 Brims from Marlboro (349).
•
Q Did people within the 5-9 Brims from Marlboro talk about crimes that other
members of the gang committed? (350).
•
Q Did people within the 5-9 Brims from Marlboro talk about crimes that other
members of the gang committed? (350).
•
Q I want to talk now about some of the other members of the 5-9 Brims from
Marlboro. (392).
•
Q Was he part of your group of 5-9 Brims from Marlboro? (411).
•
Q Other members of 5-9 Brims from Marlboro? (424).
•
Q Did she ever hang with members of 5-9 Brims from Marlboro? (450).
•
Q Did other members of the 5-9 Brims from Marlboro go to her baby shower?
(451).
•
Q Did Melly's death have an impact on the 5-9 Brims from Marlboro? (513).
•
Q Aside from Sdot and Melly's murder, do you know of any other shootings
between the 5-9 Brims from Marlboro and Real Ryte? (537).
18
As cooperator Laborde testified, however, he had never heard Breadgang
referred to as the "5-9 Brims from Marlboro" until the government used that term.
(Tr. 643: "Q.So, as a matter of fact, prior to this case, had you ever used [the] term 59 Brims of Marlboro to refer to Bread Gang? A No. Q. That's not your term; right? A
No. Q. That's Government's term? A Correct.")
Counsel asked the trial court to give a theory-of-defense instruction stating, in
sum and substance, that the 5-9 Brims was the enterprise named in the indictment
and if the jury found that Petitioner was motivated to kill Sean Peart by his allegiance
to the Breadgang, it must acquit unless it found Breadgang was part of the 5-9 Brims.
See Doc. 473 (proposed instruction). The trial court refused to give this instruction,
stating the parties could argue in summation whether Breadgang was part of the 59 Brims (1410, 1412).
Given what defense counsel considered the government's devious use of the
made-up moniker "5-9 Brims from Marlboro" counsel criticized its use during
summation as a "sneaky" effort to "train" the jury to associate the Breadgang with
the 5-9 Brims. The government objected to counsel's argument and related slides. The
court agreed, criticizing defense counsel in the jury's presence, saying, "the titling of
this is inappropriate. I'm telling the jury that. I reject your notion that you are going
to argue in any way that the government is 'training
the jury.' That's not an
appropriate argument." (Tr. 1919-20); (Pet. App. 80a-81a). Outside the presence of
the jury, the court continued, "Do not impugn the integrity of the government as if
they're trying to pull a fast one .... I'm not allowing you to make that argument to
19
impugn or attack the government." (Tr. 1921) (Pet. App. 82a); id at 1922, (Pet. App.
83a) ("Talk about the evidence but do not impugn the motive of the government."); id
at 1924 (Pet. App. 85a) ("I understand but I don't want you to make that point, to
attack the government as if they're trying to fool the jury or manipulate them or
somehow sending them into a trance of some kind that they just accept this
characterization.
Argue the evidence but do not impugn the government based on
how they phrased a simple preposition.") The court then required counsel to take a
20-minute break to purge his argument and slides of any criticism of the government.
(1925-26); (Pet. App. 86a-87a). Counsel did as he was ordered.
On appeal, defense counsel argued the district court committed reversible error
when it interrupted defendant's closing argument and required him to delete all his
PowerPoint slides that argued the government invented the phrase "5-9 brims of
Marlboro" in a "sneaky" effort to "train" the jury to make an unsupportable
association between the charged enterprise - the "5-9 brims" - and the Breadgang,
which was not named in the indictment. The panel rejected this argument, stating
simply:
Though lawyers are sometimes given leeway, erroneously or not, to make
somewhat inflammatory comments about opposing counsel, the Supreme
Court has instructed district courts not to allow such mudslinging. United
States v. Young, 4 70 U.S. 1, 9 (1985) ("Defense counsel, like [the government],
must not be permitted
to make unfounded
and inflammatory
attacks on the opposing advocate."). The court acted within its discretion in
prohibiting Pippins from accusing the government of "training" the jury.
United States v. Pippins, 2026 WL 277682, at *3 (2d Cir. Feb. 3, 2026); (Pet. App.
l0a-lla).
20
Discussion
The panel's decision was erroneous. The Second Circuit and numerous other
courts routinely affirm the government's strident attacks on defense counsel during
summation,
often made during rebuttal
summation
when defense counsel can't
respond. The case law permits the government to argue in summation that defense
counsel's summation arguments were "smoke and mirrors" (Rodriguez v. Morris, No.
CV-19-04957-PHX-GMS, at *17-18 (D. Ariz. May 17, 2021)); or that defense counsel
was lacking "common decency" and "'made up' testimony'' (United States v. Salameh,
152 F.3d 88, 138 (2d Cir. 1998)); or that "the defense is attempting to trick the jury"
( United States v. August, 984 F.2d 705, 715 (6th Cir. 1992)); or that "the defense
lawyer pulled out 'these inconsistencies like a magician pulls rabbits out of his hats,'
such that he was trying to 'trick' the jury by presenting 'illusions."' (Lindgren v. Lane,
925 F.2d 198, 204 (7th Cir. 1991)); or that the defense theories were "nonsense" and
that the defense's opening statement "attempt[ed] to manipulate you, to play on our
emotions, and to distract you from what this case is actually about" (United States v.
Fox, 761 F. App'x 765, 768 (9th Cir. 2019) ("Criticism of defense theories and tactics
is a proper subject of closing argument.") (citations omitted)); or that the defense case
"was a total sideshow." United States v. Rainford, 110 F.4th 455, 474 (2d Cir. 2024).
"[S]uch comments
are usually
not improper
because
the
prosecution
'necessarily has wide latitude during closing argument to respond to the defense's
strategies, evidence and arguments." Davis v. Nape], No. 2:14-cv-10019, at *22·23
(E.D. Mich. Feb. 29, 2016), quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir.
21
2009); see also Salameh, 152 F.3d at 139, supra ("Attorney Campriello also remarked
that the weakness of the government's evidence required the prosecutors to 'do a little
slipping and sliding, a little bobbing, weaving, a little zigging and zaggin[g] as the
case developed.' In light of Attorney Campriello's criticisms, the government was
entitled
to respond with similar language
in rebuttal.'').
And 1therefore,
the
prosecution is "permitted to comment on the defense's trial strategy" during closing.
Slagle v. Bagley, 457 F.3d 501, 522 (6th Cir. 2006). "Moreover, a prosecutor is not
required to use the most benign terminology or avoid reasonable descriptions of the
events in question. One of the purposes of the closing argument is to persuade the
jury not to buy into the opposing party's theory of his case." Robertson v. Simpson,
No. 5:05CV-239-R, 2011 WL 3880940, at *14 (W.D. Ky. Sept. 2, 2011) (cleaned up,
emphasis added).
The Second Circuit in particular has countenanced a broad range of hardhitting rhetorical flourishes, even during the government's rebuttal summation. See
e.g., United States
v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) (government's
reference to the "misrepresentations
appropriate
response
and sheer inventions" of defense counsel was
since defense counsel made several
statements
during
summation which led the judge to reprimand him for statements which compared the
government's
investigatory
tactics
to "Hitler's
Germany");
United States
v.
Praetorius, 622 F.2d 1054, 1060-61 (2d Cir. 1979) (holding that defense counsel's
accusations of a "frame up" or attempt to "dupe" the jury, "rendered quite proper the
relatively mild response of the Assistant United States Attorney" in criticizing the
22
defense counsel's attacks on the integrity of the government's case and the good faith
of the government's agents, witnesses, and prosecutorial staff). In United States v.
Marrale, 695 F.2d 658, 667 (2d Cir. 1982), the Second Circuit stated that the
prosecution's comments in direct response to defense counsel's arguments
were
provoked by a "permissible desire to dispute defense histrionics."
United States v. Young, 470 U.S. 1 (1985), cited by the Second Circuit panel,
does not support the panel's holding. There, defense counsel intimated that the
prosecution deliberately withheld exculpatory evidence, and pointed directly at the
prosecutor's table stating, "I submit to you that there's not a person in this courtroom
including those sitting at this table who think that Billy Young intended to defraud"
the alleged victim. Counsel also argued that defendant had been "the only one in this
whole affair that has acted with honor and with integrity" and told the jury "[t]hese
complex [Department of Energy] regulations should not have any place in an effort
to put someone away."
Thus, counsel in Young alleged government wrongdoing with no evidentiary
support; claimed - irrelevantly and wrongly - that the prosecutors did not personally
believe the defendant was guilty and purported to instruct the jury that certain
Department of Energy regulations should be disregarded.
In the instant case, defense counsel did nothing analogous, but instead rightly
criticized the government for its substitution of a totally fabricated nickname for
Breadgang as a sneaky effort to train the jury to associate the Breadgang with the 59 Brims.
23
The trial court's wrongful conduct was not harmless. Courts permit such
focused argument because "One of the purposes of the closing argument is to persuade
the jury not to buy into the opposing party's theory of his case." Robertson v. Simpson,
No. 5:05CV-239-R,2011 WL 3880940, at *14 (W.D. Ky. Sept. 2, 2011) (cleaned up).
That is precisely what Petitioner's counsel was endeavoring to do: persuade the jury
to reject the government's arguments that Petitioner was a loyal member of the 5-9
Brims who acted in concert with that enterprise to commit the charged enterpriserelated offenses. If the jury agreed the government was using sneaky tactics to train
the jurors by using the term "5-9 Brims of Marlboro," counsel hoped the jury would
question other of its arguments as well. The court's order foreclosed such argument
by counsel, relegating him to arguments that merely pointed out the government's
use of that phrase without the power of argument that the government was being
sneaky and couldn't be trusted.
Additionally, the district court's actions interrupted counsel during a critical
part of his argument, causing a lengthy hiatus while counsel obeyed the court's order
to sanitize his slides and argument. The court also disparaged counsel in front of the
jury,
telling
"inappropriate"
the jurors
that
and instructing
counsel's
slide using
the term
"sneaky"
was
the jury to "disregard this slide title and any
suggestion somehow that the Government has done anything improper or is any way
trying to train you." (Tr. 1919). What began, therefore, as proper criticism of the
government, ended with unfair criticism of defense counsel.
24
The district court's rulings worked an obvious unfairness on Petitioner. It also
provides good cause for this Court to clarify whether there are two sets of rules at
play during summation -
one for the government, where anything goes, and the
other for the defense, which may not so much as criticize the government.
CONCLUSION
Marvin Pippins admitted he killed Sean Peart because he believed Peart was
responsible for his twin brother Melly's murder and because he believed Peart or his
associates would eventually target him as well. But his conduct was a federal crime
only if his enterprise-related
motive was a "substantial" one or one "integral" to his
position in the enterprise, ie., the 5-9 Brims.
The trial judge, however, refused to instruct
the jury to include the
"substantial" and/or "integral" requirement, for no other reason than that doing so
might
catalyze
acquittal.
The judge thereafter
disrupted
defense
counsel's
summation and criticized him in the jury's presence, ordering him not to impugn the
prosecutors'
integrity
by making an entirely proper argument
regarding
the
government's use of a concocted nickname for the Breadgang to train the jury to
associate Breadgang with the 5-9 Brims.
Thereafter, on appeal, the Second Circuit panel, in its Summary Order,
affirmed Petitioner's conviction, ruling with no record support that the trial court's
erroneous motive instruction could not have been interpreted by the jury to mean
precisely what it said- and was intended to say- and that any error was harmless,
when the erroneous instruction
was given explicitly to avoid the possibility of
25
acquittal, which the trial court recognized would have been a distinct possibility for
a properly instructed jury.
In short, the trial was rigged against Petitioner. He had no chance.
We respectfully ask the Court to grant certiorari to right the blatant wrong
that was done in this case and to (1) clarify the proper motive instruction that should
be given in a § 1959 case, and (2) instruct the lower courts that we don't play by two
sets of rules on summation, one for the government and the other for the defense. In
the alternative
we ask the Court to remand to the Second Circuit for further
consideration of its harmless error analysis.
Dated: July 9, 2026
Richard ev1tt
Zachary Segal
Levitt & Kaizer
40 Fulton Street, 17th Floor
New York, New York 10038
(212) 480-4000
Attorneys for Petitioner
Marvin Pippins
26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.