Appendix — Pagan v. United States

APPENDIX A

UNITED STATES OF AMERICA, Appellee, v. RUBEN

FELICIANO, a/k/a Rude Dog, a/k/a Roob Dog, Ronald Pagan,

a/k/a Twin, and NELSON GONZALEZ, a/k/a Snoop,

Defendants-Appellants.

Docket Nos. 99-1289, 99-1290, 99-1318

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

223 F.3d 102; 2000 U.S. App. LEXIS 20930.

June 9, 2000, Argued

August 16, 2000, Decided

SUBSEQUENT HISTORY: As Amended September 29,

2000.

PRIOR HISTORY: Appeal from judgments of conviction

entered by United States District Court for the District of

Connecticut (Peter C. Dorsey, Senior Judge), after a jury found

defendants-appellants Ruben Feliciano, Ronald Pagan, and

Nelson Gonzalez guilty of murder and conspiracy to commit

murder under 18 U.S.C. § 1959. The jury also found Feliciano

guilty of using and carrying a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and

(2), and found Pagan guilty of aiding and abetting Feliciano in

the commission of that offense. Defendants-appellants

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challenge their convictions on the ground that the district court

erred in its conduct of voir dire and because of prejudicial

comments made in the prosecutor's rebuttal summation. In

addition, they raise several challenges particularly directed to

their convictions under 18 U.S.C. § 1959, and Gonzalez raises

a challenge to his sentence.

DISPOSITION: Affirmed.

COUNSEL: Karen L. Peck, Assistant United States Attorney

(Stephen C. Robinson, United States Attorney for the District

of Connecticut, Anthony E. Kapian, Assistant United States

Attorney, of counsel), for Appellee.

Michael O. Sheehan, Sheehan & Reeve, New Haven, CT, for

Appellant Ruben Feliciano.

John W. Mitchell, New York, NY, for Appellant Ronald Pagan.

Steven M. Statsinger, Legal Aid Society, Federal Defender

Division, New York, NY, for Appellant Nelson Gonzalez.

JUDGES: Before: STRAUB and KATZMANN, Circuit Judges,

and HODGES, * District Judge.

* The Honorable Wm. Terrell Hodges, Senior Judge,

United States District Court for the Middle District of

Florida, sitting by designation.

OPINION BY: KATZMANN

OPINION:

KATZMANN, Circuit Judge:

Defendants-appellants Ruben Feliciano ("Feliciano"), Ronald

Pagan ("Pagan"), and Nelson Gonzalez ("Gonzalez") appeal

from judgments of conviction entered by the United States

District Court for the District of Connecticut (Peter C. Dorsey,

Senior Judge). At trial in January and February of 1999,

Feliciano, Pagan, and Gonzalez, members of a gang known as

Los Solidos, were found guilty by a jury of conspiring to

murder and murdering 16-year old fellow member Edwin

Ramos, in violation of 18 U.S.C. § 1959. Feliciano and Pagan

were also found guilty of firearms offenses, in violation of 18

U.S.C. § 924 (c)(1) and (2). On this appeal, appellants do not

challenge the sufficiency of the evidence as to their

participation in this execution-style murder. Instead, their

challenges relate primarily to the fact that their prosecution was

conducted by federal, rather than State, authorities under a

federal statute, 18 U.S.C. § 1959, which allows federal

authorities to prosecute violent crime when those allegedly

responsible participated in the violent crime in order to gain,

maintain, or increase a position in an enterprise engaged in

racketeering activity. See 18 U.S.C. § 1959.

Defendants-appellants claim that the district court erred (1) by

conducting portions of voir dire outside their hearing; (2) in

instructing the jury that under § 1959, Los Solidos' activities

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need only have had a minimal effect on interstate or foreign

commerce; and (3) by admitting allegedly improper testimony

by law enforcement agents. Defendants-appellants also claim,

inter alia, (4) that the evidence at trial was insufficient to show

that Los Solidos engaged in racketeering activity, as required by

§ 1959; (5) that the prosecutor made certain improper and

highly prejudicial comments in her rebuttal summation; and (6)

that the district court misunderstood its sentencing authority

under § 1959. In addition, (7) defendants-appellants for the

first time on appeal raise several constitutional challenges to §

1959. We find claims | through 6 to be without merit, and that

the constitutional claims were waived. Accordingly, we affirm

the district court in all respects at issue.

BACKGROUND

On the evening of March 24, 1997, Feliciano, Pagan, and

Alex Rivera, members of the Meriden, Connecticut chapter of

Los Solidos, a gang with members in Meriden and other

Connecticut cities, drove with fellow member Edwin Ramos,

aged 16, to a cemetery in Meriden. Upon bringing Ramos to

this site, Feliciano, in the morning hours of March 25, shot

Ramos in the head. The company then left Ramos' dead or

dying body on the cemetery grounds. Because of evidence that

the murder was an execution ordered and carried out by

members of Los Solidos, a gang that trafficked in drugs in

several cities in Connecticut, federal authorities sought to

prosecute those allegedly responsible for the murder under 18

U.S.C. § 1959,which prohibits violent crime in aid of

racketeering ("VCAR").

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On September 1, 1998, a federal grand jury sitting in New

Haven, Connecticut, returned a superseding indictment against

Feliciano, Pagan, and Gonzalez. All three were charged in

Count One with conspiring to commit a violent crime (the

murder of Ramos) in aid of racketeering, in violation of 18

U.S.C. § 1959(a)(5), and, in Count Two, with committing a

violent crime in aid of racketeering, and aiding and abetting, in

violation of 18 U.S.C. § 1959(a)(1) and (2). Feliciano and

Pagan were charged in Count Three, respectively, with using

and carrying a firearm during and in relation to a crime of

violence, and aiding and abetting, in violation of 18 U.S.C. §

924(c)(1) and (2).

Trial was held in New Haven before the Honorable Peter C.

Dorsey, Senior United States District Judge for the District of

Connecticut. On J anuary 4, 1999, venire persons were

assembled for possible service with respect to four trials - the

trial for the case at hand, two other criminal trials (one with two

defendants, the other with one defendant), and a civil rights

action brought by a pro se prison inmate. During the selection

process, the venire persons available for these trials were

present together in the same courtroom with the defendants in

the three criminal trials and the inmate plaintiff -- a situation

that caused some concern to the marshals responsible for

security. nl]

nl In the course of the proceedings, the one-defendant

criminal case was disposed of by plea.

During the two days of voir dire, the venire persons were

asked many questions in open court, with all three defendants

in the instant case present from the beginning and throughout,

and able to observe the venire members and hear their

responses. For example, at the beginning of voir dire, the

venire members available for all trials responded orally in open

court to some written questions previously presented to them,

such as: whether they or anyone close to them had been victims

of, or charged with, a crime; whether they had close ties to law

enforcement; and whether they or their families or friends had

a problem with drugs or with police. At the urging of

Feliciano's counsel, the court permitted some of the venire

persons to come to the bench to discuss questions they might

feel uncomfortable discussing in open court, relating to such

matters as personal or family members’ involvement with crime _

or drugs. However, citing security concerns expressed by the

marshals, the court denied Feliciano's counsel's request that the

defendants be allowed to come to the bench to hear these

responses. The district court did, however, permit defense

counsel, who participated in the bench inquiries, to interrupt the

bench questioning at any time in order to consult with the

defendants, should they desire to do so, and to return to the

bench with any additional questions suggested through such

consultation.

When the time came to pick the jury for the civil rights case,

venire persons were asked, among other things, whether they

would give less consideration to a prison inmate, and whether

they had ever made a complaint about law enforcement. When

attention turned to selection of jurors for the case at hand, the

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venire persons were asked, among other things, about: whether

they knew the witnesses or other individuals involved in the

case; whether they had any experiences with law enforcement

agents; their understanding of the presumption of innocence;

their feelings about the Government's possible presentation of

evidence of tape-recorded conversations; their feelings about

the Government's use of informants; whether they could fairly

judge evidence relating to a homicide; their attitudes toward

Hispanics; whether they could fairly judge evidence that might

show that the defendants were members of a gang or were

involved in narcotics activity; whether they had heard of Los

Solidos or of the Latin Kings, a rival gang, and, if so, whether

what they heard would influence their judgment in the case at

hand.

With respect to the question whether they had heard about

Los Solidos, venire members who wished to do SO were

permitted -- again at the urging of Feliciano's counsel -- to

approach the bench and were questioned as before outside the

hearing of the defendants but in the presence of defense

counsel, about what they knew or had heard about Los Solidos.

The district court again told defense counsel that they could

interrupt the bench colloquy to consult with the defendants

about matters revealed at the bench and to put further questions

to the venire persons that might arise from such consultation.

Two persons who eventually served on the jury were among

those who came to the bench and were questioned by the court

and by counsel about what they had read or heard relating to

Los Solidos, and whether any such reports would influence

their judgment in this case.

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Only one other person who served on the jury approached the

bench, and that for the purpose of discussing whether a medical

appointment he had might interfere with service on the jury.

According to the district court, "[the] defendants observed the

process [at the bench] from no more than 15 feet away." At no

time did any defense counsel take advantage of the court's

permission to interrupt the bench colloquy to consult with his

client about information provided by potential jurors at the

sidebar.

At the conclusion of all questioning, the peremptory strikes

were made in open court, with the defendants able to observe

the process and to consult with counsel as to any matters

revealed in open court or at the bench. Although armed with

the information provided through open court voir dire and with

the opportunity to consult with the defendants concerning any

bench colloquy, apart from the objection to the method of

questioning, none of the defense counsel expressed

dissatisfaction with the composition of the jury selected for

service.

With respect to the murder of Edwin Ramos, the

Government's evidence at trial was essentially as follows.

Members of Los Solidos were upset that Ramos, a member of

Los Solidos and a former member of the Latin Kings, had sold

a gun - possibly to a member of the rival Latin Kings - that had

been given to him by Nelson Gonzalez, the president of Los

Solidos' Meriden chapter. Gonzalez told Ronald Pagan, the

"warlord" of the Meriden chapter, that Ramos should be

"terminated," which Solido members Alex Rivera and Keith

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Streeter understood to mean that Ramos was to be killed.

Gonzalez entrusted Pagan and Ruben Feliciano, a probationary

member of Los Solidos, with the task of "terminating" Ramos.

According to the evidence adduced by the Government, on

the evening of March 24, 1997, Pagan and Feliciano drove to

the apartment of Naomi Rivera in Meriden, where they picked

up Edwin Ramos and drove with him to the home of Alex

Rivera. After stopping at a store, Pagan, Feliciano, Alex

Rivera, and Ramos then drove to a cemetery in Meriden, where

all four exited the car. Feliciano asked Ramos what had

happened to the gun that Gonzalez had given him. Upon being

asked this question a second time, Ramos said that he might

have lost the gun. Feliciano laughed and then shot Ramos once

in the head, killing him.

Apart from the evidence relating to the murder of Edwin

Ramos, the Government also introduced evidence concerning

the organizational structure of Los Solidos and the drug

trafficking activities of its members. This evidence was

provided primarily through the testimony of two investigating

agents -- FBI Special Agent Jeff Rovelli and Sergeant Ronald

Bair of the Hartford Police Department -- and through former

members of Los Solidos.

Special Agent Rovelli testified that, from the beginning of

1994 up to the time of trial, he participated in a joint task force

("Task Force"), composed of federal, state, and local law

enforcement officers, investigating violent gang activity in

Hartford, Connecticut, with attention focused particularly on

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Los Solidos. Rovelli eventually became the coordinator of the

Task Force's activities. He took part, inter alia, in the execution

of federal and state search warrants at Solido locations,

pursuant to which narcotics, firearms, and copies of Los

Solidos' by-laws were seized. He also participated in court-

authorized interceptions of phone communications among

Solido members and reviewed the results of other electronic

\ surveillance of gang communications. On the basis of this

extensive experience with Los Solidos, Rovelli was permitted

by the district court to testify as an expert as to the structure,

leadership, practices, terminology, and operations of Los

Solidos. Rovelli also testified as a fact witness about, for

example, the Task Force's execution of search warrants at the

residences of Solido members at Natalie Street in Hartford and

at Blue Hills Avenue in Bloomfield, Connecticut, where copies

of Los Solidos' by-laws and other Solido documents were

seized. He further testified that he orchestrated controlled and

undercover narcotics purchases from members of Los Solidos

and conducted surveillance as those purchases occurred,

including purchases close to the time of the Ramos murder.

Rovelli also testified that he participated in the seizure of

narcotics and narcotics paraphernalia from Los Solidos

locations.

Sergeant Bair was not offered by the Government as an expert

witness. He testified that on April 18, 1997, while working as

| a detective in the narcotics division of the Hartford Police

| Department, he personally observed a confidential informant,

| acting under his direction and control, making an undercover

| purchase of crack cocaine at the residence of Solido member

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Whose nail

Michael Martin at 76 Hamilton Street in Hartford, on the basis

of which he was able to obtain a search warrant for that location

that resulted, inter alia, in the seizure of heroin and a copy of

the by-laws of Los Solidos.

Keith Streeter, one of the former members of the Meriden

chapter of Los Solidos whom the Government called to the

witness stand, testified that he joined Los Solidos, in part, in

order to make money selling narcotics. Streeter confirmed the

testimony of Special Agent Rovelli that Solido members were

required to pay ten percent of their earnings, including proceeds

from drug sales, into the chapter "kitty" -- maintained by the

chapter "Treasurer" -- as dues. Streeter further testified that he

personally participated with other members of Los Solidos in

selling cocaine, and that Solido members sold drugs throughout

the city of Meriden, including areas "controlled" by Los

Solidos.

On February 2, 1999, presentation of evidence was

completed. On February 8, 1999, the jury returned its verdicts,

finding all defendants guilty on all counts charged.

~ On April 29, 1999, Feliciano and Pagan were sentenced

principally to life imprisonment on Count Two (the substantive

VCAR count), to run concurrently with a sentence of ten years’

imprisonment on Count One (the VCAR conspiracy count) and

consecutively to a sentence of sixty months' imprisonment on

Count Three. On May 25, 1999, Gonzalez was sentenced

principally to life imprisonment on Count Two, to run

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concurrently with a sentence of ten years’ imprisonment on

Count One. =

DISCUSSION

A. Jury Selection

The district court, in accordance with a request from

Feliciano's counsel, occasionally interrupted the questioning of

venire members in open court in order to bring some venire

members to the bench to be questioned on certain limited

issues. Feliciano argues, however, that conducting this

questioning, over counsel's objection, outside the hearing of the

defendants violated his constitutional rights under the Fifth and

Sixth Amendments and his right to be present under Rule 43(a)

| of the Federal Rules of Criminal Procedure. See Fed. R. Crim.

P. 43(a) ("The defendant shall be present at the arraignment, at

the time of the plea, at every stage of the trial including the

impaneling of the jury and the return of the verdict, and at the

imposition of sentence, except as otherwise provided by this

rule."). Feliciano contends that this defect in the conduct of

voir dire was of structural dimension, its potentially prejudicial

effects being of such magnitude as to require vacatur of his

convictions and remand for retrial.

"The process of empaneling a jury is firmly entrusted to the

sound discretion of the trial judge and will not be disturbed

absent an abuse of this discretion." United States v. Morales,

185 F.3d 74, 84 (2d Cir. 1999) (internal quotation marks

A-12

-

omitted); cert. denied, 146 L. Ed. 2d 229, 120 S.Ct. 1282

(2000).

“There may be some constitutional errors which in the setting

of a particular case are so unimportant and insignificant that

they may, consistent with the Federal Constitution, be deemed

harmless, not requiring the automatic reversal of the

conviction." Chapman v. California, 386 U.S. 18, 22, 17 L. Ed.

2d 705, 87 S.Ct. 824 (1967). n2 The Supreme Court has

distinguished two kinds of errors that can occur at, or in relation

to, a criminal proceeding: so-called "trial errors," which are of

relatively limited scope and which are subject to harmless error

review, and "structural defects," which require reversal of an

appealed conviction because they "affect[ ] the framework

within which the trial proceeds." Arizona v. Fulminante, 499

U.S. 279, 307-10, 113 L. Ed. 2d 302, 111 S.Ct. 1246 (1991).

"Errors are properly categorized as structural only if they so

fundamentally undermine the fairness or the validity of the trial

that they require voiding its result regardless of identifiable

prejudice." Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir.

1996).

n2 Because Feliciano claims that both his constitutional

rights and his rights under Rule 43 (a) were violated at voir

dire, we apply caselaw on the constitutional right to presence

and harmless constitutional error, and also consider cases

involving challenges based on Rule 43(a) alone, which are

subject to harmless error review under Rule 52(a) of the

Federal Rules of Criminal Procedure.

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1. If the district court erred in conducting a portion of voir dire

outside the hearing of defendants, was that error structural?

"To determine whether an error is properly categorized as

structural, we must look not only at the right violated, but also

at the particular nature, context, and significance of the

violation." Yarborough, 101 F.3d at 897.

We note first that defendants have cited no case -- and we

have found none -- in which an appellate court has found a

structural defect where a defendant was present throughout but

unable to hear a circumscribed portion of voir dire, and whose

counsel was allowed to consult with him about the limited

questioning outside his hearing. The Supreme Court has "found

structural errors only in a very limited class of cases," Johnson

v. United States, 520 U.S. 461, 468, 137 L. Ed. 2d 718, 117

S.Ct. 1544 (1997). Situations in which courts have found

structural error involve violations of a defendant's rights far

more serious than any claimed here. See, e.g., Fulminante, 499

U.S. at 309-10 (noting that the total deprivation of the right to

counsel at trial, a judge who was not impartial, unlawful

exclusion of members of the defendant's race from a grand jury,

and violations of the right to self-representation at trial and of

the right to a public trial are "structural defects in the

constitution of the trial mechanism, which defy analysis by

‘harmless-error’ standards"); Sullivan v. Louisiana, 508 U.S.

275, 281-82, 124 L. Ed. 2d 182, 113 S.Ct. 2078 (1993) (holding

that erroneous reasonable-doubt instruction is structural error);

Tankleff v. Senkowski, 135 F.3d 235, 240 (2d Cir. 1998)

(holding that exclusion of jurors from petit jury on the basis of

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race is structural error). Further, the Supreme Court has not

held that a trial court's exclusion of a defendant from a portion

of a criminal Proceeding is ipso facto a structural defect. See

Rushen v. Spain, 464 U.S. 114, 120-21, 78 L. Ed. 2d 267, 104

S.Ct. 453 (1983) (applying harmless error review to trial judge's

conversations with juror in defendant's absence concerning

evidence at trial of which the juror had prior knowledge); see

also United States v, Gagnon, 470 U.S. 522, 526, 84 L.Ed. 2d

486, 105 S.Ct. 1482 (1985) ("The presence of a defendant is a

condition of due process to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only."

(quoting Snyder y. Massachusetts, 291 U.S. 97, 105-06, 78

L.Ed. 674, 54 S.Ct. 330 (1934) (modification in Original))).

Our Court has stated that

Fulminante and Rushen require us to consider

the nature of a "presence error" in the context of

the specific proceeding from which the

defendant was excluded. In the usual case, such

an error will be susceptible to harmless error

analysis, but a defendant's absence from certain

Stages of a criminal proceeding may so

undermine the integrity of the trial process that

the error will necessarily fall within that

category of cases requiring automatic reversal.

Yarborough, 101 F.3d at 898 (quoting Hegler vy, Borg, 50 F.3d

1472, 1476 (9th Cir. 1995)).

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--

We express no judgment as to whether the district court's

security concerns rendered its decision to exclude the

defendants from the limited bench questioning free from error

because we conclude that even assuming there was error, it is

clear that any error here did not "affect[ ] the framework within

which the trial proceeded." Fulminante, 499 U.S. at 310.

Feliciano and his co-defendants were present in the courtroom

for the entire jury selection process, with most of the questions

answered by the jurors in open court. Defendants were

provided by the district court with the unlimited opportunity to

consult with their counsel at any time during the limited bench

questioning about what was revealed at sidebar and to propose

questions to the venire persons who came to the bench. In

addition, all three defendants were present and able to consult

with counsel when the peremptory challenge process was

conducted in open court. Accordingly, we find that any error

here was not of such dimension as to undermine the integrity of

the trial and require automatic reversal.

2. If the district court erred in conducting a portion of voir dire

outside the hearing of defendants, was that error harmless?

Apart from the reasons stated above, we find the following

additional reasons for concluding that any error in the process

of selecting the jury, assuming arguendo there was such, was

harmless beyond a reasonable doubt. Along with the district

court's probing inquiry, counsel for the defendants participated

vigorously in questioning the venire persons who came to the

bench. Only two venire members who came to the bench to

discuss a potentially substantive matter (their exposure to media

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reports concerning Los Solidos) were selected to serve on the

jury, and their selection was not opposed by any defense

counsel. When, after questioning the jurors in open court and

(in a few instances) at the bench, the peremptory challenges

were made, the defendants were able to discuss with counsel

any matters revealed during the bench questioning. See, e.g,

United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d

489, 498 (D.C. Cir. 1983) (per curiam) (finding that it was

harmless error beyond a reasonable doubt for the district court

to permit potential jurors, seven of whom served on the jury, to

be questioned about their prior involvement in the criminal

justice system at the bench in the presence of appellant's

counsel but out of the direct observation and hearing of the

appellant because only a very limited portion of voir dire was

conducted at the bench, in which appellant's counsel

Participated and had sufficient time to confer with appellant

concerning the jurors' responses); cf. United States y.

Dioguardi, 428 F.2d 1033, 1039-40 (2d Cir. 1970) (Friendly, J .)

(noting that the district court was potentially subject to criticism

for examining at sidebar Prospective jurors who had read or

heard anything about any of the defendants, but excusing this

procedure because defendants were seated 15-20 feet away

from the bench, and their counsel, who had been advised earlier

of this procedure, participated in the sidebar questioning and

had ample time to consult with the defendants).

We therefore conclude that any error of the district court in

conducting the limited portion of voir dire at issue in this case

was harmless beyond a reasonable doubt. n3

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n3 Because of this finding, we need not decide whether

Pagan and Gonzalez waived the right to challenge the

district court's conduct of jury selection by not objecting to

this procedure below.

B. The Sufficiency of the Evidence that Los Solidos

Engaged in Racketeering Activity and Feliciano's

Proposed Instruction on this Element

(1) Sufficiency of the Evidence that Los Solidos Engaged in

Racketeering Activities

The VCAR establishes as an essential element of any offense

charged under it that the "enterprise" in relation to which the

charged crimes were allegedly committed was "an enterprise

engaged in racketeering activity." 18 U.S.C. § 1959 (a). The

VCAR, at S* **on 1959(b)(1), expressly adopts the definition

of "racketeering activity" set forth in the Racketeer Influenced

and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961,

which provides, in pertinent part, that

(1) "racketeering activity" means .. . (D) any

offense involving . . . a controlled substance. .

. punishable under any law of the United States.

18 U.S.C. § 1961(1)(D).

The Superseding Indictment alleged that the "Enterprise [i.e.,

Los Solidos], through its members and associates, engaged in

racketeering activity as defined in Title 18, United States Code,

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Sections 1959(b)(1) and 1961(1), namely, acts involving

trafficking in controlled substances, in violation of Title 21,

United States Code, Sections 841(a)(1) and 846, and acts

involving murder, in violation of Connecticut General Statutes,

Sections 53a-54a." Thus, in the instant case the Government

was required to prove as an essential element of the charged

VCAR offenses that Los Solidos, through its members and

associates, engaged in trafficking in controlled substances that

would constitute substantive narcotics offenses in violation of

21 U.S.C. § 841, or narcotics conspiracy in violation of 21

U.S.C. § 846, or acts involving murder in violation of

Connecticut law. The Government argues that it adduced

abundant evidence of drug trafficking offenses by members of

Los Solidos that sufficed to prove that Los Solidos was engaged

in racketeering activity.

With respect to the racketeering element, the district court

instructed the jury as follows:

The second element that the government must

prove beyond a reasonable doubt is that Los

Solidos engaged in racketeering activities, in

this case trafficking in controlled substances and

acts involving murder.

Feliciano contends on appeal that his conviction on the

VCAR counts should be reversed because the evidence at trial

that Los Solidos was engaged in racketeering activities was

insufficient. Specifically, he argues that the Government

produced at best "generalized" evidence of narcotics trafficking

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ranging over a period of years, without providing the jury with

evidence of particularized, spatio-temporally defined acts of

narcotics trafficking as the Government would be required to do

when prosecuting a defendant for particular narcotics offenses

under 21 U.S.C. §§ 841 and/or 846.

A defendant challenging a conviction based upon a claim of

insufficiency of the evidence bears a heavy burden. See United

States v. Naiman, 211 F.3d 40, 46 (2d Cir. 2000).

We consider the evidence presented at trial in

the light most favorable to the government,

crediting every inference that the jury might

have drawn in favor of the government. We will

not disturb a conviction on grounds of legal

insufficiency of the evidence at trial if any

rational trier of fact could have found the

essential elements of the crime beyond a

reasonable doubt. Nevertheless, a conviction

cannot stand when the Government has not

introduced sufficient evidence to sustain each

essential element of the crime charged beyond a

reasonable doubt.

/d. (citations and internal quotation marks omitted).

Our review of the trial transcript -- viewing the evidence, as

we must, in the light most favorable to the Government --

convinces us that the Government adduced evidence sufficient

to persuade any rational juror, drawing inferences from the

A -20

nape

evidence in favor of the Government, that over a period of

several years, Los Solidos, through its members and associates,

trafficked in narcotics. Rovelli and Bair testified that they

Participated in undercover purchases of crack cocaine, powder

cocaine, and heroin from members of Los Solidos. On

September 20, 1994 and April 18, 1997, task force Participants,

pursuant to search warrants executed at the residences of Los

Solidos members on Natalie Street and Hamilton Street in

Hartford, seized drugs, drug paraphernalia, and materials

describing the by-laws and activities of Los Solidos. Former

Solido member Keith Streeter testified that gang members sold

drugs throughout the city of Meriden and that gang members

were required to pay a portion of their earnings, including

earnings from drug sales, into the chapter's "kitty," maintained

by the chapter's "Treasurer." The money thus collected was

used to purchase firearms for protection, and a stash of such

weapons was held under the control of the gang's "warlord."

Los Solidos chapter "Presidents" had authority to order violent

“missions,” including murder, against non-members and to

terminate members found to be in violation of the gang's rules.

Accordingly, we find that at trial the Government adduced

abundant evidence of drug trafficking by members of Los

Solidos in violation of 21 U.S.C. §§ 841(a)(1), and that such

evidence was more than sufficient to show that Los Solidos

engaged in racketeering activities. See United States v Gray,

137 F.3d 765, 773 (4th Cir.), cert. denied, 525 U.S. 866, 142

L.Ed. 2d 129, 119 S.Ct. 157 (1998) ("The evidence that the

enterprise dealt in drugs would . . . be sufficient to support a

jury finding that the enterprise engaged in racketeering.").

A-21

In a footnote to his brief, Feliciano implicitly suggests a

further claim not raised below: that the district court erred by

not instructing the jury as to the elements of substantive

narcotics offenses under 21 U.S.C. § 841 and the elements of

narcotics conspiracy under 21 U.S.C. § 846. In his proposed

instruction on the racketeering activity element, however,

Feliciano requested the court to instruct the jury as follows:

In this case, you must find beyond a reasonable

doubt that Los Solidos was an enterprise that

engaged in racketeering activity, in this case

trafficking in controlled substances in violation

of 21 USC Section 841(a)(1) and 846 and acts

involving murder in violation of Conn. Gen.

Stat. Sections 53a-54a. In this regard, I must

instruct you that it is not sufficient that you

conclude that some members of Los Solidos

may have engaged in these activities, you must

find beyond a reasonable doubt that the

Enterprise so acted in order to find either of the

defendants guilty in this case.

The first sentence of this instruction employs the same

generic reference to "trafficking in controlled substances" that

the district court employed in the instruction that Feliciano now,

on appeal, suggests was defective. Moreover, while Feliciano's

proposed instruction refers to 21 U.S.C. §§ 841 (a)(1) and 846,

it does not request the district court to instruct the jury as to the

elements of these offenses. Because Feliciano did not argue or

cite any authority in his brief that instruction on these elements

A -22

was required but only suggested that this omission made the

jury's task of finding that Los Solidos engaged in racketeering

activities more difficult, there are serious questions as to

whether this specific claim is properly before us. In any event,

it is clear that Feliciano's counsel, who demonstrated

competence and vigorous advocacy throughout jury selection

and trial, as well as on appeal, did not object below to the

district court's failure to instruct the jury on the elements of Los

Solidos' alleged racketeering offenses. Therefore, examination

of this matter is subject to "plain error" analysis under Rule

52(b) of the Federal Rules of Criminal Procedure, guided by the

Supreme Court's decision in United States v. Olano, 507 U.S.

725, 731-37, 123 L.Ed. 2d 508, 113 S.Ct. 1770 (1993). See

United States v. Miller, 116 F.3d 641, 672 (2d Cir. 1997) ("If

there was no objection to the erroneous instruction, the

instruction is reviewable on appeal only for 'plain error’... .").

Our court "has restated the first three prongs of the Olano test

as follows:"

First, there must be "error," or deviation from a

legal rule which has not been waived. Second,

the error must be "plain," which at a minimum

means "clear under current law." Third, the

plain error must, as the text of Rule 52(b)

indicates, “affect{ ] substantial rights," which

normally requires a showing of prejudice.

United States v. Bayless, 201 F.3d 116, 127-28 (2d Cir.)

(quoting United States v. Viola, 35 F.3d 37, 41 (2d Cir. 1994))

A-23

cert. denied, 120 S.Ct. 1571 (2000). "A plain error is an error so

egregious and obvious as to make the trial judge and prosecutor

derelict in permitting it, despite the defendant's failure to

object." United States v. Gore, 154 F.3d 34, 43 (2d Cir. 1998)

(internal quotation marks omitted). On appeal, Feliciano has

the burden of persuasion to show that the district court

committed plain error. See id. at 42.

Application of plain error analysis to this matter encounters

the difficulty that Feliciano did not argue in his appellate brief

or at oral argument that the first three prongs of the Olano test

were Satisfied here. Counsel for Pagan referred to the disirict

court's omission to instruct on the elements of §§ 841(a)(1) and

846 -- also for the first time on appeal -- in conjunction with

one of his constitutional arguments (see below, Section G), n4

but did not argue in his appellate brief that Olano was satisfied

as to the jury instruction issue (or any other issue). This posture

of the case presents obvious difficulties to an appellate court's

analysis of the first three prongs of the Olano test. See, e.g.,

Olano, 507 U.S. at 734 (Under Rule 52(b), "it is the defendant ©

rather than the Government who bears the burden of persuasion

with respect to prejudice.").

n4 Pagan referred to the district court's omission to instruct

on the elements of §§ 841(a)(1) and 846 in attempting to

support his argument that "the district court . . . failed to

require any proof of the necessary temporal, relational,

and/or quantitative relationships required by various

elements of the [VCAR]."

A-24

Given our review of the evidence discussed above, however,

we find that such analysis is unnecessary in the circumstances

of this case. Even if the district court did commit plain error by

omitting to instruct on the elements of §§ 841(a)(1) and 846 --

and an argument for that conclusion may have some force --

and even if Feliciano could show that this error "affected [his]

substantial rights," there was abundant evidence at trial that Los

Solidos engaged in racketeering activities by trafficking in

controlled substances (including heroin, cocaine, and crack

cocaine) in violation of these statutes. Thus, in our judgment,

because the district court's omission did not "seriously affect[]

the fairness, integrity or public reputation of judicial

proceedings," Olano, 507 U.S. at 736, the fourth prong of

Olano is not satisfied here. Cf. Johnson, 520 U.S. at 469 ("We

need not decide [whether Olano's "substantial ri ghts" prong was

Satisfied] because, even assuming that the failure to submit

materiality to the jury ‘affected substantial rights,' it does not

meet the final requirement of Olano [because of the abundant

evidence of materiality].").

(2) Feliciano's Proposed Instruction on Los Solidos'

Racketeering Activities

Apart from his contention concerning the sufficiency of proof

of Los Solidos' racketeering offenses, Feliciano claims that the

district court erred by not providing his proposed instruction

because the jury needed to be instructed as to what acts in

evidence at trial could constitute racketeering activities of the

enterprise. A defendant attempting to show that a district court

A-25

erred in rejecting a proposed jury charge carries a heavy burden.

The defendant must show that his proposed charge "accurately

represented the law in every respect, and that the charge

actually given, viewed as a whole, prejudiced him." United

States v. Thompson, 76 F.3d 442, 454 (2d Cir. 1996) (internal

quotation marks omitted).

The purported purpose of Feliciano’s suggested instruction

that "it is not sufficient that you conclude that some members

of Los Solidos may have engaged in [racketeering] activities"

was to inform the jury that if, for example, individuals who

happened to be members of Los Solidos obtained drugs on their

own and sold them entirely for their own personal profit, such

activity could not count as racketeering activity of Los Solidos.

The first problem with this formulation, however, is that that

explanation is not at all clear from what the proposed

instruction states. Feliciano's proposed instruction distinguishes

the activities of members of Los Solidos and of "the

Enterprise," not the activities of members of Los Solidos as

members and otherwise.

Another problem is that the proposed instruction might have

caused the jury to disregard evidence that could legitimately

support a finding that the members of Los Solidos as members

engaged in drug trafficking. Among other evidence, the jury

heard testimony from Solido members who stated that they

joined the gang, in part, to take advantage of the gang's drug

connections in order to make money selling drugs themselves.

There was further testimony that Los Solidos required its

members to pay ten percent of the proceeds from their drug

A - 26

sales and other earnings as dues into the gang's "kitty"

maintained by the gang's "Treasurer." The jury might have

gotten the misimpression from the proposed instruction that

such drug sales by “members of Los Solidos" must be

categorically disregarded in determining whether "the

Enterprise" engaged in racketeering activity.

In addition, the suggested instruction that "you must find

beyond a reasonable doubt that the Enterprise [and not the

members] so acted" could puzzle the jury as to how the

enterprise could act other than through its members. The VCAR

provides the following explication of “enterprise:"

"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 ...

18 U.S.C. § 1959(b)(2). Especially where a substantial portion

of the activities of a "union or group of individuals associated

in fact although not a legal entity" are conducted in violation of

law, n5 the necessity that informal groups can only act through

their individual members (who do not have legally recognized

agency status) is particularly apparent. See United States v.

Cutolo, 861 F. Supp. 1142, 1146 (E.DN.Y. 1994) ("An

enterprise, here a group of individuals associated in fact, can

only act through its members, associates, or employees.").

Where individuals are associated only "in fact,” determining

whether the subject enterprise engaged in racketeering activity

requires fact-based attention to the ways in which, for example,

A-27

di fc Pg ane ak NE 8 Oe

the individuals acted for the group and/or in concert with other

members, or acted in ways that contributed to the purposes of

the group, or that were facilitated or made possible by the

group. n6

n5 No defendant in this case has denied the possibility that

a street gang can come within the VCAR's concept of an

enterprise or that the foundation of this possibility is the

VCAR's reference to "any union or group of individuals

associated in fact although not a legal entity." 18 U.S.C. §

1959(b)(2).

n6 In this regard, we note that with respect to the interstate

commerce element, the district court instructed the jury that

activities that would satisfy this element were "activities in

furtherance of the enterprise" that affected interstate or

foreign commerce. Tr. 2/3/99 at 160 (emphasis added).

However, rather than focus the jury's attention on the ways in

which the members of Los Solidos acted for, or with the aid of,

the gang, Feliciano's proposed instruction would turn the jury's

| attention away from the activities of the members of Los

| Solidos and toward the actions of "the Enterprise," despite the

fact that the statute requires attention to the actions of

"individuals associated in fact." n7 18 U.S.C. § 1959(b)(2)

(emphasis added). We therefore find that Feliciano's proposed

instruction would be confusing to the jury and does not

"accurately represent[ ] the law." Thompson, 76 F.3d at 454;

see also United States v. Bahna, 68 F.3d 19, 21 (2d Cir. 1995)

("[A] failure to grant a request for instructions that are in any

A- 28

respect incorrect and unsound does not constitute error. ")

(quoting Clark v. Pennsylvania R.R.,328 F.2d 591 » 995 (2d Cir.

1964)).

n7 Although the district court's instruction on this element

did not mention the members of Los Solidos, it did not turn

the jury's attention away from the actions of the members in

the way that Feliciano's proposed instruction would.

For these reasons, we reject Feliciano's claim that the district

court erred in not adopting his proposed charge on Los Solidos'

racketeering activities.

C. The District Court's Instructions on the VCAR's

Interstate/Foreign Commerce Element

With respect to the interstate/foreign commerce element of

the VCAR, the district court instructed the jury as follows:

The third element that you must find beyond a

reasonable doubt is that the enterprise itself,

namely the Los Solidos, or the racketeering

activities of those associated with it, had some

effect upon interstate or foreign commerce. This

effect on interstate or foreign commerce could

have occurred in any way, and it need only have

been minimal. It is not necessary that you find

that a substantial affect [sic] on interstate or

foreign commerce occurred . . . So long as

activities in furtherance of the enterprise

A-29

a ae eee

affected interstate or foreign commerce in some

minimal way, you may find that this element has

been satisfied. It is sufficient, for example, that

in the course of the racketeering activities,

members of the enterprise sold narcotics.

Gonzalez, "like many criminal defendants in [recent] years,”

see United States v. Goodwin, 141 F.3d 394, 397 (2d Cir.

1997), invokes the Supreme Court's decision in United States

v. Lopez, 514 U.S. 549, 131 L.Ed. 2d 626, 115 S.Ct. 1624

(1995), “to challenge his federal criminal conviction.

Specifically, he argues that the district court erred when it

instructed the jury that the "effect on interstate or foreign

commerce [of the activities of Los Solidos] . . . need only have

been minimal," and that "it is not necessary that [the jury] find

that a substantial affect [sic] on interstate or foreign commerce

occurred." Gonzalez contends that, in light of Lopez, the jury

should have been instructed that it had to find the activities of

Los Solidos had a substantial -- not merely a minimal -- effect

on interstate or foreign commerce. We find Gonzalez's

argument to be without merit.

In Lopez, the Supreme Court reaffirmed that "Congress’

commerce authority includes the power to regulate those

activities having a substantial relation to interstate commerce .

A - 30

---" 514 US. at 558-59 (citing cases); see also Goodwin , 141

F.3d at 398. However,

[iJn Lopez, the Supreme Court held that

Congress exceeded its authority under the

Commerce Clause in enacting the Gun Free

School Zones Act of 1990, 18 U.S.C. § 922(q),

which made it a federal offense "for any

individual knowingly to possess a firearm at a

place that the individual knows, or has

reasonable cause to believe, is a school zone.""

Lopez, 514 U.S. at 551, 115 S.Ct. 1626 (quoting

18 U.S.C. § 922(q)(1)(A)). The Court reached

this conclusion because the Gun Free School

Zones Act "neither regulated a commercial

~ activity nor contained a requirement that the

possession be connected in any way to interstate

commerce." 514 U.S. at 551, 115 S.Ct. at 1626

(emphasis added).

Goodwin, 141 F.3d at 398. The Supreme Court also noted that

Congress had not made any finding that the activities the Act

prohibited had an effect on interstate commerce. Lopez, 514

U.S. at 562.

The basis on which federal prosecution of Gonzalez and his

co-defendants was grounded was their commission of a violent

crime undertaken for the sake of their membership in a gang

that -- as the evidence at trial demonstrated -- engaged over

several years in selling cocaine, crack cocaine, and heroin. In

A-31

wT. ee ee eee

the aftermath of the Lopez decision, this Court has repeatedly

held that Congress reasonably concluded that narcotics

trafficking has a substantial effect on interstate or foreign

commerce. See, e.g., United States v. Miller, 116 F.3d 641, 674

(2d Cir. 1997) (upholding the district court's instruction that

defendants’ drug trafficking activities prosecuted under RICO

need only be "minimal" and "need not be substantial," and

stating that "Lopez did not alter the principle that where the type

of activity at issue has been found by Congress to have a

substantial connection with interstate commerce, the

government need only prove that the individual subject

transaction has a de minimis effect on interstate commerce");

Goodwin, 141 F.3d at 399 ("Drug trafficking activity clearly is

a proper subject for federal regulation . . . ."); United States v.

Genao, 79 F.3d 1333, 1337 (2d Cir. 1996) (noting that

"Congress has made specific findings that local narcotics

activity has a substantial effect on interstate commerce");

Proyect v. United States, 101 F.3d 11, 12-14 (2d Cir. 1996)

(per curiam) (noting the same point and quoting Genao). Our

Court has also held that Lopez did not heighten the minimal

interstate commerce effect requirement for prosecution of

Hobbes Act, RICO narcotics trafficking, and money laundering

offenses, all of which are economic activities that in the

aggregate have a substantial effect on interstate commerce. See

Miller, 116 F.3d at 674 (RICO narcotics trafficking); United

States v. Fairish, 122 F.3d 146, 148 (2d Cir. 1997) (Hobbs

Act); United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.

1997) and Goodwin, 141 F.3d at 399-400 (money laundering);

see also Gray, 137 F.3d at 773 ("Although [the Government's]

evidence of the enterprise's connection with interstate

A - 32

commerce is not copious, we are satisfied that it is enough to

meet the minimal standard required to satisfy the interstate

commerce requirement of [the VCAR].").

Moreover, the VCAR has a jurisdictional element requiring

the Government in each prosecution to provide evidence of an

effect on interstate or foreign commerce. See United States v.

Torres, 129 F.3d 710, 717 (2d Cir. 1997) ("The substantial

effect requirement [of Lopez] is satisfied when criminal

Statutes contain a jurisdictional element . . . Section 1959

Satisfies the substantial effect requirement [because it]

incorporates a jurisdictional element requiring a nexus between

the offense in question and interstate commerce."); cf Fairish,

122 F.3d at 149 ("In sharp contrast to the statute at issue in

Lopez, the Hobbs Act does contain... a jurisdictional

element."); Goodwin, 141 F.3d at 400 ("The inclusion of . . .

jurisdictional elements precludes any serious challenge to the

constitutionality of the money laundering statute . . . because [if

proven] it guarantees a legitimate nexus with interstate

commerce." (internal quotation marks omitted)).

Gonzalez argues that the Supreme Court's recent opinion in

United States v. Morrison , 529 U.S. 598, 146 L.Ed. 2d 658,

120 S.Ct. 1740 (2000), demonstrates -- at the very least -- that

the district court's instruction was erroneous because the Court

in Morrison stated that Congress lacks authority under the

Commerce Clause to regulate noneconomic, violent criminal

conduct based solely on that conduct's aggregate effect on

interstate commerce. See id. at 1754. At issue in Morrison

was Section 13981 of the Violent Crime Control and Law

A - 33

Enforcement Act of 1994, § 40302, 42 U.S.C. § 13981, which

provided a federal civil remedy for victims of gender-motivated

violence. Implicit in Gonzalez's contention is the claim that the

VCAR, like Section 13981, is also directed only to

noneconomic criminal activity.

Gonzalez's reliance on Morrison is misplaced. In Morrison,

the Supreme Court rejected the argument that Section 13981

regulates activity that substantially affects interstate commerce.

In doing so, the Court noted that "like the Gun-Free School

Zones Act at issue in Lopez, § 13981 contains no jurisdictional

element establishing that the federal cause of action is in

_ pursuance of Congress’ power to regulate interstate commerce."

Id. at 1751. In addition, the Court rejected petitioners’ attempt

to link the regulated activity to an effect on interstate

commerce, finding the purported link to be based on an

attenuated, but-for causal chain of reasoning. See id. at 1752-53.

In contrast to Section 13981, the VCAR, as noted, includes a

jurisdictional element and covers only violent crimes linked to

the perpetrator’s position in an enterprise engaged in

racketeering activity that must satisfy the jurisdictional element.

As the statute thus makes plain, Congress was not attempting to

assert jurisdiction over noneconomic crimes that are

constitutionally within the exclusive jurisdiction of state and

local government. Rather, as the legislative history indicates, "it

is evident that Congress enacted section 1959 in view of the

‘Federal Government's strong interest . . . in suppressing the

activities of organized criminal enterprises." United States v.

Mapp, 170 F.3d 328, 336 (2d Cir.) (affirming a murder

A - 34

conviction under § 1959 and quoting S. REP. No. 98-225, at

305 (1983), reprinted in 1984 U.S.C.C.AN. 31 82, 3484), cert.

denied, 120 S.Ct. 239 (1999). "[Because] any predicate murder

(under § 1959 must] bear a strong relationship to racketeering

activity that affects interstate commerce, it does not risk

improperly making purely local crimes a matter of federal

concern." Jd

Moreover, the racketeering activity that satisfies the

jurisdictional element in this case -- narcotics trafficking -- is

clearly economic in nature and has been found by Congress to

have a substantial effect on interstate commerce. See, e.g.,

Genao, 79 F.3d at 1337 (noting Congress’ finding that even

local narcotics trafficking has "a substantial effect on

interstate commerce"); Goodwin, 141 F.3d at 399 ("We have

repeatedly held that the ‘Controlled Substances Act concerns an

obviously economic activity’ substantially affecting interstate

commerce, namely, narcotics trafficking, and have sustained the

Act against criminal defendants’ Lopez challenges.") (quoting

Genao, 79 F.3d at 1337, and citing other cases).

Accordingly, we find that the district court did not err in

instructing the jury that it need only find that the activities of

Los Solidos -- the proof of which at trial related to narcotics

trafficking -- need only have been minimal.

Gonzalez also contends that the district court erred when, in

its charge to the jury on the interstate commerce element, it

stated that for satisfaction of this element, "it is sufficient, for

example, that in the course of the racketeering activities,

A-35

members of the enterprise sold narcotics." Gonzalez asserts

that, in this instruction, the district court implicitly stated that

it was true that there were such sales, thus, in effect, improperly

directing a verdict on this element. We disagree.

In reviewing a district court's jury instruction, we view a

disputed charge within the context of the district court's charges

in their entirety. See United States v. Caban, 173 F.3d 89, 94

(2d Cir.), cert. denied, 120 S.Ct. 174 (1999). ‘

The district court instructed the jury that the Government bore

the burden of proving beyond a reasonable doubt the existence

of each element of each charge as to each defendant. At ne——

point in its instructions did the district court tell the jury that the

Government had proven any element of any charge as to any

defendant beyond a reasonable doubt or direct the jury that it

must find in favor of the Government as to any element of any

charge against any defendant. With respect to the element at

issue here, the district court instructed the jury that the

Government "must prove beyond a reasonable doubt . . . as to

each defendant: . . . (2) that Los Solidos engaged in racketeering

activity; [and] (3) that such racketeering activity, if found,

affected interstate or foreign commerce; . . ."

At trial, witnesses for the Government testified that members

of Los Solidos sold drugs and that the drugs bought and sold by

Los Solidos moved in interstate or foreign commerce. n8

Viewing the challenged instruction, as we must, in conjunction

with the district court's instructions as to what the Government

was required to prove, and considering the nature of the

A - 36

Government's efforts at trial to satisfy these requirements, it is

clear that the district court did not, as Gonzalez contends,

instruct the jury that the Government had, in fact, proven

beyond a reasonable doubt "that in the course of the

racketeering activities, members of the enterprise sold

narcotics." Rather, the district court instructed the jury that if

it credited beyond a reasonable doubt the evidence adduced by

the Government, so long as those activities in furtherance of the

enterprise affected interstate of foreign commerce in some

minimal way (as the Government attempted to show), that

finding by the jury would discharge the Government's

obligation on the interstate/foreign commerce element of the

VCAR counts. For the reasons stated above, that instruction is

in accord with the law.

— n8 At trial, Special Agent Rovelli testified that heroin and

cocaine are not manufactured in Connecticut, and former

Solido member Keith Streeter testified that Los Solidos

obtained in New York some of the drugs they sold in

Connecticut.

D. The Testimony of Rovelli and Bair

"As a general proposition, the decision of whether to admit

——— expert testimony is left to the discretion of the trial judge and

should not be set aside unless manifestly erroneous." United

States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (internal

quotation marks omitted). Rule 702 of the Federal Rules of

Evidence allows broad discretion to a district court to admit

expert testimony "in the form of an opinion or otherwise" when,

A - 37

in the district court's judgment, it "will assist the trier of fact to

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

Evid. 702.

In the course of his direct testimony, Special Agent Rovelli

responded affirmatively to the following question from the

prosecutor:

And based on your participation in the

investigation as an organization have the Los

Solidos been involved in narcotics trafficking?

Feliciano argues that the district court manifestly erred by

permitting Rovelli to affirm this conclusion. This was improper,

according to Feliciano, because this statement and related

statements by Rovelli went beyond the scope of expert

testimony and were based, in part, on hearsay statements by

informants and on other evidence not before the court.

Feliciano also characterizes Rovelli's response as an "ultimate"

conclusion that Los Solidos' Meriden chapter was an enterprise

engaged in racketeering activity. Feliciano finds similar

problems with the testimony of Sergeant Bair, who, although

not offered by the Government as an expert witness, was

permitted to testify that Los Solidos controlled certain areas of

Hartford for narcotics trafficking.

"In evaluating the admissibility of expert testimony, this

Court requires the exclusion of testimony [that] states a legal

conclusion." Duncan, 42 F.3d at 101. Our review of the trial

transcript shows that at no point did either Rovelli or Bair use

A - 38

ee ere e Cm

terms from the VCAR, such as "enterprise" or "racketeering

activity,” or respond to questions using those terms. No legal

conclusions were stated by either witness. Moreover, Rule

704(a) of the Federal Rules of Evidence does not forbid all

testimony concerning ultimate issues. See Fed. R. Evid. 704(a)

("Except as provided in subdivision (b) [concerning expert

testimony on the mental state or condition of a defendant in a

criminal case], testimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces

an ultimate issue to be decided by the trier of fact."); United

States v. Daly, 842 F.2d 1380, 1387 (2d Cir. 1988). Testimony

by Rovelli and Bair about narcotics trafficking by Los Solidos

was not objectionable merely because of its pertinence to the

issue of whether Los Solidos engaged in racketeering activity.

This Court has repeatedly held that expert testimony

admissible under Rules 702 and 703 of the Federal Rules of

Evidence can, under certain conditions, be based on hearsay and

evidence not admitted at trial. See, e.g, United States v.

Locascio, 6 F.3d 924, 938 (2d Cir. 1993) ("Expert witnesses

can testify to opinions based on hearsay or other inadmissible

evidence if experts in the field reasonably rely on such evidence

in forming their opinions. [The expert witness in this case] was

entitled to rely upon hearsay as to such matters as the structure

and operating rules of organized crime families . . . since there

is little question that law enforcement agents routinely and

reasonably rely upon such hearsay in the course of their duties."

(citations omitted)); Daly, 842 F.2d at 1387 ("If experts in the ©

field reasonably rely on hearsay in forming their opinions and

drawing their inferences, the expert witness may properly testify

A - 39

to his opinions and inferences based upon such hearsay.").

Rovelli testified both as an expert and as a fact witness. Such

dual testimony is not objectionable in principle. See United

States v. Young, 745 F.2d 733, 760 (2d Cir. 1984) ("It was not

improper for the government to elicit... expert testimony from

law enforcement officers who also testified as fact witnesses.").

But our review of the trial transcript shows that the line

between Rovelli's opinion and fact witness testimony is often

hard to discern, and the "facts" testified to are often stated very

broadly and generally. For example, Rovelli testified, without

supplying specific dates and locations, that he participated in

undercover purchases of crack cocaine, powder cocaine, and

heroin from members of Los Solidos. However, all three

defense counsel had the opportunity, which they seized, to

explore on cross-examination the limitations of Rovelli's

— experience and his testimony, both as an expert and as a fact

witness. In addition, the district court advised the jurors that

they were free to give opinion testimony whatever weight they

thought it deserved or to disregard it entirely, if they believed

that the opinion of an expert witness was not sufficiently based

on experience or if it was outweighed or coatradicted by other

evidence.

The content of Sergeant Bair's testimony was more confined

by limits of time and place. As noted, Bair was not offered as

an expert witness. He testified primarily about a particular

undercover operation in which he participated on April 18,

1997, and about an ensuing search warrant, in the execution of

which he also participated. Bair's testimony provided the jury

A -40

with particularized evidence that it could evaluate with respect

to the issue of whether Los Solidos sold narcotics. The jury

could also consider Bair’s evidence - if persuasive - as possibly

corroborating or lending credence to the testimony of Keith

Streeter that Los Solidos sold drugs throughout the city of

Meriden, and as possibly corroborating Rovelli's testimony

about Los Solidos' drug saics in Hartford and other cities.

For the above reasons, we reject Feliciano's argument that the

district court manifestly erred by admitting the challenged

testimony of Rovelli and Bair.

E. The Prosecutor's Closing Statements

In their summations, defense counsel attacked the credibility

of several Government witnesses, including Naomi Rivera and

her boyfriend, Wilfredo Abrahante. In addition to calling one

of the Government's witnesses a "liar" and a "perjurer,"

Feliciano's counsel said Naomi Rivera shed "the biggest set of

crocodile tears" when she was on the stand. Pagan’s counsel

spoke of "the utter lack of trustworthiness of government

evidence by the witnesses," explicitly including Naomi Rivera

and Wilfredo Abrahante ("Abrahante"). Gonzalez's counsel

told the jury that "the government's job is to convict these three

men" and that "there's no doubt about it, that's their job, and if

you don't think, inherent in that, they will do anything to

convict people that they think are guilty, to what the law allows,

you're denying the process." He also said that many of the

Government's witnesses were "liars" and warned the jury not to

be "railroaded into this patchwork quilt of lies and cowardice."

In rebuttal closing argument, the prosecutor responded to

these attacks:

Why in the world would he [Abrahante] come

in and lie, and it wasn't like he came in by

choice. Again, we got a forthwith grand jury

subpoena and made him come in, and he was

hesitant to do so, according to Special Agent

Reiner.

He's got no motivation to lie, and he and Naomi

[Rivera] teli stories that are consistent in some

ways, and off in little details, but that's a sign of

truth telling.

Now if we had gotten them together and said,

"Okay, let's get your story straight on all the

exact details," that would be a suggestion they

are not testifying about what they remember

independently but what is being concocted, and

that's not what was done here.

Feliciano argues that in the closing statements quoted above,

the prosecutur vouched for the credibility of the Government's

witnesses and testified about the Government's pre-trial

relations with these witnesses.

Also in their summations, defense counsel pointed to what

they considered to be the lack of forensic evidence connecting

the defendants to the murder. Alex Rivera testified that Pagan

and Feliciano used a Nissan Stanza on the night of the shooting.

Abrahante testified that on the night of the shooting, Pagan _

picked up Ramos and Feliciano at Naomi Rivera's house and

that Pagan was driving a Volkswagen Jetta. As the

Government admits, nothing of forensic value was recovered

from either car.

The prosecutor responded to the challenge concerning the

lack of forensic evidence in her rebuttal summation:

We did check the cars. We analyzed them for

forensic evidence. They went over them very

carefully, even though it was months after the

fact and the likelihood of finding evidence was

small. That was done so that if there- was

anything there that either pointed to these

defendants or pointed elsewhere, we would

know about it.

Feliciano contends that the prosecutor here improperly

invoked the integrity of the United States Attorney's Office and,

in effect, testified as to the forensic examination of the vehicles.

"A prosecutor's improper summation results in a denial of due

process when the improper statements cause™ substantial

prejudice to the defendant . . . . Determining the existence of

substantial prejudice involves three factors: the severity of the

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misconduct; the measures adopted to cure the misconduct; and

the certainty of conviction absent the improper statements."

United States v. Modica , 663 F.2d 1173, 1181 (2d Cir. 1981)

(citations omitted). "Defendants who contend that a

prosecutor's remarks warrant reversal face a heavy burden,

because the misconduct alleged must be so severe and

significant as to result in the denial of their right to a fair trial.”

United States v. Rahman, 189 F.3d 88, 140 (2d Cir.) (internal

quotation marks omitted), cert. denied, 528 U.S. 1094, 145

L.Ed. 2d 698, 120 S.Ct. 830 (1999). "A prosecutor may not

properly vouch for the credibility of a witness. However, the

government is allowed to respond toan argument that impugns

its integrity or the integrity of its case . . . and when the defense

counsel have attacked the prosecutor's credibility or the

credibility of the government agents, the prosecutor is entitled

to reply with rebutting language suitable to the occasion."

United States v. Thai, 29 F.3d 785, 807 (2d Cir. 1994) (citations

and internal quotation marks omitted).

Prior to the statements objected toand without objection, the

prosecutor in her rebuttal referred to Naomi Rivera's testimony

that she considered herself a friend of Feliciano and was the

girlfriend of Feliciano's brother. The prosecutor also made

reference to Abrahante's testimony, stating that Abrahante was

"an associate of Feliciano [who] lives in that area [and who]

knows these people." Also, in the portion of the Government's

rebuttal challenged by Feliciano, theprosecutor's statement that

Abrahante "was hesitant to [testify]' makes explicit reference

to the testimony of Special Agent Reiner to that effect. Given

the defense's statements challengng the credibility of the

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Government's witnesses and the defense's accusation that the

Government was willing to "do anything" to convict the

defendants, we find that the Government's response was within

permissible bounds to the extent that it referred the jury to

evidence at trial concerning Naomi Rivera and Abrahante, on

the basis of which the jury could judge whether either witness

had a motivation to lie. See Thai, 29 F.3d at 807. We note

further that FBI Special Agent Peter Lavelle's testimony that the

two cars had been searched provided a basis for the prosecutor's

statement that "they went over [the cars] very carefully, even

though it was months after the fact and the likelihood of finding

evidence was small."

While we thus conclude that much of the challenged portion

of the Government's rebuttal summation was justified as a

response to the defendants’ vigorous challenges to the integrity

of the Government's case and by reference to the testimony of

the Government's witnesses, we feel compelled to note that the

prosecutor strained permissible bounds in asserting that the

Government did not coach Naomi Rivera and Abrahante to

make their testimony consistent and in stating that "we checked

the cars." These statements come perilously close to testimony

on the prosecutor's part. Nevertheless, we find that any

prejudice that might arguably have been caused by these

remarks was sufficiently dispelled by the district court's prompt

responses and by its final instructions to the jury. See, e.g.,

Mapp, 170 F.3d at 338 ("Any prejudice arguably caused by the

prosecutor's remarks was substantially eliminated by a curative

instruction promptly given by the trial judge.").

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When Feliciano's counsel objected to the prosecutor's

statements regarding the credibility of its witnesses, the district

court stated that: ~

it is the jurors’ recollection of what the evidence

was that controls, and if there is an

inconsistency, it is their prerogative, as they've

been told before and will be told again, to draw

their own conclusions as to the evidence itself,

and what the inferences are that are reasonable

to be drawn.

When Feliciano's counsel objected to the prosecutor's

statements about the forensic examination of the cars, the

district court said:

No, she's not testifying... . She's characterizing

the evidence as she sees it. If she's correct, then

_Jsic] the jury can react accordingly. If the jury

does not credit her version of the evidence, they

are free to draw their own conclusions as to the =

evidence....

In addition, prior to the parties’ summations and, again, prior

to the jury's deliberations, the district court instructed the jury

that counsel's arguments are not evidence and that, while the

parties may suggest to the jury what the jury should conclude

from the evidence, "it is your recollection and interpretation of

the evidence that controls. What the lawyers say is not binding

upon you.”

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Accordingly, we conclude that any prejudice arguably caused

by the challenged portions of the prosecutor's rebuttal

summation was sufficiently corrected by the district court.

F, The Sentencing of Nelson Gonzalez

With respect to punishment, the VCAR states, in pertinent

part, that:

(a) Whoever . . . for the purpose of gaining

entrance to or maintaining or increasing position

in an enterprise engaged in racketeering activity,

murders . . . any individual in violation of the

laws of any State or the United States . . . shall

be punished --

(1) for murder, by death or life imprisonment, or

a fine under this title, or both .. .

18 U.S.C. § 1959(a)(1) (emphasis added). The jury having

found all three defendants guilty on Count Two (the substantive

murder count under Section 1959(a)(1)), district court

sentenced each of the defendants to life imprisonment. n9 At

Gonzalez's sentencing, the court stated, with respect to Section

1959(a)(1), that "the law says what the law says, and the law

says that I must impose a sentence of life imprisonment upon

you." nl0

n9 Based on their offense levels and criminal history

categories, each defendant was also subject to life

imprisonment under the Sentencing Guidelines.

n10 Gonzalez was also sentenced to ten years' imprisonment

on the conspiracy count (Count One), to run concurrently

with his sentence for Count Two.

Gonzalez argues that Section 1959(a)(1), by its plain

language, provides the option that one convicted of VCAR

murder may be punished by a fine only. He contends that the

district court's statement that "I must impose a sentence of life

imprisonment upon you" shows that the district court

overlooked this option and mistakenly thought that Section

1959(a)(1) provided a term of life imprisonment as a mandatory

minimum. He argues therefore that remand to the district court

for resentencing is required. We reject this argument.

Whether the district court misunderstood its sentencing

authority is reviewed de novo. See United States v. Hurtado, 47

F.3d 577, 585 (2d Cir. 1995). At the sentencing of each

defendant, the district court explicitly rejected the possibility of

a fine on the ground that no defendant had assets from which a

fine of a magnitude appropriate to the offense could be paid.

There was, therefore, no realistic possibility of a fine as a

satisfactory possibility for punishing the defendants for the

brutal, execution-style murder of a 16-year old boy. Given this

finding, it was reasonable for the district court to conclude that

it had no realistic choice but to sentence the defendants to life

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imprisonment. Accordingly, we reject Gonzalez's claim that

remand for resentencing is required in this case.

G. Constitutional Challenges

On appeal, Pagan raises several constitutional challenges that

were not raised below. He argues that the VCAR is

unconstitutional on its face bécause: it fails to provide

constitutionally sufficient notice as to what conduct is

prohibited; it impermissibly imputes the conduct of third parties

(the other members of the enterprise) to the defendant; it fails

to assure that organized crime will be the subject of

prosecution; and it impermissibly predicates a defendant's

criminal liability on the basis of his-status. Pagan also argues

that the VCAR was unconstitutionally applied in this case

because the district court failed to require proof of temporal,

relational, and/or quantitative relationships that Pagan asserts

were required by various elements of the VCAR, and because

the district court failed to apply the jurisdictional element of the

VCAR to require that the enterprise be engaged in interstate

commerce at the time the underlying violent crime was

committed.

"Virtually all circuits in recent years have addressed

constitutional challenges to criminal statutes [raised for the first

time on appeal] and have either refused to address them because

the defendants had neglected to raise them below, or decided to

reach them only upon determining that the lower court's failure

to address them constituted ‘plain error." United States v.

Baucum, 317 U.S. App. D.C. 63, 80 F.3d 539, 541 (D.C. Cir.

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1996) (per curiam)(citing cases). There is no reason why

Pagan's constitutional challenges could not have been raised

below, where he had ample opportunity to raise them and where

the district court would have had the opportunity to address

them. nll Accordingly, we find that Pagan waived these

challenges. See United States v. Griffiths, 47 F.3d 74, 77 (2d

Cir. 1995); United States v. Mennuti, 679 F.2d 1032, 1036 (2d

Cir. 1982). ‘

nll Similar challenges to the VCAR have been made in

several cases in this Circuit, many of them prior to the trial

of the case at hand. See, e.g., Torres, 129 F.3d at 717

(raising facial Commerce Clause challenge to § 1959);

Cutolo, 861 F. Supp. at 1145 (raising facial and as applied

vagueness challenges to § 1959); United States v. Lee, 862

F.Supp. 1129, 1138-39 (S.D.N.Y. 1994) (raising a

vagueness challenge to § 1959); United States v. Rahman,

1994 U.S. Dist. LEXIS 10151, at *7, No. S3 93 Cr. 181,

1994 WL 388927, at *3 (S.D.N.Y. July 22, 1994)

(challenging indictment under § 1959 for failing to inform

defendant of the essential nature of the racketeering

enterprise); United States v. Soler, 1998 U.S. Dist. LEXIS

4666, No. 94 Cr. 533, 1998 WL 167327, at *3 (S.D.N.Y.

Apr. 9, 1998) (raising claim that to convict under § 1959, the

Government must prove predicate acts for the racketeering

enterprise element); United States v. Booth, 1999 U.S. Dist.

LEXIS 19190, No. 99 Cr. 378, 1999 WL 1192317, at *3c-*6

(S.D.N.Y. Dec. 14, 1999) (raising facial and as applied

vagueness challenges to § 1959).

-

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Moreover, even assuming these challenges were not waived

and assuming arguendo that it was plain error not to address

them, we find that any such putative error did not "seriously

affect[ ] the fairness, integrity or public reputation of judicial

proceedings." Olano, 507 U.S. at 736. None of the various

_— notice problems raised by Pagan are problems alleged to infect

_ the charges of murder and conspiracy, based on Connecticut

law, of which he was convicted. None of Pagan's arguments

raise the possibility that he could not have known that he was

committing a very serious felony when he participated in the

murder of Edwin Ramos. All of the challenges go to the issue

of federal jurisdiction. The only issue hinging on the success of

Pagan's challenges, therefore, is whether he should have been

tried in federal or state court. We do not find that this issue

implicates the fairness, integrity or public reputation of judicial

proceedings in the circumstances of this case. nl2 Thus, the

fourth prong of the Olano plain error inquiry is not satisfied

here. Accordingly, in our judgment we cannot disturb

defendants’ convictions under § 1959 on the basis of these

constitutional challenges raised for the first time on appeal.

n12 We note further that in reviewing Feliciano's sufficiency

of evidence claim, we have given limited review to the jury

instruction issue with respect to the VCAR's racketeering

element, to the issue of how an enterprise acts, and to the

issue of predicate racketeering acts.

CONCLUSION

We have considered all of appellants’ other arguments and

find them, to be without merit. The judgment of the district

court is affirmed in all respects.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Roseann B. MacKechnie,

Clerk

At a Stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 13" day of

November, two thousand.

Docket No. 99-1289, 99-1290, 99-1318

USA,

Appellee,

v.

FELICIANO, et. al.,

Defendants-Appellants

A petition for panel rehearing and a petition for

rehearing en banc having been filed herein by the appellants,

Ruben Feliciano and Nelson Gonzalez,

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Upon consideration by the panel that decided

the appeal, it is Ordered that said petition for

rehearing be DENIED.

It is further noted that the petition for rehearing en banc

has been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that no

such judge has requested that a vote be taken thereon.

For the Court

ROSEANN B. MacKECHNIE, Clerk

By:

Beth J. Meador, Administrative Attorney

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