MINER, Circuit Judge:
Defendants-appellants appeal from judgments of conviction and sentence entered in the United States District Court for the Northern District of New York (Mordue, C.J.), for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68. All were convicted under a one-count indictment charging conspiracy to violate the provisions of 18 U.S.C. § 1962(c) (prohibiting participation in the affairs of an enterprise through a pattern of racketeering activity). The conspiracy was charged as a violation of 18 U.S.C. § 1962(d). Two of the defendants-appellants entered into plea agreements prior to trial. A jury found that the remaining five appellants agreed to participate in a pattern of racketeering activity that included conspiracy to distribute and/or possess with intent to distribute 50 or more grams of crack cocaine. The district court sentenced all defendants-appellants to terms of imprisonment. The terms ranged from 214 months to life. The sentences included terms of supervised release of four to five years and $100 special assessments.
On appeal, the defendants-appellants now bring a host of challenges to their convictions and sentences. We examine with particularity three of the arguments raised by them: (1) whether the existence of a RICO enterprise is a necessary element that the government must prove to establish a RICO conspiracy in violation of 18 U.S.C. § 1962(d); (2) whether there was sufficient evidence to prove an agreement that an enterprise would be established; and (3) whether the district court's failure to require unanimity as to which predicate acts the defendants agreed to commit was reversible error, the district court having instructed the jury that it must find that each defendant agreed to commit at least two racketeering acts and agree unanimously on the type of racketeering acts each defendant agreed to commit. Because all of the defendants' claims are ultimately without merit, for the reasons that follow we affirm the judgments of conviction in all respects but remand defendant-appellant Gregory Thomas's case to the district court for resentencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
I. Prior Proceedings
This case arises out of the involvement of defendants-appellants in the Elk Block gang. The gang's territory, located in Syracuse, New York, was bordered by South Salina Street on the west, Interstate 81 on the east, Colvin Street on the north,
The indictment described fifty-four racketeering acts, including multiple occasions of narcotics possession and distribution, firearms possession, shootings, and murder.
Pursuant to a plea agreement executed March 21, 2006, appellant Charmish Singletary pleaded guilty to the conspiracy charged in the indictment and admitted to involvement in seven racketeering acts. By virtue of his plea, Singletary admitted
Pursuant to a sealed plea agreement executed February 27, 2006, appellant Ronnie Parnell also pleaded guilty to the conspiracy charge. On May 9, 2007, Parnell received a sentence of a 45-month term of imprisonment, a four-year term of supervised release, and a $100 special assessment. Parnell's term of imprisonment was reduced to 37 months on April 10, 2008, pursuant to an amendment to the crack-cocaine guidelines set forth in U.S.S.G. § 2D1.1(c). Parnell served his 37-month term of imprisonment, but on November 20, 2008, the district court held a revocation hearing at which Parnell admitted to violating five conditions of supervised release. The court then imposed a fifty-month term of imprisonment for Parnell's violations of supervised release. Judgment was entered December 1, 2008, and Parnell timely appealed on December 3, 2008.
In addition to appellants Singletary and Parnell, nine co-defendants, Billy J. Applins, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, and Skyler Willis, pleaded guilty and were sentenced to terms of imprisonment ranging from to 121 months, terms of supervised release of 4 to 5 years, and a $100 special assessment.
The remaining five appellants—Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, and Ismail Pierce—proceeded to trial on the indictment. The trial commenced on November 20, 2006. Cooperating defendants, who were former Elk Block gang members, and numerous law enforcement witnesses testified at trial regarding Elk Block's geographic territory, gang signs, graffiti, clothing, tattoos, drug dealing, use of firearms, and utilization of violence for the protection and maintenance of control over the cocaine base (crack) sales in Elk Block territory. At trial, there was also evidence of a multitude of shootings and several murders. On December 19, 2006, following four weeks of trial and two days of deliberations, the jury rendered guilty verdicts as to all five defendants including findings that Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, and Ismail Pierce each agreed to a pattern of racketeering activity that included conspiracy to distribute and/or possess with intent to distribute 50 grams or more of cocaine base.
The five appellants who proceeded to trial filed post-trial motions for judgment of acquittal, pursuant to Rule 29, and, alternatively, for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, raising various arguments as to the adequacy of the jury instructions, the
On May 14, 2007, appellants Jerrawn Thomas and William Robinson appeared in the district court for sentencing, and each received a term of imprisonment of life, a term of supervised release of five years in the event either is released, and a $100 special assessment. Judgment was entered on May 18, 2007, and Jerrawn Thomas timely appealed to this Court on that same day. William Robinson filed a timely notice of appeal on May 21, 2007.
On May 16, 2007, appellant Dennis Jones appeared in the district court for sentencing and received a term of imprisonment of thirty years, a term of supervised release of five years, and a $100 special assessment. Judgment was entered on May 18, 2007, and Jones timely appealed to this Court on May 22, 2007.
On May 23, 2007, Gregory Thomas appeared in the district court for sentencing and received a term of imprisonment of thirty years, a term of supervised release of five years, and a $100 special assessment. Judgment was entered in the district court on June 6, 2007, and Gregory Thomas's May 25, 2007 notice of appeal to this Court is deemed timely filed on June 6, 2007, pursuant to Federal Rules of Appellate Procedure 4(b)(2).
On January 12, 2009, Ismail Pierce appeared for sentencing in the district court and received a term of imprisonment of 324 months, a term of supervised release of five years, and a $100 special assessment. Judgment was entered on January 14, 2009, and Pierce's January 13, 2009 notice of appeal to this Court is treated as timely filed on January 14, 2009, pursuant to Federal Rules of Appellate Procedure 4(b)(2).
II. Evolution of the Elk Block Enterprise
At trial, the government's case-in-chief included testimony of numerous law enforcement officers and investigators who testified with regard to various matters relating to the gang and its members, including prior arrests of the appellants on drug and firearms charges, investigations of gang-related shootings, and evidence derived from the execution of search warrants. Elk Block members Billy Applins, Kelly, Parnell, Speights, and Andre Applins testified as cooperators. The government also introduced numerous exhibits including crack-cocaine and firearms that had been seized in prior investigations conducted by local law enforcement. The following is a summary of the evidence introduced at trial as part of the government's case-in-chief.
James Kelly ("Kelly"), an indicted co-conspirator and member of the Elk Block gang, testified at trial regarding the history of the Elk Block gang. Beginning in the early 1990s, a group of cocaine dealers operated in a neighborhood in the city of Syracuse that included South Salina Street, Elk Street, and McKinley Avenue (the "neighborhood"). They called themselves the "Ave. Boys," after McKinley Avenue. The Ave. Boys included co-defendants James Kelly ("Kelly") and Billy J. Applins ("Applins" or "Billy Applins") and appellant Dennis Jones ("Jones"), who sold crack-cocaine with Kelly and Applins.
Also in the early 1990s, a group of eleven-and twelve-year-old boys, including Ronnie Parnell, Ismail Pierce, Gregory Thomas, Jerrawn Thomas, and William Robinson, "hung out" in the neighborhood described above. They called themselves
Notwithstanding Elk Block's presence, there were other street gangs in the surrounding area. Each gang claimed an exclusive territory for drug dealing. To become a member in Elk Block, an individual had to be a current or former resident of the neighborhood or have relatives who lived there. As Kelly testified, "[y]ou got to live around [Elk Block territory] all your life or you got to be ... a family member of somebody that's in the gang." Even if an Elk Block member had moved away from the neighborhood, he could go back to that neighborhood to sell crack-cocaine. Co-defendant Nathan Speights testified that although he lived outside the neighborhood in 2002, he continued to deal drugs in Elk Block territory because "that's the area I'm from ... that's where I'm safe selling my drugs. That's where I know I'm going to make my money and nothing going to happen."
All of the appellants were known to each other by their nicknames, listed in a roster labeled "Elk Block Finest 2000" found during the execution of a police-led search of Pierce's apartment. For example, Jones was called Denny Man, Crazy D, or JJ; Pierce was Styles, Holiday, or Bird; Jerrawn Thomas was Piper or Jerod; Gregory Thomas was Earl or E-Z; and Robinson was Googs or Gugo.
Elk Block members also had a meeting place at the end of McKinley Avenue, which was a dead end at the top of a hill providing them with a view of anyone who might approach. Elk Block members met there to discuss, among other things, gang-related matters such as fights or "beefs" with rival gangs and how to retaliate against members of other gangs.
Elk Block members used various means to identify their territory and fellow members. For example, Elk Block members, including all of the appellants, used a hand sign forming an "E" to represent gang identity. Gang graffiti was painted on various buildings to identify their territory. For a brief period in the late 1990s, some Elk Block members adopted a cream-colored bandana as a way to identify themselves as members of the gang. Several members got tattoos identifying themselves with Elk Block. For example, Dennis Jones had a tattoo on his arm that stated "Elk Block Finest."
As to the sale of illegal drugs, the senior members of Elk Block routinely pooled their money and bought drugs to supply the other gang members, who in turn sold to users. For a long time, Elk Block members Billy Applins, James Kelly, and Israel Applins
Some of the younger gang members "graduated" and began dealing crack-cocaine in wholesale quantities. As part of their Elk Block membership, all of the appellants then sold crack-cocaine in Elk Block territory on a daily basis. They typically sold in small quantities. Sometimes they put $5, $10, or $20 pieces of crack in bags to sell; other times they sold "freestyle"—meaning they would carry a rock of crack around and break off a piece based on how much the crack-purchaser wanted. There were typically a number of gang members "out there and everybody want to get their crack off, they would rotate the sale. If some person got more than others, they might get more sales at that time than others. We kind of like just worked it out among ourselves." When the younger members sold crack, they kept a portion of the proceeds and used the balance to buy more crack from senior members or others. Drugs were often fronted (i.e., tendered without immediate payment), and sometimes the sellers pooled their money so they could buy a supply of crack-cocaine at a lower cost.
Elk Block members controlled the drug sales in their territory. They did not sell in rival gangs' territories, and members of rival gangs ordinarily did not try to sell in Elk Block's territory. As cooperating witness Nathan Speights testified: "[A]in't nobody going to sell drugs in our territory and we ain't going to sell drugs in their territory."
If non-Elk Block members tried to sell drugs in Elk Block territory, they would be met with violence. Gang members did not even enter the territories of rival gangs—much less sell drugs there—without trouble. When Elk Block was at war with a rival gang called Boot Camp, Speights explained that Boot Camp members "couldn't even ride down Salina [Street in a car] without having a problem." There was one occasion in the year 2000 when members of the north side Bloods gang tried selling out of a "crack house" in Elk Block territory. Elk Block gang member Jerome Thomas (the brother of appellant Jerrawn Thomas) discovered the rival crack house and went to that house to confront the Bloods members selling drugs there. An altercation followed, during which one of the members of the Bloods attempted to stab Jerome Thomas. A couple of hours later, Elk Block gang members Nathan Speights and Gregory Thomas saw gang members of the Bloods driving in a car in Elk Block territory. Speights and Thomas ran through a "shortcut" to get closer to the car, and when the car stopped at a stop sign, they began shooting at the Bloods members in the car. Recalling the incident, Speights testified that "[i]t was a beef with people that was selling drugs in our neighborhood that ain't have no business out there."
In 2003, Kelly lost $53,000 when he was arrested in New York City prior to a drug buy. After that, Jones, Pierce, Jerrawn Thomas, and Robinson "graduated" and started buying their drugs elsewhere, omitting Kelly as a middleman. Gregory Thomas, however, remained "just the same
Evidence at trial also established that Elk Block members routinely carried firearms in order to protect their territory and drug trade and to retaliate against rival gangs. All of the appellants carried guns. Dennis Jones carried a.357 chrome revolver "almost all the time." William Robinson usually carried a black .40-caliber Glock automatic pistol. At the end of 1999 or beginning of 2000, because Elk Block had started "beefing" with Boot Camp, Ronnie Parnell gave Jerrawn Thomas $300 so that Thomas could buy a gun. Thomas bought a .357 automatic.
Elk Block members also had access to "gang guns." These guns were hidden in specific locations in Elk Block territory, such as abandoned houses, where they could be readily accessed. When a gang member was arrested on a drug charge, he was sometimes able to get the charge dismissed by surrendering one of the gang's guns to the police.
III. Violent Conflicts
Evidence at trial included detailed descriptions of Elk Block's disputes and skirmishes with rival gangs. Applins testified that Elk block was on "relatively good terms" with the nearby Boot Camp gang until 1999. The period of urban tranquility ended when two Boot Camp members— Jeffrey Connors and Tron Wallace— robbed Applins of ten ounces of crack-cocaine. That robbery occurred sometime in late 1999, when Applins arranged to sell Boot Camp members Connors and Wallace ten ounces of crack-cocaine. They were to meet at a spot in Elk Block territory. Wallace arrived by car, and Applins—also in a car—drove up behind Wallace on Dougall Street. Applins got out of his car, approached Wallace, who was in his own car, and tendered to Wallace the crack-cocaine. When Applins walked around to the passenger side of Wallace's car to enter that car, Wallace drove off without paying for the crack-cocaine. Applins then entered his own car and chased down Wallace for about a block. Wallace then stopped his car, the trunk "popped" open, and "Connors came out with a large caliber weapon and started shooting at [Applins]." Applins then backed up his vehicle and drove away to the intersection of State and Colvin, where he exited and left his vehicle. Applins thereafter armed himself but was unsuccessful in tracking down Connors and Wallace. Likewise, his attempt to hire someone to "shoot [Connors] up" was unsuccessful. After the robbery and shooting, Elk Block was at "war" with Boot Camp. Two other gangs— Freestyle and Brick Town—joined the war as allies of Boot Camp.
On April 14, 2000, Elk Block members including Darrel Harlow and Tory Jackson saw two Brick Town members—"Prince" (Joseph Bryant) and Divon Hunter—in their territory. Prince was arguing with his girlfriend, who is Darrel Harlow's cousin. Darrel Harlow stated to Prince: "[T]his is my cousin (referring to Prince's girlfriend), and you ain't even from out here...." Harlow and other Elk Block members then beat up Prince and Hunter. Prince, it turned out, was related to Connors. Afterwards, Elk Block members, including Kelly, Speights, Jerrawn Thomas, and Israel Applins, were standing and talking at the corner of McKinley Avenue and State Street when Jeffrey Connors of Boot Camp drove up to them, exited the vehicle with a firearm, and asked them what had happened to Prince and who was responsible for the assault on Prince. The Elk Block members "back[ed] up" because Connors had a gun in his hand. Before
Soon thereafter, Connors drove up to the house on the 2300 block of South Salina Street where the Elk Block members were talking, got out of his car, and with his gun held at his side demanded to know who had assaulted Prince. Jerrawn Thomas then shot Connors from the top porch of the house, hitting Connors in the chest. Screaming, Connors fell to the ground, firing off shots into the air. Jerrawn Thomas jumped off the porch, ran over to Connors, and shot him again as he lay on the ground. Connors was rushed to the hospital where he died a short time later.
After Jerrawn Thomas shot Connors, he and the other Elk Block members fled the neighborhood so that they would not be there when the police came to investigate the shooting. After some discussion among them it was decided that Thomas could claim self-defense because Connors had a gun. After staying at various hotels, Thomas turned himself in. Investigators were unable to develop any evidence to disprove Jerrawn Thomas's claim of self-defense. Ultimately, Thomas pleaded guilty to a gun-possession charge and was sentenced to a term of imprisonment.
On February 20, 2000, Elk Block members, including Kelly, Israel Applins, and Jones, were at Gersey's Bar. Also at the bar were Boot Camp members, including Tron Wallace. The Elk Block members realized that there were Boot Camp members waiting for them outside. Dennis Jones and three of the other Elk Block members were carrying guns. When the Elk Block and Boot Camp members left the bar, people "started shooting, everybody started running...." Tron Wallace was shot in the foot. Jones was charged with shooting Wallace, which he denied. Billy Applins bailed him out, using drug proceeds. On June 27, 2000, Boot Camp gang members Karo Brown and Charles Myles, in a drive-by shooting in Elk Block territory, hit Robinson in the chest, causing serious injury.
On July 30, 2000, several Elk Block members were together on McKinley Avenue when Speights suggested going to Sabatino's Restaurant, because Boot Camp members might be there. The other members agreed, and they left in several cars for the restaurant "kind of looking for trouble." Those who went included Speights, Kelly, Jones, and Parnell. Jones drove there with Kelly. Once at the restaurant, several gang members, including Kelly, went in while others waited outside. Kelly left his gun with Jones, who waited outside. After a while, some Boot Camp members, including one named Delmar Everson, began approaching the restaurant entrance from the back parking lot. Israel Applins started shooting at them, and they ran behind the building and got back into their car, which was being driven by a female associate. Jones and Kelly entered their car and gave chase. Many shots were fired. When Kelly exited the restaurant, Jones handed Kelly his gun,
Following the exchange outside Sabatino's Restaurant, Elk Block gang members congregated at the top of McKinley Avenue to discuss the events of the evening. Jones and Kelly thought they had hit Everson and talked about getting rid of the gun. When police reported to the scene, they found ten 9mm casings and a slug on the driver's seat of the car in which Everson had been riding. The driver's side window was blown out. The female associate who drove the car filed a complaint with the police. The next day, Jones, Israel Applins, and another gang member— Fred Wright—were arrested for reckless endangerment. The charges were dropped however; Israel Applins "paid [the driver] off to get the charges dismissed."
Another shooting occurred in August 2000 when Gregory Thomas was selling drugs in Elk Block territory in the early morning hours. Thomas was shot in the foot by a member of the rival gang Freestyle in a drive-by shooting.
On August 24, 2000, Speights, Pierce, and Robinson were sitting in a parked car on Elk Street when Freestyle member "Noody" drove up and shot at them. Noody's car was so close that Speights could not get out of the driver's side door. Speights was hit six times—three times in the chest and three times in the leg—while he was trying to get out of the passenger side. Some time after Speights got out of the hospital, he, Israel Applins, and Pierce went to a house in Boot Camp territory looking for Charles Myles (who had been the driver in the June 2000 shooting of Robinson), and any other Boot Camp members. When they saw Myles in his car, they shot at him, hitting him in the arm.
On January 15, 2003, Robinson and Jerrawn Thomas—who recently had been released from prison on his sentence for weapon possession—had a van that they had "rented" from a crack-purchaser, and Speights was driving around with them. Jerrawn Thomas and Robinson were both carrying handguns. They spotted two Brick Town members in a car—"slippin" in Elk Block territory—and followed them. Speights drove around the block and used the van to cut the Brick Town car off at the corner of Montgomery Street and Burt Avenue. Robinson slid open the van door (which was facing the Brick Town car) and started shooting, ejecting shell casings into the street. Jerrawn Thomas was sitting on the other side of the van, so he could not shoot without hitting Robinson. When the Brick Town car turned to get around the van, Thomas shot the glass out of the van window and reached out and then shot at the Brick Town car as it drove past them. During this incident, Boot Camp member Divon Hunter was shot in the hand.
On April 13, 2003, there was a major confrontation shortly after Jerrawn Thomas's release from prison. Members of Boot Camp and its allies, Freestyle and Brick Town, were due to attend a birthday party at the Komfort Zone bar on South Salina Street. According to the testimony of Nathan Speights, Thomas wanted to go to the party "to be seen." Thomas's attendance at the Komfort Zone bar was the "first time" he had been seen "out," which signified that he was "back on the scene" after his release from jail. Thomas also wanted to avenge the death of Elk Block member Fred Wright, who had been shot and killed by a Brick Town member while Thomas was in jail. When Thomas arrived
After the Komfort Zone fight, Kelly, Billy Applins, Speights, Robinson, Jones, Pierce, and several other Elk Block members congregated at their meeting place at the top of McKinley Avenue to discuss what had happened and to make plans. Everyone was angry with Jones because he had not joined in the fighting at the bar. Pierce wanted to go to "the Bricks" (Brick Town gang's territory) and do a shooting. Pierce was "looking for no one person, anybody from the Bricks or Boot Camp that's down there, that's who he was going to look for." Shortly thereafter, Jerrawn Thomas, Speights, and Robinson got in a car and headed for a neighborhood called Pioneer Homes, where a Boot Camp member's girlfriend and child were living. Robinson was carrying his .40 caliber Glock pistol. Thomas was also carrying a gun. Speights was driving. The three men spotted Boot Camp members congregating on a road called Frisbie Court. Speights stopped the car and Thomas and Robinson jumped out. They emptied their weapons into the crowd, jumped back into the car, and drove off. Apparently, no one was injured at the Frisbie Court shooting. The next day, Elk Block members congregated at Robinson's house to talk about what else they were going to do. They decided to retaliate against Boot Camp with violence: "anywhere we see anybody from Boot Camp, Brick Town, anybody, we just gonna give it to them...."
Two weeks later, on April 27, 2003, Jerrawn Thomas and Robinson were driving around near the home of Boot Camp gang member Delmar Everson. They spotted Everson walking near a paint store next to Everson's house. Thomas pulled into the paint store parking lot. Robinson got out and shot Everson several times, hitting him in his neck, arm, and back, and killing him.
On June 27, 2003, Elk Block member Demetrius Elmore was shot and killed in Boot Camp territory by members of the Boot Camp gang. After Elmore was shot, Billy Applins arranged to sell Jones a gun and a bullet proof vest. He also gave a gun to Gregory Thomas, which was available to all the Elk Block members "working" with Gregory Thomas on the "late night shift" (midnight to the morning). The government's case-in-chief was not limited to the foregoing violent acts of Elk Block, as the evidence included other gang-related shootings by and of Elk Block members.
I. Whether a Conviction for RICO Conspiracy Requires Proof of an "Enterprise"
The defendants argue that a conviction for RICO conspiracy under 18 U.S.C. § 1962(d) cannot be upheld where the government has failed to prove the
Shortly thereafter, the court gave the following instruction:
(emphasis supplied). After instructing the jury as to the nature and definition of an "enterprise" for purposes of RICO, the court further instructed that "[t]he government is not required to prove each and every allegation about the enterprise or the manner in which the enterprise operated." Appellants challenge so much of the instruction as would allow the jury to convict without a finding that an enterprise existed.
"We review challenged jury instructions de novo but will reverse only if all of the instructions, taken as a whole, caused a defendant prejudice." United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). "[T]he defendant `bears the burden of showing that the requested instruction accurately represented the law in every respect and that, viewing as a whole the charge actually given, he was prejudiced.'" United States v. Nektalov, 461 F.3d 309, 313-14 (2d Cir.2006) (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004)). A "jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law." Bok, 156 F.3d at 160. The jury instruction here, although inconsistent, properly allowed for conviction upon proof of an agreement to form an enterprise.
The RICO conspiracy statute under which the defendants were convicted, 18 U.S.C. § 1962(d), provides: "It shall be
In turn, RICO defines "enterprise" as "any ... group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). A RICO enterprise "is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). RICO reaches "a group of persons associated together for a common purpose of engaging in a course of conduct." Id. at 580, 583, 101 S.Ct. 2524. We have held that "the existence of an association-in-fact is oftentimes more readily proven by `what it does, rather than by abstract analysis of its structure.'" United States v. Coonan, 938 F.2d 1553, 1559 (2d Cir.1991) (quoting United States v. Bagaric, 706 F.2d 42, 56 (2d Cir.1983)). For this reason, we have stated that "proof of various racketeering acts may be relied on to establish the existence of the charged enterprise." Id. at 1560; see Boyle v. United States, ___ U.S. ___, 129 S.Ct. 2237, 2245-47, 173 L.Ed.2d 1265 (2009) (proof of the enterprise and the pattern of racketeering acts may "coalesce" and be derived from same sources); id. at 2245 (existence of enterprise may be inferred from the pattern of racketeering acts); United States v. Ferguson, 758 F.2d 843, 853 (2d Cir.1985) ("RICO charges may be proven even when the enterprise and predicate acts are functionally equivalent, and the proof used to establish them coalesced." (citations, internal punctuation, and internal quotation marks omitted)).
As to an "association-in-fact enterprise," the Supreme Court has held that "an association-in-fact enterprise must have an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages." Boyle, 129 S.Ct. at 2244 (internal quotation marks omitted). However, an association-in-fact enterprise under RICO need not have a hierarchical structure, a chain of command, or other business-like attributes. See id. at 2245. "From the terms of RICO, it is apparent that an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise's purpose." Id. at 2244.
Although we have not expressly held that the existence of a RICO enterprise is not a necessary element to be proven for a conviction of RICO conspiracy, the Supreme Court in Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997), provided some guidance as to what is necessary for a RICO conspiracy conviction under § 1962(d). In Salinas, the defendant, who was convicted of one count of RICO conspiracy but acquitted of one count of violating substantive RICO, 18 U.S.C. § 1962(c), argued that his conviction for conspiracy to violate RICO could not stand because the jury was not instructed, and the government had not proven, that "he himself committed or agreed to commit the two predicate acts requisite for a substantive RICO offense under § 1962(c)." 522 U.S. at 61, 118 S.Ct. 469. Recognizing a circuit split as to whether a RICO conspiracy conviction requires
The Supreme Court also rejected the proposition that a conviction for RICO conspiracy requires proof that a substantive offense was committed:
Salinas, 522 U.S. at 65-66, 118 S.Ct. 469; accord United States v. Pizzonia, 577 F.3d 455, 463 (2d Cir.2009) ("Just as the evidence used to establish the enterprise and pattern elements may in particular cases coalesce, so too may the evidence used to prove those elements and a conspiratorial agreement to engage in racketeering." (internal quotation marks omitted) (citing United States v. Martino, 648 F.2d 367, 382-83 (5th Cir.1981) ("Prosecution of RICO substantive and conspiracy charges expectedly involves considerable overlap in the evidence."))). We have held that for purposes of establishing a RICO conspiracy, "the government [is] required to prove only the existence of an agreement to violate RICO's substantive provisions. Thus, the government necessarily ha[s] to establish that [the defendant] agreed with his criminal associates to form the RICO enterprise...." United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987) (emphasis supplied), abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370
In United States v. Zichettello, 208 F.3d 72 (2d Cir.2000), we further explained that to be convicted as a conspirator under RICO, "one must be shown to have possessed knowledge of only the general contours of the conspiracy." 208 F.3d at 100; see Yannotti, 541 F.3d at 122 (stating that under Salinas "to be found guilty of RICO conspiracy, a defendant need only know of, and agree to, the general criminal objective of a jointly undertaken scheme"); see also Zichettello, 208 F.3d at 98-99 (stating that "under the Supreme Court's decision in Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), the [Supreme] Court ruled only that for a defendant to be convicted of a substantive RICO violation under section 1962(c), the defendant must have taken some part in directing the enterprise's affairs. No such requirement exists under Section 1962(d), however." (citing Salinas, 522 U.S. at 63-64, 118 S.Ct. 469)); Baisch v. Gallina, 346 F.3d 366, 376-77 (2d Cir.2003) (quoting Salinas, 522 U.S. at 65, 118 S.Ct. 469); United States v. Ciccone, 312 F.3d 535, 542 (2d Cir.2002) (stating that a "conspirator charged with racketeering conspiracy need not commit ... the predicate acts ... to be found guilty of the racketeering conspiracy, for it suffices that he adopt the goal of furthering or facilitating the criminal endeavor" (internal quotation marks omitted)); United States v. Rastelli, 870 F.2d 822, 828 (2d Cir.1989) (stating that a defendant may agree to join a RICO conspiracy without knowing the identities of "all the other conspirators" and without "full knowledge of all the details of the conspiracy"). We accordingly conclude that Salinas counsels that the establishment of an enterprise is not an element of the RICO conspiracy offense.
In this case, we agree with the appellants that the district court's instructions were conflicting and, in part, erroneous. Appellants requested the erroneous instruction that the government was required to prove the existence of an enterprise. The court gave the instruction as requested. Although one of the appellants' attorneys (Pierce) mentioned potential jury confusion, there was never any suggestion as to how the inconsistency might be resolved. Further, the court gave defense counsel its charge in writing before reading it to the jury, and no such suggestion to resolve the inconsistency was made. Indeed, the appellants had an obvious interest in retaining the erroneous
II. Sufficiency of the Evidence Challenges
The appellants also contend that there was insufficient evidence to support a finding of an agreement to form an enterprise. As to sufficiency-of-the-evidence challenges, we must credit every inference that could have been drawn in the government's favor, and we must view the evidence as a whole. See, e.g., United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.2003); United States v. Podlog, 35 F.3d 699, 705 (2d Cir.1994). Accordingly, "[i]n challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden." Hamilton, 334 F.3d at 179. This Court "defer[s] to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998). A conviction must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If the court "concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999). "In cases of conspiracy, deference to the jury's findings is especially important ... because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Snow, 462 F.3d 55, 68 (2d Cir.2006) (citation and internal quotation marks omitted). As to RICO conspiracy, the Supreme Court has held that
Salinas, 522 U.S. at 65, 118 S.Ct. 469; see also id. ("A person ... may be liable for conspiracy even though he was incapable of committing the substantive offense."); United States v. Viola, 35 F.3d 37, 43 (2d Cir.1994) ("A defendant can be guilty of conspiring to violate a law, even if he is not among the class of persons who could commit the crime directly."); accord Goren v.
Here, we have little difficulty concluding that the government proved beyond a reasonable doubt that the defendants agreed that an enterprise would be established (and also that one was actually established) and that the appellants were aware of the general nature of the conspiracy. The evidence demonstrated, for example, that Elk Block gang members congregated daily in their territory, marked their territory with graffiti, received tattoos signifying their membership in the gang, and flashed the Elk Block hand sign in public places to "represent" that they were members of Elk Block. Elk Block members also had a common function and purpose: "just basically sell drugs, protect our territory, and protect each other, that's it." The evidence also demonstrated that Elk Block served a particular territory and drug market and that as to this "territory" and Elk Block's drug dealing in that territory, the evidence clearly established that individual Elk Block members agreed to provide, and did provide, protection (i.e., firearms and violence) for their fellow gang members.
Appellants contend that there was insufficient proof of an enterprise because: the gang members who supplied the street sellers in Elk Block could supply other people as well; the street sellers could sell outside Elk Block territory should they choose to do so; and the gang members could buy from whomever they wished. However, the evidence was clear that drug sales in Elk Block territory could be made only by Elk Block members or, on rare occasions, with their permission. Although Applins testified that he sold crack-cocaine to Elk Block street-level dealers who kept their own profits, there was overwhelming evidence that the dealers paid part of their profits to Applins and the other senior members so that the latter could purchase more drug supply in New York City. Indeed, there was sufficient evidence presented at trial to permit the jury to conclude that senior Elk Block members repeatedly pooled the gang members' proceeds to buy crack in wholesale quantities, clearly indicating the existence of an enterprise and common purpose.
To the extent that the appellants argue that no Elk Block member gave or obeyed orders, and, thus, no agreement or structured enterprise existed, we reject these contentions because the government is not required to prove that Elk Block had an
Further evidence of the defendants' agreement to form an enterprise and participate in its affairs included instances where Kelly, Israel Applins, and Billy Applins provided other assistance to gang members when necessary. Such assistance included paying bail (from proceeds of Elk Block drug sales) and attorney's fees when a member was criminally charged, and "fronting" drugs to members so they could get back on their feet after serving a jail sentence. While Billy Applins was in jail on drug charges, Kelly "took over [Applins's] position, was making sure everything was running smooth at the time." After Applins got out of jail, he was on probation and began selling his drugs "primarily through James Kelly." When violence between Elk Block and rival gang Boot Camp broke out after Applins was the victim of a drug robbery, Applins saw that Elk Block needed "fire power" because Boot Camp had more guns than Elk Block did. He then conspired with senior Elk Block member Darrel Harlow to purchase guns in Georgia. Applins used proceeds from Elk Block's narcotics business to buy the guns. When the guns arrived, Billy Applins gave them to Israel Applins to distribute to certain Elk Block gang members. He also gave Gregory Thomas a gun so that Thomas and other gang members could protect themselves.
With respect to Jones, evidence at trial also included a two-by-three-foot framed photograph of Jones with each hand making the Elk Block sign. This photograph was hanging in the livingroom in an apartment that had "Jones" on the mailbox and contained, in a drawer in the main bedroom, a composition book that said "ELK BK Dennis Jones Dennyman" on the cover, and another notebook that said "ELK BK" and "AVE Boys" and had Jones's resume in it. The evidence also included the fact that in around 1999, Jones got a tattoo that said "Elk Block Finest." Other gang members, however, had tattoos that
With regard to appellant Ismail Pierce, we conclude that the government presented sufficient evidence upon which the jury could rely to find that Pierce agreed to participate in the conspiracy. For example, Kelly testified that he sold crack to Pierce and that Pierce sold crack to customers on the streets in Elk Block territory on a daily basis. There was also evidence that Pierce fired shots at Rodney Hill, a Boot Camp gang member, during an altercation between Elk Block and Boot Camp gang members at the Komfort Zone bar. Moreover, the government introduced rap lyrics Pierce wrote which revealed Pierce's knowledge of the Elk Block gang and the gang violence. See United States v. Jones, No. 05-CR-322 (NAM), 2007 WL 1428464 (N.D.N.Y. May 11, 2007) (summarizing trial evidence and rejecting defendants' sufficiency of the evidence challenges raised in post-trial motions).
As to Jerrawn Thomas, the evidence at trial demonstrated that he sold crack-cocaine in Elk Block territory on a regular basis and that Thomas shot and killed Jeffrey Connors, a Boot Camp gang member, in a gang related incident. The government also presented evidence that Thomas shot into a crowd at Frisbie Court in an attempt to retaliate against Boot Camp gang members following a gang altercation at the Komfort Zone bar. Id.
With regard to William Robinson, the government also adduced sufficient evidence upon which the jury could find beyond a reasonable doubt that Robinson agreed to participate in the conspiracy. For example, co-conspirators testified that Robinson regularly sold crack cocaine in Elk Block territory and carried a gun. Evidence also demonstrated that Robinson attempted to retaliate against the Boot Camp gang following the altercation at Komfort Zone, by shooting numerous shots into a crowd gathered in Frisbie Court. There was also evidence that members of rival gangs shot Robinson on at least two occasions. Id.
Finally, there was evidence at trial that Gregory Thomas engaged in daily crack-cocaine sales in Elk Block territory and that Billy Applins "fronted" Thomas crack cocaine after Thomas was released from prison to help him get back on his feet. Indicted co-conspirator and Elk Block gang member Ronnie Parnell testified that in 2000, when violence started to escalate
We conclude from the record before us that there was more than sufficient evidence to permit the jury to find that each of the appellants agreed to form a RICO enterprise and to conduct, and participate in, the conduct of the gang's affairs.
III. Unanimity as to Which Predicate Acts the Defendants Agreed Would Be Committed
The appellants argue, as they did in the district court, that the district court erred in failing to instruct the jury that it was required to find unanimously which specific racketeering acts that the defendants agreed would be committed. The court did instruct the jury that it needed to find that each defendant agreed to the commission of at least two racketeering acts. The district court's instructions on this point were as follows:
(emphasis supplied). The appellants claim that the court erred in providing the foregoing instructions because these instructions only required that the jury unanimously agree as to which type of predicate
United States v. Glecier, 923 F.2d 496, 500 (7th Cir.1991). In Glecier our sister circuit explained that:
Glecier, 923 F.2d at 501 (emphasis in original); United States v. Crockett, 979 F.2d 1204, 1209 (7th Cir.1992) (quoting Glecier, 923 F.2d at 501).
Because a RICO conspiracy charge need not specify the predicate or racketeering acts that the defendants agreed would be committed, Salinas, 522 U.S. at 64, 118 S.Ct. 469 ("The RICO conspiracy statute broadened conspiracy coverage by omitting the requirement of an overt act." (internal citation omitted)); Yannotti, 541 F.3d at 129 (stating that "to secure [defendant's] conviction for RICO conspiracy, the government was not required to prove the actual commission of a single predicate act by [defendant] or any other conspirator" (emphasis in original)), it is sufficient to allege and prove that the defendants agreed to the commission of multiple violations of a specific statutory provision that qualifies as RICO racketeering activity. See Glecier, 923 F.2d at 499-500; see also Crockett, 979 F.2d at 1209 n. 3 (concluding that the indictment contained sufficient information to fall well within the boundary for RICO conspiracy where that indictment "alleged acts of violence carried out during a specific period of time for specific purposes in furtherance of the delineated activities of a RICO enterprise") (citing United States v. Phillips, 874 F.2d 123, 130 (3d Cir.1989) (holding that where RICO conspiracy count generally identified racketeering acts as acts of bribery and extortion, the government "can rely on any act of bribery and extortion, so long as that act occurred within the time frame of the conspiracy and was established by proof at the trial"); United States v. Sutherland, 656 F.2d 1181, 1197 (5th Cir. 1981) (rejecting similar lack of specificity challenge to RICO conspiracy indictment where indictment identified the pattern of
Similarly, we also reject appellants' argument that their convictions must be reversed because the jury was not required to answer special interrogatories as to which specific predicate acts each defendant agreed would be committed. We have recognized a "preference for special interrogatories in particularly complex criminal cases." United States v. Ogando, 968 F.2d 146, 149 (2d Cir.1992); see id. at 148-49 ("These complexities have prompted us to conclude that, notwithstanding the law's `traditional distaste for special interrogatories,' `where the offense charged required proof of a specific number of predicate facts and the nature of the proof at trial warrants it, the trial court would be well advised to submit to the jury interrogatories that would allow an assessment of whether the jury's determination of guilt rested on permissible bases.'" (quoting United States v. Roman, 870 F.2d 65, 73 (2d Cir.1989))); cf. United States v. Ruggiero, 726 F.2d 913, 926 (2d Cir.1984) ("We take this opportunity to alert bench and bar that in a complex RICO trial such as this one, it can be extremely useful for a trial judge to request the jury to record their specific dispositions of the separate predicate acts charged, in addition to their verdict of guilt or innocence on the RICO charge."), abrogated on other grounds by Salinas, 522 U.S. at 64, 118 S.Ct. 469. Nevertheless, the use of special interrogatories is not required, as we
IV. Whether Gregory Thomas should be resentenced in light of Kimbrough
The Untied States Sentencing Guidelines were amended, effective on November 1, 2007, to reduce by two levels the offense level applicable to crack-cocaine offenses. See U.S.S.G. Supp. to App. C, amend. 706 (2009); Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28573. The Sentencing Commission later designated the crack-cocaine amendment as one that may be applied retroactively, effective March 3, 2008. U.S.S.G. Supp. to App. C, amend. 713 (2009); U.S.S.G. § 1B1.10(c).
In this case, Gregory Thomas was convicted and sentenced for an offense involving crack-cocaine. The parties submitted their sentencing memoranda to the district court, and the district court sentenced Thomas, prior to the amendments and prior to the Supreme Court's decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), in which the Court held that a sentencing judge may consider the disparity between the Guidelines's treatment of crack-and powder-cocaine offenses. 552 U.S. at 575, 128 S.Ct. 1346.
The record demonstrates that Thomas has preserved his claim that the application of the Sentencing Guidelines's powder-crack disparity would result in a sentence greater than necessary to achieve the sentencing objectives in § 3553(a). In his April 23, 2007 sentencing memorandum submitted to the district court, Thomas specifically argued, inter alia, that he was, for purposes of sentencing, subject to "high exposure . . . due to the scoring of over 1.5 kilograms of crack cocaine." Thomas claimed that "[t]his penalty is grossly disproportionate to the offenses" of which he had been convicted, and he noted that the Guideline ratio of 100 to 1 between crack and cocaine had been "the subject of criticism by courts, legal commentators and the Sentencing Commission on the grounds that the disparity lacks any persuasive penal or scientific justification, and it has a racially disparate impact in federal sentencing." Thomas further argued that the "legislative history . . . contains no rationale for the 100:1 ratio, and the Sentencing Commission has studied the issue in depth since and found no data to support Congress'[s] assumptions in passing the legislation." Thomas accordingly urged the district court to impose a non-Guidelines sentence or in the alternative to grant him a downward departure from the Guidelines.
Although Thomas did not move in the district court, pursuant to 18 U.S.C. § 3582(c)(2), for a sentencing reduction based upon the crack-cocaine amendment, at the time of Thomas's sentencing, on May 23, 2007, the law of this Circuit "did not acknowledge a district court's so-called `variance discretion' with respect to whether" the 100-to-1 crack-powder ratio "results in an unfair measure of the seriousness of the offense." United States v. Keller, 539 F.3d 97, 99 (2d Cir.2008); see Castillo, 460 F.3d at 361 (holding that district court erred when it substituted its own crack-powder ratio for the ratio set forth in the Guidelines). Moreover, because the record does not "unambiguously demonstrate" that the district court was aware of its discretion to vary from the Guidelines if it found that the disparity in the crack-powder ratio resulted in a greater sentence than necessary, remand is appropriate. Keller, 539 F.3d at 101-02. Because the record also clearly demonstrates that Thomas preserved this issue by raising it in his sentencing memorandum and at the sentencing hearing, we remand to the district court for plenary resentencing consistent with Kimbrough. United States v. Jones, 531 F.3d 163, 180-83 (2d Cir.2008); cf. United States v. Regalado, 518 F.3d 143 (2d Cir.2008) (remanding, under plain error review, to the district court to allow the court to determine whether resentencing was required where the defendant failed to preserve an argument that the district court should have exercised its authority under 3553(a) to consider the disparity between the crack and powder-cocaine Guidelines).
We have considered all of appellants' remaining arguments and find them to be without merit.
In accordance with the foregoing, we AFFIRM the judgments of the district court in all respects except for the sentence of Gregory Thomas. With regard to that sentence, we REMAND to the district court for plenary resentencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). United States v. Jones, 531 F.3d 163, 180-83 (2d Cir.2008).