Mendez v. United States ( 2022 )

21-1536
Mendez v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of December, two thousand twenty-two.
PRESENT: AMALYA L. KEARSE,
DENNIS JACOBS,
WILLIAM J. NARDINI,
Circuit Judges.
_______________________________________
JESUS MENDEZ,
Petitioner-Appellant,
v. 21-1536
UNITED STATES OF AMERICA,
Respondent-Appellee.*
_______________________________________
* The Clerk of Court is respectfully directed to amend the case caption as set forth above.
For Petitioner-Appellant: Yuanchung Lee, Of Counsel, Federal
Defenders of New York, Inc., New York, NY
For Respondent-Appellee: Andrew Thomas, Alexandra N. Rothman,
and Danielle R. Sassoon, Assistant United
States Attorneys, for Damian Williams,
United States Attorney for the Southern
District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Denny Chin, Judge, by designation) entered on June 3, 2021.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order entered by the district court on June 3, 2021, is AFFIRMED.
Petitioner-Appellant Jesus Mendez appeals from a judgment of the United States District
Court for the Southern District of New York (Denny Chin, Judge, by designation) entered on June
3, 2021, denying his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
On December 3, 1996, a twenty-six-count superseding indictment was filed against
Mendez and Ricardo Morales based on their participation in the “Park Avenue Boys,” a violent
group that operated primarily in the Bronx. As redacted for trial, the indictment contained twenty-
one counts.
Trial commenced on April 7, 1997. On May 1, 1997, a jury returned guilty verdicts against
Mendez on seventeen of the counts contained in the redacted superseding indictment (the
“Indictment”). As relevant here, these included: racketeering, in violation of 18 U.S.C. § 1962(c)
(Count One); racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count Two); conspiracy
to commit robbery in violation of 18 U.S.C. § 1951, the Hobbs Act (Count Five); substantive
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Hobbs Act robbery (Count Six); conspiracy to commit Hobbs Act robbery (Count Seven);
substantive Hobbs Act robbery (Count Eight); using and carrying a firearm during a crime of
violence, that is, the conspiracy to rob and robbery charged in Counts Five and Six, in violation of
18 U.S.C. § 924(c) (Count Thirteen); and using and carrying a firearm during a crime of violence,
that is, the conspiracy to rob and robbery charged in Counts Seven and Eight, in violation of §
924(c) (Count Fourteen).1
Counts Five and Six concern the robbery of the Franklin Grocery, located at 1721 East
174th Street in the Bronx, in January 1996. Counts Seven and Eight concern the robbery of an
individual named Bryan Wilson at 34½ West 183rd Street in the Bronx in February 1996. Count
Thirteen is based on Mendez’s use of a gun during the “conspiracy to rob and robbery of” the
Franklin Grocery (Counts Five and Six, respectively). App’x 37. Count Fourteen is based on the
use of a gun during the “conspiracy to rob and robbery of” Bryan Wilson (Counts Seven and Eight,
respectively). Id. at 37–38.2
The district court sentenced Mendez principally to a term of life imprisonment plus 125
years. United States v. Morales, 185 F.3d 74, 80 (2d Cir. 1999). On July 26, 1999, we reversed
Mendez’s racketeering convictions and the convictions that were dependent on the racketeering
convictions on direct appeal. Id. at 85. We affirmed Mendez’s convictions on all other counts
(including Counts Five through Eight, Thirteen, and Fourteen). Id. at 82, 85. On remand, the
1
The count numbers in this order refer to the redacted, twenty-one-count superseding indictment submitted
to the jury at trial, as opposed to the original twenty-six-count superseding indictment filed on December 3, 1996.
2
Count Fourteen cross-references Counts Seven, Eight and Nine of the Indictment. However, we reversed
the conviction on Count Nine—which charged Mendez with violent crimes in aid of racketeering, in violation of 18
U.S.C. § 1959—in the July 26, 1999, opinion discussed infra.
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district court resentenced Mendez principally to 110 years of imprisonment. We affirmed the
modified judgment. United States v. Diaz, 25 F. App’x 27, 31 (2d Cir. 2001). On May 1, 2003,
the district court denied Mendez’s first motion under 28 U.S.C. § 2255, which alleged ineffective
assistance of counsel. Mendez v. United States, No. 02 CIV. 10265 (DC), 2003 WL 2006603, at
*1 (S.D.N.Y. May 1, 2003).
On June 24, 2019, the Supreme Court held in United States v. Davis that 18 U.S.C.
§ 924(c)(3)(B), the residual clause of the provision defining an offense as a predicate crime of
violence under § 924(c), was unconstitutionally vague. 139 S. Ct. 2319, 2336 (2019). Following
that decision, we ruled in United States v. Barrett that conspiracy to commit Hobbs Act robbery
was no longer a valid § 924(c) predicate, because it could not qualify as a crime of violence absent
the residual clause. 937 F.3d 126, 127–28 (2d Cir. 2019). Nonetheless, we have held that Hobbs
Act robbery itself remains a valid predicate crime of violence for convictions under § 924(c).
United States v. Hill, 890 F.3d 51, 53 (2d Cir. 2018). On May 12, 2020, this Court granted
Mendez’s motion for leave to file a second or successive petition, pursuant to 28 U.S.C. § 2255,
to challenge his convictions under § 924(c). On June 3, 2021, the district court entered an order
denying Mendez’s second § 2255 motion, but it granted Mendez a certificate of appealability on
July 13, 2021. Mendez is currently serving his sentence.
Mendez now requests that we (1) vacate his convictions on Counts Thirteen and Fourteen
and the accompanying portions of his sentence, and (2) remand for resentencing on the remaining
counts. Mendez emphasizes that the district court erroneously instructed the jury during trial that
both (1) conspiracy to commit Hobbs Act robbery (no longer a constitutionally valid predicate
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crime of violence under Davis and Barrett) and (2) substantive Hobbs Act robbery were predicate
crimes of violence for the purposes of § 924(c). The district court accordingly instructed the jury
that it could not return a guilty verdict on the § 924(c) counts “unless you find the defendant you
are considering guilty of committing or aiding and abetting the corresponding underlying offense
that is referred to in each firearms count.” App’x 48. During deliberations, one jury note included
the question: “As it relates to [Count Sixteen, which involved predicate racketeering acts that had
not been charged as separate counts,] . . . is the using . . . or carrying firearm in relation to
conspiracy to rob and robbery or is it conspiracy to rob or robbery? Please distinguish whether it
should be ‘and’ or ‘or.’” Gov’t Add. 33 (emphases added). In response, the district court
instructed the jury that “it should be ‘or.’ You need not find both. You need only find one or the
other.” App’x 53.
Moreover, the special verdict form did not ask the jury to identify the predicate crime(s) of
violence that provided the basis for convicting Mendez of Counts Thirteen and Fourteen under
§ 924(c). Instead, it asked the jury to check “guilty” or “not guilty” for each count. The form
described Count Thirteen as “[u]sing and carrying firearm in relation to conspiracy to rob and
robbery of [the Franklin Grocery],” and Count Fourteen as “[u]sing and carrying firearm in relation
to conspiracy to rob and robbery of [Bryan Wilson].” App’x 62.
The government does not dispute that the district court erred by instructing the jury that
both conspiracy to commit Hobbs Act robbery and substantive Hobbs Act robbery were crimes of
violence, and that, therefore, the jury could rely on the conspiracy or the substantive robbery count
to find Mendez guilty of Counts Thirteen and Fourteen. However, the parties disagree about
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whether Mendez was harmed by the district court’s incorrect instructions. Mendez claims that it
is impossible to tell whether the jury relied on the invalid Hobbs Act conspiracy predicate rather
than the valid Hobbs Act robbery predicate in convicting him of Counts Thirteen and Fourteen,
and he has therefore suffered prejudice. We disagree, and thus affirm the judgment of the district
court. We assume the parties’ familiarity with the case.
“The Supreme Court has held that ‘[a] conviction based on a general verdict is subject to
challenge if the jury was instructed on alternative theories of guilt and may have relied on an
invalid one.’” Stone v. United States, 37 F.4th 825, 829 (2d Cir. 2022) (alteration in original)
(quoting Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008)). The district court’s jury instructions in this
case constituted a so-called “Yates error.” See id. (citing Yates v. United States, 354 U.S. 298, 312
(1957) (holding that there is constitutional error when two different theories are submitted to a jury
that returns a general verdict of guilty and at least one of the theories was legally insufficient)).
“However, the [Supreme] Court has also held that ‘habeas petitioners are not entitled to habeas
relief based on trial error unless they can establish that it resulted in actual prejudice.’” Id. (quoting
Davis v. Ayala, 576 U.S. 257, 267 (2015)). Moreover:
[I]n the context of a § 924(c) conviction, where a jury’s finding of guilt is based on
two predicates, only one of which can lawfully sustain guilt, we will find the error
harmless when the jury would have found the essential elements of guilt on the
alternative charged predicate that would sustain a lawful conviction beyond a
reasonable doubt.
Id. at 831 (internal quotations marks omitted).
Therefore, the crucial question is whether Mendez was prejudiced by the district court’s
Yates error. This error was harmless if the jury would have convicted Mendez on Counts Thirteen
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and Fourteen even if the only predicate had been substantive Hobbs Act robbery. To determine
whether a properly instructed jury would have convicted Mendez despite the Yates error, we must
“review the whole record.” Id. As noted supra, Count Thirteen is based on Mendez’s use of a gun
during the Hobbs Act conspiracy to rob the Franklin Grocery (Count Five) and Hobbs Act robbery
of the Franklin Grocery (Count Six). Following Davis and Barrett, only Count Six remains a valid
§ 924(c) predicate for convicting Mendez of Count Thirteen. Similarly, Count Fourteen is based
on Mendez’s use of a gun during the Hobbs Act conspiracy to rob Bryan Wilson (Count Seven)
and Hobbs Act robbery of Bryan Wilson (Count Eight). Following Davis and Barrett, only Count
Eight remains a valid § 924(c) predicate for convicting Mendez of Count Fourteen.
Here, the jury’s guilty verdicts, the language of the Indictment, and the evidence at trial
confirm that a properly instructed jury would have convicted Mendez of Counts Thirteen and
Fourteen. To start, the jury found Mendez guilty of Count Six (substantive Hobbs Act robbery of
the Franklin Grocery) and Count Eight (substantive Hobbs Act robbery of Bryan Wilson). The
jury also found that the government proved Racketeering Acts Five and Six of Count One. The
jury’s special verdict form specified that the jury had found proven the substantive robbery of the
Franklin Grocery charged in Racketeering Act Five as well as the substantive robbery of Bryan
Wilson charged in Racketeering Act Six. We are therefore confident that, had the jury been
properly instructed that the only valid predicates for convicting Mendez of Counts Thirteen and
Fourteen were Counts Six and Eight, respectively, it would still have convicted Mendez of Counts
Thirteen and Fourteen. This conclusion is underscored by the language of the Indictment, which
describes Counts Six and Eight as “robbery at gunpoint,” App’x 32, 33, and by the court’s
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instructions to the jury that those Counts charged Mendez with “robbery at gunpoint,” App’x 43,
44. That the jury found Mendez guilty of robbing the Franklin Grocery and Bryan Wilson at
gunpoint supports convicting Mendez of using and carrying a firearm during these crimes in
violation of § 924(c).
The evidence at trial further reinforces the conclusion that the jury would have convicted
Mendez of Counts Thirteen and Fourteen if it had been properly instructed. Specifically, with
respect to Count Six, Franklin Vargas, the owner of the Franklin Grocery, testified before the jury
that Mendez held a gun to his chest and threatened to kill Vargas if he did not give him money,
which Vargas then did. With respect to Count Eight, there was evidence that Mendez shot Bryan
Wilson in the side and took $800 from his pocket. This evidence provides a strong factual basis
for the jury’s convictions of Count Six and Count Eight. This evidence, coupled with the jury’s
actual convictions on these counts, establishes that the district court’s Yates error was harmless
and does not warrant the relief Mendez seeks.
Given our ruling on the merits of Mendez’s § 2255 claims, we need not address whether
the government waived its argument that Mendez procedurally defaulted his claims by failing to
raise them on direct appeal in 2001. This is because, regardless of whether Mendez’s § 2255
claims are procedurally barred, Mendez’s convictions on Counts Thirteen and Fourteen stand. If
Mendez’s claims are not procedurally barred, they fail on the merits for the reasons previously
discussed. If Mendez’s claims are procedurally barred, we would then evaluate whether the “cause
and prejudice” exception to procedural default applies. See, e.g., Bousley v. United States, 523
U.S. 614, 622 (1998) (“Where a defendant has procedurally defaulted a claim by failing to raise it
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on direct review, the claim may be raised in habeas only if the defendant can first demonstrate
either cause and actual prejudice, or that he is actually innocent.” (internal quotation marks and
citations omitted)). Here, because Mendez cannot demonstrate actual prejudice (and because he
does not argue that he is actually innocent), his claims would fall outside this exception, and they
would therefore be procedurally barred.
In sum, because Mendez was not prejudiced by the district court’s instructional error, his
§ 2255 challenge fails whether or not it was procedurally defaulted. He is therefore not entitled to
vacatur of his § 924(c) convictions or resentencing on his remaining counts of conviction.
* * *
We have considered Mendez’s remaining arguments and conclude that they are not
persuasive. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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