United States v. Anastasio ( 2020 )

18-421
United States v. Anastasio
In the
United States Court of Appeals
For the Second Circuit
______________
August Term, 2019
(Argued: April 28, 2020 Decided: August 19, 2020
Amended: September 1, 2020)
Docket Nos. 15-1453-cr(L), 18-328-cr(Con), 18-369-cr(Con), 18-421-cr(Con)
______________
UNITED STATES OF AMERICA,
Appellee,
–v.–
JONATHAN DELGADO, MATTHEW SMITH, ISMAEL LOPEZ, DOMENICO
ANASTASIO,
Defendants-Appellants. ∗
______________
B e f o r e:
JACOBS, POOLER, and CARNEY, Circuit Judges.
______________
Defendant-Appellant Domenico Anastasio was charged with one count of
racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (the “RICO Conspiracy
Count”), and two counts of murder in aid of racketeering in violation of 18 U.S.C.
§§ 1959(a)(1) and (2) (the “VCAR Murder Counts”), based on his involvement with the
∗
The Clerk of Court is directed to amend the official caption to conform with the above.
10th Street Gang in Buffalo, New York, and his role in the 2006 murders of Darinell
Young and Brandon MacDonald. Following a five-week trial, the jury found him guilty
on all counts, including on two “special factors” that, as part of the RICO Conspiracy
Count, charged Anastasio with intentionally causing the deaths of MacDonald and
Young in violation of New York Penal Law §§ 125.25(1) and 20.00 (the “Murder
Enhancements”). For these crimes, the United States District Court for the Western
District of New York (Arcara, J.) sentenced Anastasio to life in prison. In his appeal,
which we consolidated with those of his three co-defendants, Anastasio attacks the
sufficiency of the evidence underlying his convictions; he also challenges several rulings
made by the District Court before trial. On review, we agree with Anastasio that the
evidence was insufficient to convict him of aiding and abetting the murders of
MacDonald and Young. We conclude further, however, that the government adequately
proved Anastasio’s knowing agreement to participate in a racketeering enterprise.
Moreover, we discern no error in the District Court’s Batson ruling, and no abuse of
discretion in its denial of Anastasio’s motion to sever his trial from that of his
co-defendants. Accordingly, we AFFIRM Anastasio’s judgment of conviction as to the
RICO Conspiracy Count; REVERSE the judgment as to the VCAR Murder Counts and
the Murder Enhancements of the RICO Conspiracy Count and direct the District Court
to enter a judgment of acquittal on the VCAR Murder Counts and the Murder
Enhancements; and REMAND the cause for RESENTENCING.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING.
______________
PETER J. TOMAO, Esq., Garden City, NY, for Defendant-
Appellant Domenico Anastasio.
MONICA J. RICHARDS, Assistant United States Attorney, for
James P. Kennedy, Jr., United States Attorney for the
Western District of New York, Buffalo, NY, for Appellee
United States of America.
______________
CARNEY, Circuit Judge:
Defendants-Appellants Domenico Anastasio, Jonathan Delgado, Ismael Lopez,
and Matthew Smith (together, “Defendants”) were convicted by a jury on conspiracy
and racketeering charges relating to their involvement with the 10th Street Gang in
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Buffalo, New York, and their participation in the murders of Brandon MacDonald and
Darinell Young. For these crimes, the United States District Court for the Western
District of New York (Arcara, J.) sentenced them each to life in prison. We now resolve
Defendants’ consolidated appeals in two opinions and an order, issued separately. We
address Anastasio’s challenges below.
Anastasio attacks his convictions and sentence on several grounds, only three of
which we must reach to resolve this appeal. First, he challenges the sufficiency of the
evidence supporting his three counts of conviction, one for racketeering conspiracy in
violation of 18 U.S.C. § 1962(d) (the “RICO Conspiracy Count”), and two for murder in
aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (the “VCAR Murder
Counts”). In Anastasio’s view, the government failed to prove that he knowingly
agreed to participate in a racketeering scheme (as required by the RICO Conspiracy
Count), or that he aided and abetted the murders of MacDonald and Young (as
required by the VCAR Murder Counts and the New York law murder enhancements to
the RICO Conspiracy Count). Anastasio also challenges two rulings made by the
District Court before trial. He contends, in particular, that the government exercised its
peremptory jury strikes on the basis of race, and that the District Court therefore erred
by rejecting Anastasio’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986). In
addition, Anastasio argues that the District Court abused its discretion when it denied
his motion to sever his trials from that of his co-defendants, maintaining that the
evidence against those individuals unfairly prejudiced the jury against him.
For the reasons that follow, we agree with Anastasio that the evidence adduced
at trial fell short of establishing his guilt as an accomplice to murder. To satisfy the actus
reus element of aiding and abetting under either federal or New York law, the
government must prove that a defendant’s conduct actually contributed to the success
of the specific crime that the defendant is charged with aiding and abetting. Here, we
3
see no basis in the record for concluding that Anastasio in any way prompted,
encouraged, or otherwise facilitated the commission of murder. Accordingly, we
conclude that insufficient evidence supported the jury’s guilty verdict on (a) the VCAR
Murder Counts and (b) the two “special factors” of the RICO Conspiracy Count that
charged Anastasio with intentionally causing the deaths of MacDonald and Young in
violation of New York Penal Law §§ 125.25(1) and 20.00 (the “Murder Enhancements”).
We reject, however, Anastasio’s sufficiency challenge to the RICO Conspiracy
Count itself, concluding that the government’s evidence adequately established his
knowing agreement to participate in a racketeering enterprise. Anastasio’s remaining
lines of attack, moreover, provide no basis for disturbing his conviction on that Count.
As discussed in greater detail below, we discern no error in the District Court’s rejection
of Anastasio’s Batson challenge and no abuse of discretion in its denial of his severance
motion. 1
We therefore AFFIRM Anastasio’s judgment of conviction as to the RICO
Conspiracy Count, REVERSE the judgment as to the two VCAR Murder Counts and the
two Murder Enhancements of the RICO Conspiracy Count, and REMAND the cause for
RESENTENCING.
BACKGROUND
In 2009, local, state, and federal officers began a coordinated investigation in
Buffalo, New York, into two rival street gangs operating there: the 10th Street Gang and
1 Anastasio raises two additional challenges on appeal. First, he contends that the District Court
erred by denying his post-verdict motion for a new trial, asserting that the motion should have
been granted because insufficient evidence supported his liability as an accomplice to the
murders of Young and MacDonald. Second, he attacks the length of his sentence, claiming that
it violates his Eighth Amendment rights. Both challenges are made moot, however, by our
decision to reverse the VCAR Murder Counts and the Murder Enhancements of the RICO
Conspiracy Count. Thus, we do not address them further.
4
the 7th Street Gang. These efforts led to a series of arrests and criminal prosecutions,
most of which ended with guilty pleas. Anastasio and his three co-defendants,
however, proceeded to trial. During its roughly five-week course, the jury heard
testimony from more than 50 witnesses, including ten members of the 10th Street Gang
who had earlier pleaded guilty and cooperated with the government (the
“Cooperators”). 2
I. Factual Background
Viewed in the light most favorable to the government, the evidence adduced at
trial tells the following story of Anastasio’s involvement in the 10th Street Gang and his
role in the murders of MacDonald and Young. See United States v. Dupree, 870 F.3d 62,
67 (2d Cir. 2017) (“Because defendants appeal their convictions following a jury trial,
our statement of the facts views the evidence in the light most favorable to the
government, crediting any inferences that the jury might have drawn in its favor.”). 3
A. The 10th Street Gang
The 10th Street Gang (the “Gang”) was comprised of adolescents and young
adults who lived in the vicinity of 10th Street in the West Side of Buffalo, New York. In
the 2000s, its members ran a narcotics-trafficking operation, “work[ing] together” to sell
2 The ten Cooperators were: (1) Sam Thurmond, (2) Michael Corchado-Jamieson, (3) Derrick
Yancey, (4) Christopher Pabon, (5) Jimmy Sessions, (6) Jimmarlin Sessions, (7) Jairo Hernandez,
(8) Kyle Eagan, (9) Douglas Harville, and (10) Nicholas Luciano. The language quoted in this
section of the Opinion is drawn primarily from the government and defense attorneys’
examination and cross-examination of these Cooperators, which elicited testimony that was
largely consistent as to the fundamental description of the Gang’s operations and Anastasio’s
role in it.
3Unless otherwise noted, our Opinion omits all alterations, citations, footnotes, and internal
quotation marks in quoted text.
5
heroin, cocaine, crack cocaine, marijuana, and ecstasy from street corners, houses, and a
park located within its territory. Smith App’x 2326.
At its peak, the Gang numbered about 100 members. Its structure, however, was
fairly loose and decentralized. Although its members sometimes met to discuss matters,
it did not have any designated leaders. Nor did it have “any formal or informal rules”
for being a member. Smith App’x 2846. Rather than “giv[ing] out assignments” to its
ranks, the Gang let individual members decide for themselves “what role” to play and
“how much work [to] put” into its operations. Smith App’x 2324, 2361. The process for
admitting new recruits was, likewise ad hoc: the Gang generally accepted into its fold
interested individuals who became “familiar with . . . the people in the neighborhood”
and who generally “vibe[d]” with other members. Smith App’x 2317.
The 10th Street Gang was not entirely unstructured, however. According to the
testimony of several Cooperators, the Gang organized itself around a loose hierarchy of
roles. The “shooters” and the “older guys” generally held the most respected positions,
followed by the “suppliers” and “sellers” of drugs, the “fighters,” and (at the bottom)
the “look-outs.” Smith App’x 2323, 2838, 4666. To move up the ladder, individuals had
to earn the respect of their peers by “putting in work” for the Gang. Smith App’x
2360-61. In this context, “work” included (among other things) selling drugs,
committing robberies, and fighting, stabbing, shooting, or killing rivals. Gang members
often learned of their associates’ work through word-of-mouth: when an individual
“did something” that could “earn [him] respect” within the Gang, he would typically
tell those “closest” to him, and from there, “the word would disseminate among the
various members.” Smith App’x 2361-62.
Members of the 10th Street Gang were also united by their shared commitment
to defend the Gang’s territory and drug business. As one Cooperator explained, the
“10th Street . . . had [a] reputation” to maintain. Smith App’x 3810. Gang members
6
worried that, if they did not instill fear and respect in the community, outsiders would
start selling narcotics in their neighborhoods and, as a result, siphon away the Gang’s
“drug profits.” Smith App’x 4129. Accordingly, the Gang used violence and
intimidation as its core strategy. Older gang members, for example, instructed younger
ones to “shoot rivals if they came into the neighborhood.” Smith App’x 2338-39.
Although the Gang did not patrol its territory in a scheduled or structured way,
individual members would take it upon themselves to stop and question anyone whom
they did not recognize. If an outsider attempted to sell drugs inside claimed territory,
the Gang would expel that person from the neighborhood—by force if necessary. And if
a rival gang or drug dealer “d[id] something” to a 10th Street member, “[t]here [was]
always retaliation.” Smith App’x 3810.
One of the Gang’s main rivals was the 7th Street Gang, a group that operated in
nearby neighborhoods. The two gangs fought regularly. In the early 2000s, these
skirmishes mostly took the form of brawls and fist fights. In around 2004, however, the
conflict escalated and began to include shootings. As the violence intensified, the
10th Street Gang began acquiring more firearms—amassing, by one Cooperator’s
estimate, more than 70 guns. Members would carry these firearms for protection
whenever they “sold drugs” or “hung around” together. Smith App’x 2331.
B. Anastasio’s Association with the 10th Street Gang
At trial, several Cooperators identified Anastasio as a member of the 10th Street
Gang. Anastasio apparently joined the Gang at some point in 2001 or 2002, after being
introduced to its members through Sam Thurmond (a Cooperator) and two of
Anastasio’s cousins. He continued to associate with the Gang until at least 2010, when
he attended a memorial rally for a deceased Gang member and can be seen in video
footage “[t]hrowing up the M” hand sign for “M-O-B,” another name used by the Gang.
Smith App’x 2426.
7
Over those years, Anastasio’s involvement with the Gang took a variety of
different forms. According to testimony from the Cooperators, Anastasio acted as “a
lookout” for “[a] lot” of the Gang’s drug deals. Smith App’x 2852. On several occasions,
he sold marijuana himself. Smith App’x 3646. In addition, Anastasio would bring
firearms to the 10th Street park—the Gang’s “home base”—to protect Gang members,
sometimes “hid[ing] [these weapons] in the grass.” Smith App’x 2847, 2853-54.
Eventually, Anastasio began fighting rival gangs. In around 2004, for example, he
joined a brawl between the 10th Street Gang and its 7th Street rival that included 80-100
total participants. Nothing in the record, however, suggests that Anastasio ever became
a shooter for the Gang, although he did make his 12-gauge shotgun available to other
members who, on at least one occasion, used that firearm to “sho[o]t up” a “known 7th
Street house.” Smith App’x 2457-61.
C. The Murders of Young and MacDonald
We now turn to the events leading to the murders of Young and MacDonald—
the heart of the government’s case.
At around midday on April 16, 2006, Anastasio was “hanging out” with ten to
fifteen members of the 10th Street Gang outside of “Sam’s store,” waiting to go to a
picnic scheduled for later that afternoon. Smith App’x 2888-92. Before they departed for
the picnic, however, several armed 7th Street members drove by in an “orange Chevy
Cobalt” and opened fire on the group, striking Delgado’s younger brother, Robert
Sanabria, in the stomach. Smith App’x 2892-95, 3015.
After an ambulance arrived to transport Sanabria to a hospital, members of the
10th Street Gang—including Anastasio—gathered at a nearby park. There, the group
discussed revenge. According to a Cooperator’s testimony, Delgado said that “he
wanted to . . . shoot back at the 7th Street members for shooting his brother,” adding
8
that anyone who “could get a gun” should “get it.” Smith App’x 2898, 2900. The group
agreed that those who wanted to participate in the retaliation would meet at
Thurmond’s apartment, where Thurmond lived with his brother, James Foxworth.
At some point during these discussions, one of the Gang members noticed a
woman (Stephanie Maldonado) and her boyfriend at the time (Juan Hernandez)
walking down a nearby street. Suspecting that Hernandez was from 7th Street, the
Gang members who were at the park confronted the couple. Maldonado denied that her
boyfriend was part of 7th Street, but after a heated conversation, some members of the
10th Street Gang, including Anastasio, knocked Hernandez to the ground and started
kicking him. When Maldonado attempted to intervene, the assailants “hit” and
“stomp[ed]” on her as well. Smith App’x 4471.
After this beating, which lasted about a “[m]inute and a half,” the 10th Street
group dispersed, with some (including Anastasio) reconvening later at Thurmond’s
apartment. Smith App’x 2465.22, 2903. There, Delgado restated the plan to “shoot at
[7th Street Gang members] because they had shot his brother,” and he told those
present (including Anastasio) that they needed to find guns. Smith App’x 2906. Several
individuals then left to collect firearms and, when they returned, deposited those guns
on Foxworth’s bed. Delgado, for example, brought a .44 caliber handgun that he owned,
along with a .380 caliber firearm that he had acquired from another Gang member at the
park; Corchado-Jamieson borrowed “a sawed-down .22 rifle” from his stepsister’s
boyfriend, Smith App’x 2907; Thurmond took out his shotgun; and several members of
the “Zolo Boys”—an “affiliate[]” of the 10th Street Gang—showed up at the apartment
with two shotguns of their own, Smith App’x 2465.40, 2465.46.
Then, at some point that night, Smith informed Thurmond that he would “drive
around the neighborhood” to locate members of the 7th Street Gang. Smith App’x
2465.39, 2465.48. Five to ten minutes later, Smith called Thurmond by phone, and said,
9
“[T]hey’re out there at Nick’s house on Pennsylvania. Go do what you all gotta do.”
Smith App’x 2465.48. Thurmond then relayed this information to those present
(including Anastasio), telling them that “if [they] wanted to do anything, that’s where
[they] had to go.” Smith App’x 2465.49.
Anastasio, however, had twice tried and failed to acquire a firearm for his own
use. 4 In his first attempt, Anastasio picked up the .44 caliber pistol that Delgado had
brought to the apartment. The gun—which had only a single bullet in it—was in poor
condition: its “pin kept coming out”; its “barrel was loose”; and its “handle . . . was kind
of messed up.” Smith App’x 3073-74, 4485. Even so, Douglas Harville—a shooter for the
Gang—demanded that Anastasio give him the weapon. Anastasio initially resisted,
saying, “[N]o, I’m going.” Smith App’x 4484. He eventually gave in, however, and
handed Harville the .44 caliber firearm. Later that night, Anastasio tried (without
success) to repurchase a shotgun that he had recently sold to one of the Zolo Boys.
Those who had firearms then proceeded to drive in two vehicles to 155
Pennsylvania Street, where “Nick’s house” was located. Having no firearm, Anastasio
remained in the apartment while the others drove to the scene of the crime.
When the shooters arrived at 155 Pennsylvania Street, they ran up and started
firing at a group of individuals gathered on and near the front porch. Harville
attempted to shoot the .44 caliber handgun that he had taken from Anastasio. “Nothing
happened,” however, when he “pulled the trigger”: the gun apparently malfunctioned
and left Harville unable to fire a single shot. 5 Smith App’x 4501. His associates, by
4At one point during the night, Anastasio also picked up a .22 Ruger that lay on Foxworth’s
bed. Another 10th Street Gang member ultimately ended up with this gun, however, and
nothing in the record suggests that Anastasio attempted to claim the .22 Ruger as his own.
5After the shooting, Harville concluded upon inspecting the .44 caliber gun that it had not fired
because of a problem with “the firing pin.” Smith App’x 4510.
10
contrast, discharged approximately 50 bullets, killing MacDonald and Young, who were
innocent bystanders, and injuring four others. 6
The shooters then fled the scene, eventually making their way back to
Thurmond’s apartment, where they “talk[ed] about . . . what happened” and
coordinated their alibis. Smith App’x 2465.84, 2465.87-88. During their debriefing,
Anastasio—who was waiting at the apartment when the shooters returned—expressed
his frustration at being left behind, asking another Gang member: “[W]hy didn’t you let
me go? Why didn’t you let me go?” Smith App’x 4811-12. Concerned that law
enforcement might look for the shooters at the apartment, one of the 10th Street Gang’s
members (Corchado-Jamieson) offered to store the shooters’ weapons temporarily at his
house. Sometime later, everyone at the apartment went their separate ways.
II. Procedural History of the Prosecutions
On February 2, 2012, Anastasio was charged in a Fourth Superseding Indictment
(“the Indictment”) with one count of racketeering conspiracy in violation of 18 U.S.C.
§ 1962(d) (the “RICO Conspiracy Count”), and two counts of murder in aid of
racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (the “VCAR Murder
Counts”). 7 As part of the RICO Conspiracy Count, the Indictment also set forth two
“special factors” that charged Anastasio with intentionally causing the deaths of Young
and MacDonald in violation of New York Penal Law §§ 125.25(1) and 20.00 (“the
Murder Enhancements”). Smith App’x 5542-43. The VCAR Murder Counts each carried
6Medical and ballistic testimony attributed the death of MacDonald to a bullet fired from
Defendant Delgado’s .380 firearm. The government could not conclusively identify the shooter
who caused Young’s death.
7When discussing the charges against Anastasio, we refer to the redacted, renumbered
indictment that was provided to the jury.
11
a mandatory minimum sentence of life in prison, 18 U.S.C. § 1959(a)(1), and the Murder
Enhancements raised the maximum penalty that Anastasio faced on the RICO
Conspiracy Count to a life term of imprisonment, 18 U.S.C. § 1963(a).
Of the dozens of individuals charged in connection with the investigation of the
Gang’s operations, only Defendants proceeded to trial. As relevant to this appeal,
Anastasio moved to sever his trials from the others, contending that his involvement
with the Gang was minimal and that he would be unfairly prejudiced by the jury’s
consideration of evidence presented against his co-defendants. The District Court
denied his motion, and the parties proceeded to jury selection. During that process, all
four Defendants raised Batson challenges, claiming that the government had exercised
its peremptory strikes on the basis of race when it moved to excuse two of the three
individuals of Hispanic origin who were present in the venire. The District Court
denied Defendants’ Batson challenges, and shortly after, on August 1, 2014, the parties
made their opening statements to the jury.
Following five weeks of trial, the jury found Anastasio guilty on all charges,
including on the Murder Enhancements of the RICO Conspiracy Count. Anastasio then
moved for a judgment of acquittal or, in the alternative, for a new trial under Rules 29
and 33 of the Federal Rules of Criminal Procedure. In both motions, Anastasio urged
that the jury lacked sufficient evidence to find him guilty for aiding and abetting the
murders of Young and MacDonald. In October 2017, the District Court denied these
post-trial motions, relying primarily on Anastasio’s decision to relinquish the .44 caliber
handgun to Harville. See United States v. Anastasio, No. 09-CR-331-A, 2017 WL 4875422,
at *1, 5-7 (W.D.N.Y. Oct. 30, 2017). By “handing th[is] gun to Harville,” the District
Court reasoned, Anastasio “aided the murderous retaliation at 155 Pennsylvania
Avenue for the earlier shooting of Robert Sanabria.” Id. at *6. Moreover, the District
Court continued, Anastasio gave up “his own claim to the gun” knowing that Harville
12
and the others “would retaliate murderously” and “intend[ing] that they do so.” Id. The
District Court therefore sustained the jury’s finding that Anastasio acted as an
accomplice to murder.
In February 2018, the court sentenced Anastasio to concurrent life terms of
imprisonment on each count of conviction—the mandatory minimum sentence for the
VCAR Murder Counts and the statutory maximum sentence for the RICO Conspiracy
Count. Anastasio then timely filed this appeal.
DISCUSSION
Anastasio’s appeal focuses primarily on the sufficiency of the evidence
underlying his convictions. He contends, in particular, that the government failed to
prove (1) that he aided and abetted the murders of MacDonald and Young, or (2) that
he agreed to participate in a racketeering scheme. We address these sufficiency
challenges first, before considering Anastasio’s additional claims that the District Court
erred by denying his Batson challenge and his motion to sever trials.
I. Sufficiency of the Evidence
A defendant bears a “heavy burden” when he attacks a criminal conviction on
the basis of insufficient evidence. United States v. Tanner, 942 F.3d 60, 64 (2d Cir. 2019).
This is because in this procedural posture our “standard of review is exceedingly
deferential.” United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018). In evaluating a
sufficiency challenge, we are required to “view the evidence in the light most favorable
to the government, crediting every inference that could have been drawn in the
government’s favor, and deferring to the jury’s assessment of witness credibility and its
assessment of the weight of the evidence.” United States v. Babilonia, 854 F.3d 163, 174
(2d Cir. 2017). We must sustain a jury’s verdict, moreover, unless the “evidence that the
defendant committed the crime is nonexistent or so meager that no reasonable jury
13
could find guilt beyond a reasonable doubt.” United States v. Ng Lap Seng, 934 F.3d 110,
130 (2d Cir. 2019). Thus, “[t]he ultimate question is not whether we believe the evidence
adduced at trial established [the] defendant’s guilt beyond a reasonable doubt, but
whether any rational trier of fact could so find.” United States v. Corbett, 750 F.3d 245, 250
(2d Cir. 2014) (emphasis in original).
A. VCAR Murder Counts and Murder Enhancements
We begin by considering whether the evidence supports the government’s
theory that Anastasio aided and abetted the murders of Young and MacDonald. To
resolve this question, we must consider the scope of accomplice liability under both
New York and federal law. This is because the Murder Enhancements of the RICO
Conspiracy Count charged Anastasio as an aider and abettor under New York Penal
Law § 20.00, whereas the VCAR Murder Counts charged Anastasio as an aider and
abettor under both New York Penal Law § 20.00 and 18 U.S.C. § 2. 8 As we discuss
below, moreover, these two aiding-and-abetting provisions are not coextensive.
Accordingly, we assess Anastasio’s criminal liability under each statute separately,
starting with 18 U.S.C. § 2.
1. Aiding and Abetting under 18 U.S.C. § 2
The general federal aiding-and-abetting statute provides in relevant part that
“[w]hoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C.
8The VCAR Murder Counts incorporated New York’s accomplice law because they charged
Anastasio with murder in violation of New York Penal Law §§ 125.25(1) (“Murder in the second
degree”) and 20.00 (“Criminal liability for conduct of another”). See United States v. Mapp, 170
F.3d 328, 335 (2d Cir. 1999) (observing that the VCAR murder statute, 18 U.S.C. § 1959, requires
“the government to prove that the defendant committed murder—however that crime is
defined by the underlying state or federal law”).
14
§ 2(a). 9 As the Supreme Court recently explained in Rosemond v. United States, “[this]
provision derives from (though simplifies) common-law standards for accomplice
liability.” 572 U.S. 65, 70 (2014). Thus, “[a]s at common law, a person is liable under § 2
for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in
furtherance of that offense, (2) with the intent of facilitating the offense’s commission.”
Id. at 71.
Here, we conclude that the government’s evidence regarding Anastasio easily
satisfies the “intent requirement”—i.e., the mens rea element—of federal accomplice
liability. Id. at 77. According to the Cooperators’ testimony at trial, Anastasio was
present when the Gang planned its attack on 155 Pennsylvania Street. Knowing full
well the murderous intentions of the assembled group, Anastasio nonetheless
attempted to acquire a firearm of his own so that he could join the shooters. Based on
this conduct, a rational jury could conclude beyond a reasonable doubt that Anastasio
“wishe[d] to bring about” the murders of Young and McDonald—an entirely
foreseeable consequence of the retaliatory shooting. Id. at 76; see also United States v.
9The accompanying subsection, § 2(b), provides relatedly that “[w]hoever willfully causes an
act to be done which if directly performed by him or another would be an offense against the
United States, is punishable as a principal.” 18 U.S.C. § 2(b). The government does not appear to
pursue the § 2(b) theory of accomplice liability on appeal. See Gov’t Br. 80-81 (arguing that
Anastasio “intentionally aided” the shooters). In any event, we find no evidence in the record to
suggest that Anastasio was the “cause in fact” of the murders of MacDonald or Young. See
United States v. Concepcion, 983 F.2d 369, 383-84 (2d Cir. 1992) (Ҥ 2(b) adopts the general
princip[le] of causation in criminal law that an individual (with the necessary intent) may be
held liable if he is a cause in fact of the criminal violation, even though the result which the law
condemns is achieved through the actions of innocent intermediaries.”).
15
Nelson, 277 F.3d 164, 197 (2d Cir. 2002) (holding that a jury may infer that “a person
intends the ordinary consequences of his voluntary acts”). Indeed, Anastasio admitted
as much when, after the shooters returned to the apartment and started talking about
the shooting, Anastasio complained, “[W]hy didn’t you let me go? Why didn’t you let
me go?” Smith App’x 4812. Thus, viewed in the light most favorable to the government,
the trial evidence leaves us with no doubt that Anastasio possessed the mens rea
necessary to be an accomplice to murder under § 2.
The more challenging question is whether Anastasio’s conduct satisfied the
“affirmative-act requirement”—that is, the actus reus element—of federal accomplice
liability. Rosemond, 572 U.S. at 74. In urging that it does, the government highlights that
Anastasio was present when the Gang planned its retaliatory attack; that he
participated in the assault of Maldonado and her boyfriend at the park; that at the
apartment he twice attempted to take control of one of the Gang’s weapons for his own
use; and that he handed the .44 caliber gun to Harville.
Anastasio responds that none of this conduct actually facilitated the commission
of the two murders. He asserts, for example, that although he was present for the
planning session, he did not offer any suggestions or make any contributions to forming
the Gang’s plans. He further maintains that his decision to relinquish the .44 caliber gun
to Harville did not advance the commission of the murders at all—stressing, in
particular, Harville’s unchallenged testimony that the handgun malfunctioned during
the shooting and that, as a result, Harville was unable to fire a single bullet. Thus,
Anastasio submits, although he may have been an accomplice to attempted murder, he
did not aid and abet the crimes that the Indictment charged him with: the murders of
MacDonald and Young.
The affirmative act requirement for accomplice liability raises no more than a
low hurdle for the government’s proof to clear, it is true. See United States v. Garguilo,
16
310 F.2d 249, 253 (2d Cir. 1962) (Friendly, J.) (“[E]vidence of an act of relatively slight
moment may warrant a jury’s finding participation in a crime.”). “In proscribing aiding
and abetting,” the Supreme Court has observed, “Congress used language that
comprehends all assistance rendered by words, acts, encouragement, support, or
presence.” Rosemond, 572 U.S. at 73. For their part, “courts have never thought relevant
the importance of the aid rendered.” Id. at 75. Thus, a defendant’s acts need “not
advance each element of the offense” to support federal accomplice liability; “all that
matters is that they facilitated one component.” Id. at 74-75. Nor must a defendant
provide more than a “minimal” amount of aid to qualify as an aider and abettor.
Id. at 73. Indeed, as one venerable treatise put it, “‘the quantity of assistance [is]
immaterial,’ so long as the accomplice did ‘something’ to aid the crime.” Id. (quoting
R. Desty, A Compendium of American Criminal Law § 37a, p. 106 (1882)) (emphasis in
original). This is because, as the Supreme Court has explained, “every little bit helps—
and a contribution to some part of a crime aids the whole.” Id.
At the same time, however, the actus reus element of federal accomplice liability
is not so capacious as to encompass any act taken in relation to some identified criminal
activity. Rather, our case law imposes at least two limitations. First, we have repeatedly
emphasized that, to convict a defendant of aiding and abetting a crime, the government
must prove that the defendant’s “efforts contributed towards [the] success” of the
crime, even if only at the margins. See, e.g., United States v. Huezo, 546 F.3d 174, 179
(2d Cir. 2008); United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999); United States v.
Labat, 905 F.2d 18, 23 (2d Cir. 1990); United States v. Wiley, 846 F.2d 150, 154 (2d Cir.
1988); United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir. 1985). The government
must prove that the defendant “furthered the criminal act.” United States v. Nusraty, 867
F.2d 759, 766 (2d Cir. 1989) (emphasis in original); see also United States v. Pipola, 83 F.3d
556, 562 (2d Cir. 1996) (“To be convicted of aiding and abetting, the defendant must
17
have taken some conscious action that furthered the commission of the underlying
crime.”). Said another way: while the quantum of assistance provided by an accomplice
may be trifling, it cannot be zero. Rather, to impose criminal liability under the federal
aiding-and-abetting statute requires proof that a defendant performed some act that
“directly facilitated or encouraged” the commission of a substantive crime. United States
v. Medina, 32 F.3d 40, 45 (2d Cir. 1994).
Second, to support accomplice liability, the assistance rendered by a defendant
must contribute to the success of “the specific underlying crime” for which the
defendant is charged with aiding and abetting. Pipola, 83 F.3d at 562. This is because
“aiding and abetting does not constitute a discrete criminal offense but only serves as a
more particularized way of identifying persons involved.” Smith, 198 F.3d at 383. In
other words, “when a person is charged with aiding and abetting the commission of a
substantive offense, the ‘crime charged’ is . . . the substantive offense itself.” United
States v. Oates, 560 F.2d 45, 55 (2d Cir. 1977); see also Smith, 198 F.3d at 383 (same). For
this reason, a defendant who has been indicted for aiding and abetting a particular
crime cannot be convicted based on evidence that he aided and abetted a second,
separate crime, even if related to the first. See United States v. Ledezma, 26 F.3d 636,
641-42 (6th Cir. 1994) (reversing a defendant’s conviction for possession with the intent
to distribute where the defendant was involved in shipping drugs, but did not aid or
abet the particular shipment that the indictment charged him with possessing); see also
Wiley, 846 F.2d at 155 (refusing to infer from his participation in one fraudulent scheme
that the defendant aided and abetted another “distinct,” but related, fraudulent
scheme). Instead, the government must prove that “the defendant consciously assisted
the commission of the specific crime [charged in the indictment] in some active way.”
Medina, 32 F.3d at 45.
18
Several of our decisions help illustrate the impact of these two limitations on the
types of acts that can support federal accomplice liability. In Garguilo, for example, we
considered whether a defendant’s mere presence at the scene of a crime could render
him liable for aiding and abetting that crime. 310 F.2d at 253. Generally, we said, the
answer is no, because accomplice liability requires a defendant to “do[] something to
forward the crime.” Id. at 254. We recognized, however, that in some cases, a
defendant’s presence may advance the commission of the crime: an example would be
“the attendance of a 250-pound bruiser at a shakedown as a companion to the
extortionist, or the maintenance at the scene of crime of someone useful as a lookout.”
Id. at 253. We therefore drew a distinction between those cases in which a defendant’s
presence “help[s]” or “positively encourage[s]” the commission of a crime and those
cases in which a defendant’s presence merely marks him as “a companion” to the actual
perpetrator of the crime, observing that the former, but not the latter, can serve as a
basis for accomplice liability under § 2. Id.
Later, in Labat, we addressed whether a defendant could be convicted as an
accomplice for possession of cocaine based on his unsuccessful efforts to procure drugs
for a co-conspirator. See 905 F.2d at 20-21, 22-23. The trial evidence showed that the
defendant (Labat) told his co-conspirator (Moon) that he would try to obtain and
personally deliver one kilogram of cocaine to Moon in New York. See id. at 20-21. While
Labat worked to acquire and transport the drugs, however, Moon and one of his
associates (Ray) obtained that same amount of cocaine from another source (Dentel) at a
lower price. Id. at 21. Moon then sold those drugs to an undercover police officer, and
on the basis of that sale, the government charged Labat with one count of possession
with intent to distribute. Id. Upon reviewing the trial record, however, we found no
evidence that Labat intended Moon to possess the specific kilogram of cocaine that
formed the basis of Labat’s possession charge—i.e., the cocaine obtained from Dentel
19
and sold to the undercover officer. See id. at 23. “Nor,” we continued, “was there any
evidence that Labat’s efforts made any contribution whatever to Moon’s obtaining the
cocaine from Dentel.” Id. Thus, although Labat plainly intended for Moon to possess a
kilogram of cocaine (and took steps to facilitate that criminal objective), we reversed
Labat’s conviction for possession with intent to distribute, concluding that insufficient
evidence supported the specific possession charge set forth in the indictment. See id.
For purposes of Anastasio’s appeal, however, our decision in Medina offers
perhaps the most relevant illumination of the affirmative act requirement for federal
accomplice liability. See 32 F.3d at 45-46 (Jacobs, J.). In that case, a jury convicted the
defendant (Medina) of, among other crimes, aiding and abetting the use or carriage of
firearms during an attempted robbery, in violation 18 U.S.C. §§ 924(c) and (2). See id.
at 42. According to the government’s evidence, Medina devised a plan for three of his
associates (Lopez, Villanueva, and Delgado) to rob Medina’s former employer. Id. at 42.
In the days before the heist, Medina asked Lopez whether he had a gun. Id. at 43. When
Lopez responded that Villanueva had a firearm (but Lopez apparently did not), Medina
gave Lopez a revolver and instructed him on how to use it. Id. Lopez turned out to be a
confidential informant, however, and he handed Medina’s revolver over to a
government agent before the robbery was attempted. Id.
Reviewing this evidence, we reversed Medina’s § 924(c) conviction on sufficiency
grounds, concluding that “Medina performed no act that specifically aided and abetted
the use or carrying of a gun during the attempted robbery.” Id. at 42. His conviction
could not rest on the revolver that Medina gave to Lopez, we explained, because that
firearm “was not carried or used by anyone during the attempted robbery.” Id. at 45.
Nor was it supported by the fact that “Villanueva and Delgado each carried a
semi-automatic weapon to the attempted robbery,” since we saw “no evidence that
Medina acted in any way to facilitate or encourage the use or carrying of those
20
weapons.” Id. We further observed that, while Medina was the mastermind behind the
robbery, “his plans did not entail a gun that was actually used or carried during the
attempted robbery.” Id. at 42. Thus, because nothing in the factual record suggested that
Medina aided or abetted the use or carriage of a firearm by any of the robbers, we
reversed his conviction under § 924(c). See id. at 45. 10
Applying this case law to the record before us, we conclude that Anastasio’s
conduct is not enough to satisfy the affirmative act requirement of federal accomplice
liability. Although Anastasio was present while members of the 10th Street Gang
discussed and formulated its scheme for revenge, nothing in the record suggests that
Anastasio spoke during—much less contributed to—this planning process. Nor has the
government offered evidence that Anastasio’s mere presence at Thurmond’s apartment
10We also rejected the notion that Medina aided and abetted the commission of a § 924(c)
offense merely because he “performed an act to facilitate or encourage the robbery.” Medina,
32 F.3d at 45. In doing so, we reasoned that the “specific crime” prohibited by § 924(c) is the use
or carriage of a firearm during and in relation to a predicate crime (e.g., a robbery), not the
predicate crime itself. Id. Later, in Rosemond, the Supreme Court rejected this interpretation of
§ 924(c). See 572 U.S. at 75. Characterizing § 924(c) as a “double-barreled crime” that involves
both “the use or carriage of a gun” and “the commission of a predicate (violent or drug
trafficking) offense,” id. at 71, the Rosemond Court concluded that an individual could aid and
abet a § 924(c) violation “by facilitating either [the predicate offense] . . . or the firearm use (or of
course both),” id. at 74.
Thus, had Rosemond been handed down before we decided Medina, we likely would not
have reversed Medina’s conviction in light of his contributions to the attempted robbery
(i.e., the predicate offense). Rosemond casts no doubt, however, on Medina’s requirement that an
aider-and-abettor must actually contribute to the success of the underlying offense. Indeed, the
majority opinion in Rosemond repeatedly acknowledges that federal accomplice liability requires
a defendant to “d[o] something to aid the [substantive] crime.” Id. at 73 (emphasis in original); see
also, e.g., id. at 74 (“[W]e approved a conviction for abetting mail fraud even though the
defendant had played no part in mailing the fraudulent documents; it was enough to satisfy the
law’s conduct requirement that he had in other ways aided the deception.”); id. at 74–75 (“It is
inconsequential . . . that [a defendant’s] acts did not advance each element of the offense; all that
matters is that they facilitated one component.”).
21
encouraged or otherwise influenced the Gang to commit the murders. Indeed, as far as
we can tell from the record, Anastasio played no “role” in the execution of the
retaliatory shooting “beyond that of a companion” to the shooters, and even that he did
at a distance from the shooting. Garguilo, 310 F.2d at 253. He did not, for example,
supply any of the firearms used during the shooting; provide any information on the
location of the 7th Street Gang; serve as a look-out during the shooting; transport any of
the shooters to or from 155 Pennsylvania Street; or, after the crime, help shield the
shooters from police investigation.
The government points out that Anastasio attempted to acquire a firearm of his
own, and that he later held the .44 caliber handgun and relinquished it to Harville. But
the attempt to acquire a gun failed; 11 and as to the gun at issue, Anastasio did not bring
it to the apartment. Rather, he found it in a common pile of guns that others had
brought, and he unwillingly yielded it to a more senior member of the Gang. His
conduct therefore had no more impact on the event than Medina’s delivery of a gun to a
confidential informant, or Labat’s unsuccessful efforts to procure cocaine for Moon.
See Medina, 32 F.3d at 45-46; Labat, 905 F.2d at 23. In those cases and in this one, the
defendant did nothing to “further[] the criminal act” or “contribute[] toward[] its
success.” Nusraty, 867 F.2d at 766; Zambrano, 776 F.2d at 1097. The Young and
MacDonald murders were—at least with respect to Anastasio—a “foregone
conclusion.” Medina, 32 F.3d at 46. The gun was always going to be available, and a
Gang member (likely Harville) was always going to bring it to the ambush.
11The government did not charge Anastasio with attempted aiding and abetting, a putative
crime that some of our sister circuits have suggested does not even exist under federal law.
See, e.g., United States v. Jayavarman, 871 F.3d 1050, 1056 (9th Cir. 2017); United States v. Samuels,
308 F.3d 662, 669 (6th Cir. 2002); United States v. Giovannetti, 919 F.2d 1223, 1227 (7th Cir. 1990).
22
2. Aiding and Abetting under New York Penal Law § 20.00
We need not tarry long on whether Anastasio aided and abetted the two murders
under New York Penal Law § 20.00. 12 Although the principles of accomplice liability
under New York law may differ somewhat from the corresponding federal law, they
impose at least two overlapping requirements that, together, resolve Anastasio’s appeal.
First, consonant with our interpretation of the federal aiding-and-abetting
statute, New York courts have held that under § 20.00, a defendant’s “mere presence at
the scene of a crime, even with knowledge that the crime is taking place, or mere
association with the perpetrator of a crime, is not enough for accessorial liability.”
E.g., People v. Lopez, 137 A.D.3d 1166, 1167 (2d Dep’t 2016); In re Tatiana N., 73 A.D.3d
186, 190-91 (1st Dep’t 2010); see also People v. Cabey, 85 N.Y.2d 417, 422 (1995) (“[A]
defendant’s presence at the scene of the crime, alone, is insufficient for a finding of
criminal liability.”). Indeed, at least one Appellate Division has gone further and found
no accomplice liability where a defendant was both present at the scene of the crime
and uttered words of encouragement to the perpetrator—conduct that would likely
qualify as aiding and abetting under federal law. Compare People v. Fonerin, 159 A.D.3d
717, 719 (2d Dep’t 2018) (no accomplice liability where a defendant said, “Do that shit,
man,” right before his co-defendant set the victim on fire), with Garguilo, 310 F.2d at 253
(“[I]t is enough if the presence of the alleged aider and abettor has . . . positively
encouraged the perpetrator . . . .”).
12 Section 20.00 provides:
When one person engages in conduct which constitutes an offense, another person
is criminally liable for such conduct when, acting with the mental culpability
required for the commission thereof, he solicits, requests, commands, importunes,
or intentionally aids such person to engage in such conduct.
N.Y. Penal Law § 20.00.
23
Second, just as we have said that a defendant must actually contribute to the
success of a crime to qualify as an aider and abettor under 18 U.S.C. § 2, the New York
Court of Appeals has interpreted the state’s accomplice statute as requiring evidence
that “a defendant exhibited [some] calculated or direct behavior that purposefully
affected or furthered the [substantive crime].” People v. Bello, 92 N.Y.2d 523, 526 (1998).
This requirement, New York courts have explained, is “integral” to criminal liability
under § 20.00. E.g., id.; People v. Slade, 133 A.D.3d 1203, 1204 (4th Dep’t 2015). In line,
then, with our case law on federal accomplice liability, a defendant is not an aider-and-
abettor under New York law unless he “personally engaged in some voluntary act that
was specifically connected to the [actual perpetrator’s] misconduct,” People v. Byrne, 77
N.Y.2d 460, 467 (1991), and in doing so, he “intentionally and directly assisted in
achieving the ultimate goal of the [criminal] enterprise,” Bello, 92 N.Y.2d at 526.
Here, as discussed in detail above, nothing in the record suggests that
Anastasio’s conduct “affected or furthered” the murders for which he is charged with
aiding and abetting. Id. Rather, the government’s evidence merely establishes that
Anastasio associated with the perpetrators of those crimes in the hours leading up to
and then following the shooting. Thus, for the same reasons that Anastasio did not aid
or abet the two murders as a matter of federal law, we conclude that he did not act as an
accomplice within the meaning of New York Penal Law § 20.00. Accordingly, we
reverse the judgment of conviction that is based on the jury’s verdict as to the VCAR
Murder Counts and the Murder Enhancements of the RICO Conspiracy Count.
B. RICO Conspiracy Count
In contrast, we find no merit in Anastasio’s sufficiency challenge to his
conviction on the RICO Conspiracy Count. The conspiracy provision of RICO, 18 U.S.C.
§ 1962(d), “proscribes an agreement to conduct or to participate in the conduct of an
enterprise’s affairs through a pattern of racketeering activity.” United States v. Arrington,
24
941 F.3d 24, 36 (2d Cir. 2019). As the Supreme Court has explained, RICO’s definition of
an “enterprise” is “broad”: it generally encompasses any “group of persons associated
together for a common purpose of engaging in a course of conduct.” Boyle v. United
States, 556 U.S. 938, 944, 946 (2009). An enterprise, in turn, engages in “a pattern of
racketeering activity” when its members commit at least two racketeering acts—such as
murder, narcotics trafficking, or robbery—that both “[are] related to one another” and
“have a nexus to the enterprise” (the so-called “predicate acts”). United States v. Cain,
671 F.3d 271, 284 (2d Cir. 2012); see also 18 U.S.C. § 1961(1) (defining “racketeering
activity”).
Importantly, the crime of RICO conspiracy “centers on the act of agreement.”
United States v. Applins, 637 F.3d 59, 81 (2d Cir. 2011) (emphasis in original). Thus, in
contrast to RICO’s substantive offenses, see, e.g., 18 U.S.C. § 1962(c), “the Government
need not establish the existence of an enterprise” to “prove a RICO conspiracy,”
Arrington, 941 F.3d at 36. Nor must it establish that a pattern of racketeering activity
actually took place. See United States v. Zemlyansky, 908 F.3d 1, 11 (2d Cir. 2018) (“To
prove the pattern element, the government must show that two or more predicate acts
were, or were intended to be, committed as part of the conspiracy.”). Rather, the
government “need only prove that the defendant knew of, and agreed to, the general
criminal objective of a jointly undertaken scheme.” Arrington, 941 F.3d at 36-37.
Here, a rational factfinder could conclude beyond a reasonable doubt that
Anastasio agreed with other members of the 10th Street Gang to function as a unit for
the common purpose of selling drugs. As the grand jury charged in the Indictment, and
the government proved at trial, Gang members worked together to distribute drugs in
their territory, organizing themselves into a loose hierarchy of roles and responsibilities.
See Applins, 637 F.3d at 73 (“[A]n association-in-fact enterprise under RICO need not
have a hierarchical structure, a chain of command, or other business-like attributes.”).
25
In doing so, they viewed themselves as a single group united by a shared identity. To
protect both the profits and “reputation” of the 10th Street Gang, Smith App’x 3810,
members intended to—and did in fact—engage in a pattern of racketeering activity that
included murder, robbery, and the distribution of drugs.
The jury was entitled to find, moreover, that Anastasio knowingly agreed to join
and facilitate this racketeering scheme. The Cooperators identified Anastasio as an
active member of the Gang: one who served as a lookout during drug deals, sold
marijuana, and fought rival gangs. Although Anastasio’s actions at the apartment
where the murders were planned did not render him an accomplice to the murders, his
conduct there certainly provides a reasonable basis for inferring that Anastasio knew
about, and agreed to, “the general criminal objective” of the 10th Street Gang. Arrington,
941 F.3d at 36-37. In light of this and other evidence showing Anastasio’s efforts to
facilitate the Gang’s racketeering activity, we have no doubt that a reasonable jury
could convict him of RICO conspiracy.
In arguing to the contrary, Anastasio faults the government for purportedly not
proving that Anastasio himself engaged in—or intended to engage in—at least two acts
of racketeering. As we have explained on multiple occasions, however, “[s]o long as [a]
defendant knowingly agreed to facilitate the general criminal objective of a jointly
undertaken racketeering scheme, the government need not prove that he or she
knowingly agreed to facilitate any specific predicate act.” Zemlyansky, 908 F.3d at 11.
Rather, we have said, “it suffices to show that [the defendant] intended that the broad
goals of the racketeering scheme be realized, along with evidence that some (or any)
members of the conspiracy intended that specific criminal acts be accomplished.” Id.
Because we conclude that the government’s evidence against Anastasio satisfies this
standard, we reject Anastasio’s sufficiency challenge to his conviction on the RICO
Conspiracy Count.
26
II. Pretrial Rulings
We also identify no reversible error in the District Court’s decisions to deny
Anastasio’s Batson challenge and his motion to sever his trial from that of his co-
defendants.
As to the former, all four Defendants claim that the government exercised its
peremptory strikes on the basis of race when it moved to excuse two of the three
Hispanic individuals who were present in the venire. As we explain, however, in a
separate opinion resolving Delgado’s appeal, the District Court did not clearly err in
crediting the government’s statement of its non-discriminatory reasons for striking
those prospective jurors. See United States v. Farhane, 634 F.3d 127, 154 (2d Cir. 2011)
(“Such a ruling represents a finding of fact, which we will not disturb in the absence of
clear error.”). We now adopt and incorporate that Batson analysis here, reaffirming that
the record before us discloses no basis for disturbing the District Court’s Batson
determination.
As for severance, Anastasio urges that he was entitled to a separate trial because
of his purportedly minimal role in the 10th Street Gang. In Anastasio’s view, the vast
bulk of the evidence presented at trial had nothing to do with him, but rather concerned
his co-defendants’ violent acts and drug deals. This evidence, he contends, had a
prejudicial “spillover effect,” leading the jury to convict Anastasio “based not on what
he did but on what others around him did.” Anastasio’s Reply Br. 1.
A district court may sever trials if “the joinder of offenses or defendants . . .
appears to prejudice a defendant.” Fed. R. Crim. P. 14(a). The decision to sever,
however, is “committed to the sound discretion of the trial judge,” and we will not
override an exercise of that discretion absent “clear abuse.” United States v. Chang An-Lo,
851 F.2d 547, 556 (2d Cir. 1988). “It is not enough,” we have said, for a defendant “to
27
demonstrate that separate trials would have increased the chances of the [defendant’s]
acquittal.” United States v. Spinelli, 352 F.3d 48, 54-55 (2d Cir. 2003). Instead, the
defendant must “show prejudice so severe as to amount to a denial of a constitutionally
fair trial, or so severe that his conviction constituted a miscarriage of justice.” United
States v. Blount, 291 F.3d 201, 209 (2d Cir. 2002).
Anastasio has not carried this “heavy burden.” Chang An-Lo, 851 F.2d at 556. As
an initial matter, we conclude that much of the evidence presented at trial “would have
been admissible at a separate trial of [Anastasio], since it was relevant to proving the
nature and scope of the [RICO] conspiracy in which [all Defendants] were, to differing
degrees, involved.” Spinelli, 352 F.3d at 56. The testimony concerning the 10th Street
Gang’s structure and criminal activity, for example, helped to establish it as “a
racketeering scheme” that “involved, or by agreement between any members of the
conspiracy was intended to involve, two or more predicate acts of racketeering.”
Zemlyansky, 908 F.3d at 11. Likewise, the shooting at 155 Pennsylvania Street—the focal
point of the five-week trial—was probative of Anastasio’s agreement to join that
racketeering scheme. Although the government’s evidence concerning the retaliatory
shooting failed to establish Anastasio’s liability as an accomplice to murder, it certainly
illustrated his knowledge of, agreement to, and participation in the Gang’s criminal
objectives.
To be sure, the record reflects that Anastasio played a less prominent role in the
10th Street Gang than did some of his co-defendants. As we have explained elsewhere,
however, “differing levels of culpability and proof are inevitable in any multi-defendant
trial and, standing alone, are insufficient grounds for separate trials.” E.g., United States
v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983); United States v. Scarpa, 913 F.2d 993, 1015
(2d Cir. 1990). Indeed, not only are joint trials “constitutionally permissible” when they
place “defendants who are . . . marginally involved alongside those heavily involved”;
28
they are “often particularly appropriate in circumstances where the defendants are
charged with participating in the same criminal conspiracy.” Spinelli, 352 F.3d at 55.
That is what the District Court faced here.
We are reassured by the District Court’s express direction to the jury that it must
consider the guilt of each Defendant “separately,” and its reminder that “[a] person
may know or be friendly with a criminal without being a criminal himself.” Smith
App’x 5394, 5420. These instructions sufficiently addressed the risk of spillover
prejudice to Anastasio that joinder of Defendants’ trials might have produced. See
Chang An-Lo, 851 F.2d at 556-57 (concluding that similar jury instructions mitigated the
risk of spillover prejudice). Absent any particularized claim of prejudice, we are unable
to discern any abuse of discretion—much less a “clear abuse”—in the District Court’s
denial of Anastasio’s motion to sever. Scarpa, 913 F.2d at 1014.
CONCLUSION
For the reasons set forth above, we AFFIRM Anastasio’s judgment of conviction
as to the RICO Conspiracy Count; we REVERSE the judgment as to the two VCAR
Murder Counts and the two Murder Enhancements, and direct the District Court to
enter a judgment of acquittal on the VCAR Murder Counts and the Murder
Enhancements; and we REMAND the cause for RESENTENCING.
29