Appeal from judgments of the United States District Court for the District of Connecticut (Janet C. Hall, District Judge, presiding), entered on November 13, 2003, December 5, 2003, January 23, 2004, April 15, 2004, and June 3, 2004, following jury trial verdicts for David L. Burden, Kelvin Burden, Jermain Buchanan, and David M. Burden, and a plea of guilty by Terrance*fn2 Boyd on RICO and VCAR counts. We affirm in part and remand for resentencing.
The opinion of the court was delivered by: John R. Gibson, Circuit Judge
Before: HALL, LIVINGSTON, and JOHN R. GIBSON, Circuit Judges.*fn1
This appeal arises out of a twenty-five count indictment alleging that the defendants were part of the Burden Organization, a racketeering enterprise engaged in the distribution of cocaine and cocaine base that also undertook violent acts to promote the enterprise's drug trafficking.
Defendants David L. Burden, Kelvin Burden, Jermain Buchanan, and David M. Burden were convicted by a jury following a month-long trial on multiple counts including violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §1962, the Violent Crimes in Aid of Racketeering statute ("VCAR"), 18 U.S.C. § 1959, and conspiracy to distribute cocaine and cocaine base. They challenge whether the murder and attempted murder of those they believed to be responsible for the death of a family member were sufficiently related to the enterprise alleged in the indictment, or were performed for the purpose of maintaining or improving their position in the enterprise, such that the murder and attempted murder could form the basis for the RICO and VCAR convictions. All four defendants also allege that the government's summation was unfairly prejudicial, and each defendant raises individual issues as well. The remaining defendant on appeal, Terrence Boyd, pleaded guilty to one count of possessing with intent to distribute and distributing cocaine base. He alleges that the district court unreasonably declined to resentence him on remand. We address each argument in turn.
Terrence Boyd, Jermain Buchanan, and Kelvin, David M., and David L. Burden were among a group of people who trafficked cocaine and cocaine base in Norwalk, Connecticut from 1997 until 2001. Kelvin Burden supervised the operation. He had sources who supplied him with kilogram quantities of cocaine and cocaine base, he cooked the cocaine and repackaged the drugs for street-level sales, and over time he began coordinating distribution of the drugs to a number of street dealers. He lived at 27 Lincoln Avenue, where the narcotics activity took place, members of the group congregated, and weapons were stored. The government referred to it as "the stash house." Other members of Kelvin's family also lived there from time to time during this period. Kelvin was incarcerated twice during 2000, but he continued to direct operations from jail.
Beginning in 1998, the group's activities expanded to include violent acts used to promote its narcotics business and strengthen the organization's power. Two separate disputes erupted. The first was with members of the "Hill Crew," a group of people from the Hill section of Norwalk who were also involved in drug trafficking. This dispute began in January 1998 when Willie Prezzie, a friend and relative of Kelvin, was attempting to collect on a drug debt from Hill Crew member Shaki Sumpter. The debt arose when Prezzie fronted Shaki some drugs for street-level distribution and Sumpter failed to pay for them. Sumpter arranged to meet Prezzie and Jermain Buchanan, purportedly to repay the debt. When they met, Buchanan and Prezzie were in a car along with Sean Burden and Demetrius Story. Buchanan was driving. Sumpter and fellow Hill Crew member Rodrick Richardson approached the car, both with guns pointed, and tried to rob Prezzie of money and marijuana. As Buchanan drove away, Sumpter and Richardson fired shots at the car. Sean Burden was struck by the gunfire but not killed.
When Prezzie told Kelvin about the incident, Kelvin wanted to retaliate. He gave weapons stored at the Lincoln Avenue house to Buchanan and David M. Burden (also known as "DMX"), who went with Prezzie in search of Richardson and Sumpter. They were not able to find them, so members of the Burden Organization did nothing more at the time. However, two months later there was an exchange of gunfire between members of the Organization and the Hill Crew outside of the Lincoln Avenue house.
The second dispute was with Marque Young, a drug dealer to whom Kelvin had been supplying crack cocaine for resale. Kelvin became upset with Young in May 1998 when Terrence Burden was injured in a fight and six days later his brother Sean was shot and killed. Although Young was not directly involved in either incident, he was present at both and Kelvin held him responsible for Sean's fatal shooting. Over the next several weeks Young exchanged taunts and insults with Kelvin, Jermain, and other members of the Burden family, and Kelvin and other members of the organization planned but never carried out acts of retaliation. Ultimately, though, on July 1, 1999, Jermain Buchanan and another person carried out a drive-by shooting in front of Young's house where Young and Derek Owens were sitting in Young's car. Owens was killed and Young was wounded such that he is now a paraplegic.*fn3
The violence between the Burden Organization and the Hill Crew resurfaced in June 1999. Richardson, who had been involved in the attempted robbery of Prezzie a year and a half earlier, was at a bar known for drug trafficking at the same time Kelvin was there. Richardson began chastising Kelvin for failing to avenge his brother Sean's death, accusing him of going on with his business and spending money on a Mercedes Benz instead of worrying about who killed his brother. Richardson was outside the same bar the next night when Buchanan came running toward him and shot him. A bullet hit Richardson in the elbow, paralyzing his arm. A month or two later, David L. Burden (known as "QB") got in a dispute with Terra Nivens, a Hill Crew member, over Nivens's relationship with QB's sister. Opposing members of the Burden Organization and the Hill Crew gathered and began facing off, threatening and taunting each other. St. Clair Burden said he wanted to return to the Lincoln Avenue house to get his gun, and Mike Dawson, a Hill Crew member, stepped in and started firing shots into the car in which Kelvin was riding. A bullet from Dawson's gun struck Kelvin in the chest.
Several additional instances of violence occurred between the Burden Organization and the Hill Crew in late 1998 and early 1999, most frequently involving members of the two groups shooting at each other with both sides vowing revenge. Ultimately, the violence ended when key members of the Hill Crew moved away or were incarcerated.
In connection with these incidents, the Burdens, Buchanan, and Boyd were charged in this multi-count indictment. All but Boyd were tried by a jury. Boyd entered a plea of guilty. The jury returned guilty verdicts on many of the counts. All four trial defendants were acquitted of Count Eleven, which charged VCAR attempted murder of Richardson, Hatton, and other members of the Hill Crew on October 10, 1999. The Burdens and Buchanan were all charged with and convicted of the substantive RICO count. Those four individuals were charged with various combinations of ten racketeering acts. The jury found the government proved seven racketeering acts for Kelvin Burden: drug conspiracy (Act 1); conspiracy to murder Rodrick Richardson (Act 2A); attempted murder of Rodrick Richardson on June 27, 1999 (Act 2C); conspiracy to murder Marque Young (Act 3A); attempted murder of Marque Young (Act 3B); murder of Derek Owens (Act 4); conspiracy to murder members of the Hill Crew from in or about August 1999, until on or about October 10, 1999 (Act 5A); and attempted murder of members of the Hill Crew on September 3, 1999 (Act 5B).
Kelvin was also found guilty of RICO conspiracy (Count Two); VCAR conspiracy to murder Rodrick Richardson in or about June 1999 (Count Three); VCAR attempted murder of Rodrick Richardson on June 27, 1999 (Count Five); VCAR conspiracy to murder Marque Young (Count Six); VCAR attempted murder of Marque Young (Count Seven); VCAR murder of Derek Owens (Count Eight); VCAR conspiracy to murder members of the Hill Crew (Count Nine); VCAR attempted murder of Fred Hatton and other members of the Hill Crew on September 3, 1999 (Count Ten); conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of a mixture containing a detectable amount of cocaine, and 50 grams or more of a mixture or substance containing a detectable amount of cocaine base (Count Twelve); and possession with intent to distribute and distributing 5 grams or more of a mixture or substance containing a detectable amount of cocaine base (Count Fourteen). Kelvin was sentenced to life in prison.
Jermain Buchanan's RICO conviction was based on six racketeering acts, Acts 1, 2A, 2C, 3A, 3B, and 4. He was also convicted of Counts Two, Three, Five, and Twelve. Buchanan was sentenced to life in prison. David "DMX" Burden was convicted of racketeering based on Acts 1, 5A, and 5B. He was also convicted of Counts Two, Nine, Ten, and Twelve; four counts of narcotics distribution; and possession of a firearm during a drug trafficking crime (Count Seventeen). DMX was sentenced to 352 months in prison. David "QB" Burden's RICO conviction was based on racketeering Acts 1,5A, and 5B. He was also convicted of Counts Two, Nine, Ten, and Twelve. QB received a sentence of 210 months' imprisonment.
The district court denied the motions for judgment of acquittal or new trial filed by David L. Burden, Kelvin Burden, Jermain Buchanan, and David M. Burden. Each filed a timely notice of appeal. Boyd was sentenced to 188 months' imprisonment and five years of supervised release following his guilty plea, and he too filed a timely notice of appeal. Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and this Court's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), we remanded the cases of DMX Burden, QB Burden, and Jermain Buchanan upon the government's motion for possible resentencing and we sua sponte remanded Terrence Boyd's case. The government filed no Crosby motion with respect to Kelvin Burden because he had received a mandatory life sentence. The district court declined to resentence QB, Buchanan, and Boyd, but did hold a resentencing for DMX where he received a 264-month sentence, a reduction of 88 months. The appeals were reinstated and we now consider the issues they raise.
The trial defendants allege that the government failed to introduce sufficient evidence that they operated and managed a continuous enterprise engaged in a pattern of racketeering activity to support their convictions on the RICO and VCAR counts. They assert that the evidence showed no more than a group of people who sold drugs together, and did not show a well-defined organization with the requisite continuity or structure to constitute an enterprise. Simply stated, their argument is that the racketeering acts alleged in the indictment were attributable to various individuals, acting alone or with others, trying to settle personal beefs. Thus, they dispute that the evidence showed a pattern of racketeering activity because the individuals' actions were not related to activities of an enterprise.*fn4 Finally, they submit that the evidence failed to demonstrate that the trial defendants participated in the operation or management of an enterprise. We review a challenge to the sufficiency of the evidence by considering the evidence in the light most favorable to the government, giving credit to every inference the jury might have drawn in the government's favor. United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir. 2001). We will affirm if any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 649. The weight of the evidence is not for us to consider, and thus any lack of corroboration is irrelevant because that speaks to the weight and not the sufficiency of the evidence. See United States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003).
A RICO conviction requires the government to prove that the defendant participated or conspired to participate, directly or indirectly, in the conduct of an enterprise through a pattern of racketeering activity. United States v. Allen, 155 F.3d 35, 40 (2d Cir. 1998).
A RICO enterprise is "a group of persons associated together for a common purpose of engaging in a course of conduct," 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 (1981). An enterprise is an entity. Id. The trial defendants assert that, while the evidence showed that some members of the Burden family and a few of their friends were part of a group that bought and sold drugs, the group lacked the structure required of an enterprise. They assert that no hierarchy was in place, which they contend argues against the existence of an enterprise. They also argue that the group lacked continuity because the alleged head of the organization, Kelvin Burden, was incarcerated twice during the time the enterprise is alleged to have existed.
The district court recognized the limitations of the evidence in this case. It noted that "[t]here was evidence to suggest that the Burden narcotics organization was not very structured, particularly in contrast to descriptions of other organizations contained in a number of Second Circuit opinions involving organized narcotics operations that also engaged in acts of violence and other criminal activities."*fn5 In addition, the district court pointed out that the evidence was "somewhat contradictory" but sufficient for a jury to reasonably conclude that the Burden organization had a "quasi-hierarchical structure."
Our deferential review, in which we make no credibility determinations, leads us to conclude that sufficient evidence exists to support the jury's finding that the Burden Organization constituted an enterprise. The Organization had multiple members who joined in the shared purpose of selling drugs and promoting such sales. They had a meeting place, the Lincoln Avenue house, where they were able to traffic drugs out of the public's eye, stored guns, and planned the violent acts they undertook. These activities were orderly because there was a hierarchical structure in place. Kelvin was the head of the Organization, controlling the flow of cocaine and cocaine base, organizing acts of violence, recruiting members, and directing members' activities. One witness described him as the "mastermind." Kelvin gave orders to Lavon Godfrey, a dealer who looked to Kelvin as his sole supplier. Kelvin asked Anthony Burden to serve as DMX's protector on the street, and he sold narcotics that were delivered by St. Clair, DMX, and Buchanan. According to Anthony Burden, a cousin to all four trial defendants, DMX was a lieutenant who distributed drugs to street dealers who sold narcotics for the Burden Organization. QB was a seller who also used guns when called upon to do so. Buchanan was an enforcer and a dealer. Anthony referred to the Burden Organization, of which he was a member, as the "Cream Team."
The record also contains evidence of other organizational structures. Although Kelvin orchestrated retaliatory acts of violence in response to the shooting of Sean Burden in January 1998, Sean's murder in May 1998, and the shooting of QB in October 1999, other violence occurred after a number of members of the Organization agreed to it. For instance, Lavon Godfrey testified that DMX, QB, St. Clair, and member Donny Thigpen jointly agreed to retaliate against members of the Hill Crew after Andre McClendon was shot. St. Clair Burden announced that he was going to terrorize Hill Crew members after Kelvin was shot. In the spring of 1999, Kelvin said that Richardson was the heart of the Hill Crew and needed to be dealt with sooner or later. When Buchanan told Lavon Godfrey that he had shot Richardson in June 1999, Kelvin said it was about time he did something. Later that summer, Godfrey heard DMX saying that they had "shot up the Hill."
The fact that there were different styles of organization between the narcotics business and the violent acts does not negate the jury's finding that the defendants were part of an enterprise. Boyle v. United States, 129 S.Ct. 2237, 2245 (2009). An established hierarchy is not essential to the existence of an enterprise. Id. ("[A]n association-in-fact enterprise . . . need not have a hierarchical structure or a 'chain of command'. . . ."); see, e.g., United States v. Mazzei, 700 F.2d 85, 87 (2d Cir. 1983) (group of players and bettors who conspired to fix basketball games constituted a RICO enterprise). We are mindful 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) (internal quotations and emphasis omitted). In this case, the drug operation and organized violence were fruits of an enterprise.
Although Kelvin and others argue that his two instances of incarceration during the year 2000 interrupted the continuing nature of the enterprise, the record reveals that he continued to direct operations from jail. Although Kelvin had been the cook, Willie Prezzie took over that responsibility. Kelvin told Prezzie how to dole out the drugs to DMX for distribution, and Anthony looked out for DMX during that time. Neither Anthony nor DMX contacted the Organization's suppliers while Kelvin was incarcerated because it was not their role to do so. When Kelvin was released, the Organization's drug sales increased and Anthony was able to return to selling, but the operations had in no way ceased while Kelvin was away. A period of quiescence in an enterprises's course of conduct does not exempt the enterprise from RICO. Boyle, 129 S.Ct. at 2245. We conclude that the members functioned as a continuing unit.
The trial defendants next assert that the government failed to introduce sufficient evidence that the predicate acts alleged in the racketeering counts formed a pattern of racketeering activity. The government must prove both that an enterprise exists and that the conduct in furtherance of the enterprise comprises a pattern. While the RICO enterprise is an entity, the "pattern of racketeering activity" is "a series of criminal acts as defined by the statute." Turkette, 452 U.S. at 583. Such conduct forms a pattern under RICO when it "embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989) (quoting the pattern definition from the Dangerous Special Offender Sentencing Act, 18 U.S.C. § 3575(e) (now repealed), and adopting it for RICO). At least two predicate acts are required to prove a pattern, and the acts must be related and "amount to or pose a threat of continued criminal activity." United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992) (quoting H.J. Inc., 492 U.S. at 239). The requirements of relatedness and continuity protect defendants from RICO charges based on isolated or sporadic criminal acts. United States v. Diaz, 176 F.3d 52, 93 (2d Cir. 1999).*fn6 The trial defendants challenge the horizontal and vertical relatedness and the alleged continuity of the activity.
Horizontal relatedness requires that the racketeering predicate acts be related to each other. However, that relationship need not be direct; an indirect relationship created by the relationship of each act to the enterprise will suffice.
United States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998) ("A predicate act is related to a different predicate act if each predicate act is related to the enterprise."). Vertical relatedness means that the acts are related to the enterprise. It requires that the defendant was enabled to commit the offense solely because of his position in the enterprise or his involvement in or control over the enterprise's affairs, or because the offense related to the activities of the enterprise. United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per curiam). Although the government must provide sufficient evidence of each kind of relatedness, "both the vertical and horizontal relationships are generally satisfied by linking each predicate act to the enterprise. This is because predicate crimes will share common goals . . . and common victims . . . and will draw their participants from the same pool of associates (those who are members and associates of the enterprise)." Id. at 376.
The law also requires that the predicate acts reveal continued racketeering activity or the threat thereof. Diaz, 176 F.3d at 93. "Continuity is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H.J. Inc., 492 U.S at 241.
The district court concluded that the government had successfully demonstrated a pattern of racketeering activity with respect to each of the four trial defendants. While there is some duplication of the predicate act counts on which they were convicted, not all are the same. All four were convicted of predicate Act 1, drug conspiracy, but they do not challenge the existence of a pattern of racketeering activity with respect to that act. The three Burdens were convicted of Acts 5A and 5B, conspiracy to and attempt to murder members of the Hill Crew. Kelvin and Buchanan were also convicted of Acts 2A and 2C, conspiracy to and attempt to murder Rodrick Richardson; Acts 3A and 3B, conspiracy to and attempt to murder Marque Young; and Act 4, the murder of Derek Owens.
Our review of the record leads us to the same conclusion; sufficient evidence exists to support a finding that each of the four trial defendants was engaged in a pattern of racketeering. We reach this conclusion even though the violent acts in this case are the type of conduct that the defendants could have committed absent a connection to the enterprise. The government advanced four theories of relatedness before the district court, and it repeats them on appeal. The government asserts that the Hill Crew members were significant drug traffickers in the Carlton Court/Hill section of Norwalk and their continued success was inconsistent with the Burden Organization's success. Second, the government points to the genesis of the beef with the Hill Crew as Richardson's failure to pay Prezzie for crack cocaine and Richardson's acts of violence when Prezzie and Buchanan tried to collect the debt. Third, the government asserts that the Lincoln Avenue house served as the intersection of drug activity (storage, preparation, packing, and distribution) and violence (storage of guns and planning violent acts). Finally, the government contends that the relationship between the violence and the Burden Organization's drug trafficking was apparent from evidence that its violent acts increased respect for the Organization in the South Norwalk drug market.
The evidence does not support the theory that the Burden Organization's success in dealing drugs was enhanced by cutting into the sales made by the Hill Crew. While there was testimony that some members of the Hill Crew (including Richardson) dealt crack cocaine, there was no evidence that they were dominant or significant drug dealers.
It is possible, however, to credit the violence that occurred in 1998 between Richardson and Sean Burden, Prezzie, and Buchanan as being the genesis of the two groups' disputes. Shaki Sumpter, a Hill Crew member, owed a drug debt to Prezzie. Sumpter and Richardson decided to rob Prezzie instead of paying him. When they fired shots into the vehicle Prezzie was in they struck Sean Burden, who was also in the vehicle along with Buchanan. These shots were not fatal; Sean was killed in a later incident. The taunts and retaliation began after this incident, however. After Sean was killed, Richardson called Kelvin a coward and chided him for buying an expensive car and going on with his drug business instead of avenging his brother's death. Richardson, in turn, was shot.
With respect to the third theory, the fact that the acts of violence were discussed at the same location where narcotics activity took place does not in and of itself establish vertical relatedness. There was no testimony to the effect that the meetings at the Lincoln Avenue house were used to plan or organize precise acts of violence.
Finally, the government argues that the following testimony from Anthony Burden sufficiently establishes its theory that violence enhanced the level of respect afforded the Burden Organization in the South Norwalk drug market.
Q: Now, you indicated yesterday that between '97 -- well, between '97 and your arrest in 2001, you held a certain position amongst this group, is that accurate?
Q: All right. And did this -- you indicated the group ...