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United States v. Ashburn

United States District Court, E.D. New York

February 11, 2015

UNITED STATES OF AMERICA,
v.
YASSER ASHBURN, JAMAL LAURENT, and TREVELLE MERRITT, Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

I. INTRODUCTION

This Memorandum and Order addresses the Government's Motion in Limine to Admit Evidence of Other Acts. (Mem. in Supp. of Gov't's Mot. to Admit Evid. of Other Acts ("Mot.") (Dkt. 197).) It further addresses a number of motions Defendants have subsequently made in response. For reasons that follow, the Government's motion is GRANTED in part and DENIED in part; Defendants' motions are DENIED, with the exception of Defendant Laurent's motion to further amend a statement that Defendant Merritt made to law enforcement regarding a January 12, 2011, cell phone robbery, which is GRANTED in part and DENIED in part.

A. Background and Indictment

Defendants Yasser Ashburn, Jamal Laurent, and Trevelle Merritt are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation ("Six Tre Folk Nation" or "Six Tre"), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. (Superseding Indictment (S-5)[1] (the "Indictment") (Dkt. 271); Mot. at 3.) According to the Government, Six Tre is part of the Folk Nation, a nationwide gang founded in Chicago, Illinois in the early 1990s. (Id. at 2.) The Government also claims that Six Tre has approximately 20 to 25 identified members, and has been operating in and around the Ebbets Field housing projects ("Ebbets Field") in the Flatbush section of Brooklyn, New York for several years. (Id. at 3.)

The Indictment alleges that during those years, members and associates of Six Tre engaged in several acts of violence, including murder, attempted murder, robbery, and assault. (Indictment ¶ 1.) It further alleges that Six Tre constituted an "enterprise" within the meaning of 18 U.S.C. § 1961(4), and functioned as a continuing unit for a common purpose of achieving certain objectives. (See id. ¶ 2.) These objectives allegedly included: (a) promoting and enhancing its reputation with respect to rival criminal organizations; (b) preserving and protecting its power, territory, and criminal ventures; and (c) enriching its members and associates through criminal activity. (Id. ¶ 3.) According to the Indictment, among the means and methods by which the members and associates of Six Tre conducted its affairs were: (1) using and threating to use physical violence to keep victims and rivals in fear of its members and associates; (2) committing, attempting to commit, and threatening to commit acts of violence, including murder, robbery, and assault, to enhance its prestige and expand its criminal operations; and (3) using, attempting to use, and conspiring to use robbery and narcotics trafficking as a means of obtaining money. (Id. ¶ 4.)

Defendants, in particular, are charged with being directly responsible for-among other crimes-three separate murders and two attempted murders, as well as several robberies of jewelry stores and robberies of individuals solicited via internet marketplaces, between April 2008 and October 2011. (See generally Indictment.) The Indictment charges each Defendant with racketeering (Count One) and racketeering conspiracy (Count Two), on the basis of twelve predicate racketeering acts ("RAs"), and charges each Defendant with the unlawful use of firearms (Count Three) in connection with Counts One and Two. (Id. ¶¶ 7-35.) Defendants are also charged in Counts Four through Fourteen with multiple federal crimes predicated on the same or similar conduct at issue in the racketeering acts.[2] (Id. ¶¶ 36-50.) Both the alleged racketeering acts and the substantive charges arise from eight primary allegations, which the Indictment sets forth as follows.

First, the Indictment alleges that members of Six Tre, including all three Defendants, conspired to murder members of the rival Crips gang in Brooklyn. (Id. ¶ 9 (RA 1: conspiracy to murder).) Second, Defendant Ashburn is charged with shooting and killing Courtney Robinson on April 20, 2008, when a fight broke out between a Six Tre member and another individual during a party held at an apartment in Ebbets Field, which several Six Tre members attended. (Id. ¶¶ 10 (RA 2: murder), 36-37 (Count Four: murder in-aid-of racketeering).) Third, the Indictment alleges that on June 19, 2010, Defendant Laurent shot and killed Brent Duncan because-according to the Government-he thought that Duncan displayed a Crips hand sign at a party the two attended, although none of Duncan's family or friends knew him to have any association with the Crips. (Id. ¶¶ 12 (RA 4: murder), 39-40 (Count Five: murder in-aid-of racketeering); Mot. at 4-5.)

Fourth, on July 7, 2010, after walking by a Crips member (referred to in the Indictment as John Doe #2)[3] on the street, Laurent is alleged to have shot him in the back twice, but the Crips member later recovered from his injuries. (Id. ¶¶ 19 (RA 7: attempted murder), 41-42 (Count Six: assault with a dangerous weapon in-aid-of racketeering), 43 (Count Seven: unlawful use of a firearm); Mot. at 5.) Fifth, the Indictment alleges that Laurent and Merritt conspired to rob Dasta James (also known as "Topes"), who was shot and killed during the course of the robbery on January 28, 2011. (Mot. at 5-6.) According to the Government, after Merritt purchased marijuana from James and stepped away, Laurent pulled out a firearm and demanded that James give him everything in his possession; after James refused and the two fought, Laurent shot James while James was running away and calling for help. (Id.) Only Merritt, however, is explicitly named in the charges associated with James's death.[4] (Indictment ¶¶ 28-31 (RA 12: robbery conspiracy/attempted robbery/murder), 47 (Count Eleven: Hobbs Act robbery conspiracy), 48 (Count Twelve: attempted Hobbs Act robbery), 49 (Count Thirteen: unlawful use of a firearm), 50 (Count Fourteen: causing death through use of a firearm).)

Sixth, Laurent is charged with committing and conspiring to commit "smash-and-grab" robberies of high-end jewelry stores in Manhattan, New Jersey, Connecticut, and Massachusetts between January 2009 and August 2010, during which he and other Six Tre members smashed display cases with a sledgehammer and then grabbed merchandise from the cases. (See Indictment ¶¶ 11 (RA 3: Hobbs Act robbery conspiracy), 44 (Count Eight: Hobbs Act robbery conspiracy); Mot. at 6.) Seventh, the Indictment charges Laurent with committing and conspiring with other members of Six Tre to commit (see Mot. at 6), a series of robberies of individuals solicited over the internet via marketplace websites between June and October 2010. (Indictment ¶¶ 13-15 (RA 5: Hobbs Act robbery conspiracy/state law robbery conspiracy), 16-18 (RA 6: Hobbs Act robbery/state law robbery solicited through Craigslist.com), 20-22 (RA 8: Hobbs Act robbery/state law robbery solicited through website solecollector.com), 23-25 (RA 9: Hobbs Act robbery/state law robbery solicited through Craigslist.com).) Eighth, and finally, [5] the Indictment alleges that Merritt forcibly stole property, including cellphones, a jacket, and United States currency from two unnamed individuals (referred to in the Indictment as John Doe #5 and John Doe #6) on January 12 and January 14, 2011. (Indictment ¶¶ 26 (RA 10: state law robbery), 27 (RA 11: state law robbery).)

B. Motion to Admit Other Acts

On October 3, 2014, the Government filed the instant motion, seeking to introduce evidence of certain crimes and bad acts ("other acts" or "uncharged acts") not detailed in the Indictment ("other acts"). (See Mot.) The Government's proffered evidence of other acts falls into six broad categories.

1. Six Tre Founding and Prior Gang Affiliations

The first category relates to the founding of Six Tre and Defendants' prior gang affiliations. In this respect, the Government submits that a former Six Tre member who is now a cooperating witness (referred to by the Government as "CW-1") will provide testimony regarding the founding of Six Tre by Ashburn and another individual, as well as Ashburn's prior involvement in a local gang referred to as "2 - 1st." (Id. at 7.) CW-1 is also expected to testify that several younger members of Six Tre began their involvement in criminal conduct as members of other gangs, and that in particular, he and Merritt were both members of a gang referred to as "Tre Six." (Id. at 7-8.) The Government further expects that two additional cooperating witnesses (referred to by the Government as "CW-2" and "CW-3"), who were former criminal associates of Laurent, will testify that Laurent was a member of the Crips gang before becoming a Six Tre member. (Id. at 8.)

2. Assaults

The second category of other acts includes a number of assaults allegedly committed by Defendants and other Six Tre members. The Government indicates that CW-1 will testify that assaults were commonly committed by both Six Tre members and other young men seeking membership in the gang. (Id.) CW-1 is expected to testify, for example, that when Ashburn was 18 years old, and already a Six Tre member, Ashburn assaulted a boy (who was approximately 13 or 14 years old) who had spit on him. (Id.) According to CW-1, in the course of the assault-which allegedly took place in front of multiple Ebbets Field residents-Ashburn repeatedly thrust an umbrella into the boy's mouth, causing him to bleed profusely as well as breaking his teeth. (Id. at 8-9.) In addition, the Government expects CW-1 to testify that on another occasion, he witnessed Ashburn, who had been the "clear leader" of the gang, fighting with Devon Rodney, [6] who was ascending within the Six Tre ranks. (Id. at 10.)

CW-1 is also expected to testify that Merritt committed a number of assaults against members of rival gangs as well as members of the public not affiliated with any gang. In particular, CW-1 will testify that when Merritt was 15 years old, he punched and knocked out a member of the Bloods gang at a skating rink. (Id. at 9.) According to CW-1, over the next few years, he and Merritt would sometimes pick out innocent passersby and beat them without provocation. (Id.) CW-1 further maintains that during the summer of 2008, CW-1, Merritt, and other Six Tre members fought with members of a rival Crips set that used the name "Eight Tre." (Id.) CW-1 also alleges that later that year, on approximately October 31, 2008, Merritt and another Six Tre member punched two innocent people on the street, again, without provocation. (Id.)

Furthermore, the Government expects CW-1 to testify about assaults committed by other members of Six Tre against innocent members of the public, in addition to fellow gang members. For example, CW-1 claims that on April 20, 2008, he-along with other Six Tre members- violently assaulted Courtney Robinson shortly before he was shot and killed by Ashburn, as alleged in racketeering act 2 and Count Four of the Indictment. (Id.) CW-1 is also expected to testify that when Six Tre members engaged in conduct disfavored by the gang, they would be beaten by other members of the gang. (Id.)

3. Shootings, Murders, and Murder Conspiracies

The third category of other acts involves evidence of shootings, murders, and murder conspiracies that relate to charged conduct[7] as well as conduct not alleged in the Indictment. For example, although Laurent is not named in racketeering act 12 or Counts Eleven through Fourteen, the Government seeks to introduce evidence of his participation in the robbery and murder of Dasta James through surveillance video, cellphone records, and historical cell-site data. (Id. at 11.) In addition, the Government expects CW-1 to testify regarding a murder committed by an unnamed Six Tre member on August 23, 2008. (Id.) According to CW-1, he was present when a member of the gang reported that he had been robbed, at which point a large group of Six Tre members, which included then-leader Devon Rodney as well as Merritt, set off looking for the perpetrator. (Id.) Later that day, on a rooftop of the Flatbush Gardens apartments, the Six Tre member who had been robbed shot and killed a person referred to by the Government as "KO." (Id.) To corroborate CW-1's testimony, the Government seeks to introduce other evidence related to this murder, including ballistics evidence, [8] photographs, and other records. (Id.)

The Government also expects cooperating witnesses to testify to numerous other shootings by Six Tre members challenging rival gangs. (Id.) The targets of these shootings, which the witnesses either saw themselves or were informed of by other Six Tre members, included an individual known as "Gemini" in August 2008, an individual known as "Windel" in September 2008, and an individual known as "Lorenzo" in December 2008. (Id.) CW-1, in particular, is also expected to testify that Six Tre member Geraldo Elainor[9] shot at members of the Bloods gang at a basement party in the Canarsie section of Brooklyn. (Id.) The Government further expects CW-2 to testify that after the shooting of John Doe #2[10] on July 7, 2010-an act Laurent is charged with committing (see Indictment ¶¶ 19 (RA 7), 41-42 (Count Six), 43 (Count Seven))-Laurent and fellow Six Tre member Ricky Hollenquest[11] later shot at a member of the Crips, "simply because he was a Crip." (Mot. at 11-12.)

4. Sales, Purchases, and Possession of Firearms

According to the Government, the violence committed by Six Tre members was facilitated by the gang's purchase of guns, which are the subject of the fourth category of evidence of other acts. (Id. at 12.) In its motion, the Government explains that it anticipates proving at trial that Six Tre members were often in possession of guns purchased by the gang or by the members themselves. (Id.) Accordingly, the Government expects CW-1 to testify that Six Tre members informed him that fellow Six Tre member Anthony "Coog" Williams would purchase guns "somewhere in the southern United States" and bring them back to New York for use by Six Tre. (Id.) The Government alleges that other guns were purchased for Six Tre from a member of the Crips known as "Nori." It further alleges that these guns were stored in communal locations "where Six Tre members could gain easy access to them when necessary." (Id.) One such location is alleged to be a storage room on the eighth floor of 11 McKeever Place, next to Merritt's apartment; another was in the building at 1700 Bedford Avenue, near the apartment where Courtney Robinson was murdered on April 20, 2008, (id.), a homicide Ashburn is charged with committing. (See Indictment ¶¶ 10, 36-37.)

With respect to individually possessed weapons, the Government expects CW-1 to testify that Ralik Odom kept his own gun, which he stole from a member of a different Folk Nation set. (Mot. at 12.) CW-1 is also expected to testify that Six Tre member "Coog" sold crack cocaine and carried a gun, and that Six Tre member Daniel Harrison[12] kept a gun in his apartment, in addition to selling marijuana and crack cocaine. (Id.) CW-2 is further expected to testify that he observed Laurent store marijuana and guns for Devon Rodney, that Laurent once asked CW-2 to hold a gun for him after the police had visited Laurent's home, and that Laurent told CW-2 that he had given a gun to Ricky Hollenquest when Laurent was incarcerated. (Id. at 12-13.) The Government also expects CW-3 to testify that Laurent "always" carried a gun in his waistband and would sell guns to people in the neighborhood. (Id. at 13.) According to the Government, however, on one occasion an individual named "KB" gave Laurent $300 to purchase a.32 caliber handgun, but Laurent never provided the gun. (Id.)

5. Thefts and Robberies

The fifth category of evidence pertains to thefts and robberies, which the Government expects CW-1 to testify were common among Six Tre members, and "an important way in which gang members earned' money for themselves and the enterprise." (Id.) For example, the Government alleges that Six Tre members robbed jewelry stores and stole credit card numbers. (Id.) CW-1 is also expected to testify that he, Merritt, and other Six Tre members would steal cell phones from people walking down the street and resell them for cash.[13] (Id.) In addition, the Government expects CW-3 to testify that Laurent told him about his involvement in jewelry store robberies, and that Laurent was upset that people were talking about those robberies.[14] (Id.)

6. Narcotics Possession and Sales

Sixth, and finally, the Government seeks to admit evidence that Six Tre members frequently bought and sold drugs to earn money for themselves and for the gang.[15] (Id. at 13-14.) Specifically, the Government expects CW-1 to testify that he and Merritt sold marijuana and sometimes contributed a portion of the proceeds to Six Tre coffers, as did other Six Tre members. (Id. at 14.) CW-2 is also expected to testify that Laurent sold marijuana and was sometimes in possession of large quantities of the drug. As an example, the Government expects CW-2 to testify that sometime in 2010, he observed Devon Rodney and Laurent with multiple pounds of marijuana, two or three firearms, and "a couple thousand dollars" in cash at Laurent's mother's home. (Id.) CW-2 will further testify that Laurent reported to him that the money and marijuana belonged to Laurent. (Id.)

C. Parties' Arguments

The Government argues that evidence regarding the other acts described above is admissible as direct proof of the racketeering enterprise alleged in the Indictment. (Mot. at 15-19.) It submits that this evidence may also be admitted on the grounds that it is "inextricably intertwined" with evidence of charged crimes, insofar as it provides "evidentiary richness" and "narrative integrity" critical in enabling the Government to prove how Six Tre established a presence in Flatbush, how Six Tre operated as an enterprise to achieve its objectives, and how each defendant came to be member of the enterprise. (Id. at 19-21.) As a result, the Government contends, this evidence does not constitute "crime[s], wrong[s], or other act[s]" within the meaning of Federal Rule of Evidence 404(b). (Id. at 14.) In the alternative, the Government maintains that even if the court determines that this evidence is not admissible as direct proof or "inextricably intertwined" with such proof, these other acts are admissible under Rule 404(b) to show knowledge, intent, and the absence of mistake. (Id. at 21-28.) Finally, the Government asserts that the probative value of this evidence, on any basis by which it is admitted, is not substantially outweighed by its prejudicial effect under Federal Rule of Evidence 403. (Id. at 28-29.)

Merritt responded to the Government's motion on November 5, 2014, in a brief letter asserting that this evidence is "the stuff of rumor and innuendo, " none of which was contained in the Third Superseding Indictment, and which constitutes only proof of propensity. (Nov. 5, 2014, Def. Merritt's Ltr. (Dkt. 216).) On November 7, 2014, Ashburn filed a separate response in opposition to the Government's motion, arguing that the evidence to be introduced against him, in particular (his alleged prior gang membership and umbrella assault), is "too old to be relevant, " propensity evidence, or sensational and disturbing and thus unduly prejudicial under Rule 403. (See Aff. of Jeremy F. Orden in Opp'n to Mot. in Limine Under Fed.R.Evid. Rule 404(b) ("Orden Aff.") (Dkt. 220) at 4, 11, 16.) Merritt and Ashburn also join their codefendants' responses, to the extent those responses apply. (See Def. Merritt's Ltr.; Orden Aff. at 17.)

Laurent also filed a response in opposition to the Government's motion on November 7, 2014.[16] (Def. Laurent's Mem. of Law in Resp. and in Opp'n to Gov't's Mot. to Intro. Prior Bad Acts Under Fed.R.Evid. 404(b) ("Def.'s Resp.") (Dkt. 222).) In general, Laurent disputes the Government's contention that evidence related to these other acts is relevant for a proper purpose other than his bad character. (See id. at 12-18.) Laurent also argues that the probative value of this evidence is substantially outweighed by its cumulative, prejudicial, and confusing nature. (See id.) In support, Laurent points out that several of the other acts took place before he is alleged to have joined the conspiracy, "in or about" 2010. (See id. at 21-23; Indictment ¶ 6.) As a result, if the court grants the Government's motion, Laurent insists that his trial should be severed. (Id. at 20-21.) Notably, Ashburn also requests that he be permitted to make an application for severance in the event this evidence is admitted. (Orden Aff. at 17.)

The Government replied to Defendants' responses on November 21, 2014. (Gov't Reply (Dkt. 230).) On December 1, 2014, Laurent filed a sur-reply in further opposition to the Government's motion. (Sur-Reply in Further Opp'n to the Gov't Reply ("Def.'s Sur-Reply") (Dkt. 233).) In his sur-reply, Laurent emphasizes his objection to the admission of evidence related to the armed robbery the Government alleges he committed on March 21, 2011, (id. at 4-5), his possession of narcotics (id. at 5), and a statement made by Merritt concerning the cellphone robbery Merritt is charged with committing on January 12, 2011, (id. at 5-9). Laurent also renews his motion for a severance.[17] (Id. at 9-10.)

On January 13, 2015, Laurent supplemented his sur-reply with a letter that further emphasizes his severance motion and argues that the Government's proposed redactions to Merritt's statement regarding the January 12, 2011, cellphone robbery should be further amended, if admitted at all. (Jan. 13, 2015, Def.'s Ltr. (Dkt. 266).) The Government filed a response (Jan. 14, 2015, Gov't's Resp. Ltr. (Dkt. 267)), to which Laurent replied (Jan. 16, 2015, Def.'s Reply Ltr. (275)).

In the discussion that follows, the court first considers the admissibility of the Government's other acts evidence. Next, the court addresses Defendants' other motions with respect to Merritt's statement regarding the January 12, 2011, robbery.

II. GOVERNMENT'S MOTION TO ADMIT EVIDENCE OF OTHER ACTS

As the court explained above, the Government moves to admit other acts that it contends constitute evidence of: (1) the founding of Six Tre; (2) assaults committed by Six Tre members; (3) shootings, murders, and murder conspiracies; (4) Six Tre members' sales, purchases, and possession of firearms; (5) thefts and robberies committed by Six Tre members; and (6) Six Tre members' narcotics possession and sales. The court proceeds by first evaluating whether any of these other acts may be admitted as direct evidence on grounds other than Rule 404(b). Next, after considering the relevant basis for admitting each specific uncharged act, the court then discusses the extent to which any other acts evidence-while admissible at trial-should nonetheless be excluded under Federal Rules of Evidence 401 and 402, or 403. Lastly, the court addresses Defendants' renewed joint motion for severance in the event these other acts are admitted.

A. Other Acts Admissible as Direct Evidence

The Government contends that evidence with respect to the other acts is admissible on three possible grounds: (1) as direct evidence of an illegal enterprise under the Racketeering Influenced Corrupt Organizations ("RICO") Act; (2) as evidence that is inextricably intertwined with direct evidence of the charged crimes; and (3) as evidence admissible pursuant to Federal Rule of Evidence 404(b). Since the court ultimately concludes that any evidence admissible at trial may be introduced as either direct evidence or as "inextricably intertwined" evidence, the court declines to address whether these acts are also admissible under Rule 404(b).

1. Legal Standards

As the following discussion illustrates, other acts within a given category of evidence may be admissible as either direct or inextricably intertwined evidence, or as both. Consequently, the court outlines the legal standards governing the admission of evidence on both grounds before applying these principles to the Government's proffered evidence, by category.

a. RICO Cases Generally

The Indictment charges each defendant with racketeering and racketeering conspiracy, in violation of 18 U.S.C. § 1962(c) and (d). Under this section of the RICO Act, it is a substantive criminal offense "for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). The statute also makes it unlawful "for any person to conspire to violate any of the provisions of subsection... (c) of this section." Id. § 1962(d); see United States v. Pizzonia, 577 F.3d 455, 462 (2d Cir. 2009). To establish a defendant's liability for substantive racketeering under § 1962(c), the Government is required to prove beyond a reasonable doubt: (1) the existence of an enterprise; (2) that the enterprise affects interstate commerce; (3) the defendant associated with the enterprise; and (4) the defendant conducted or participated, directly or indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c). To obtain a conviction for RICO conspiracy under § 1962(d), the Government must prove that the defendant (1) agreed with others (2) to conduct the affairs of the enterprise (3) through a pattern of racketeering activity. See, e.g., United States v. Basciano, 599 F.3d 184, 199 (2d Cir. 2010) (citing Pizzonia, 577 F.3d at 462).

A RICO conspiracy, however, "is never simply an agreement to commit specified predicate acts that allegedly form a pattern of racketeering. Nor is it merely an agreement to join a particular enterprise. Rather, it is an agreement to conduct or to participate in the conduct of a charged enterprise's affairs through a pattern of racketeering." Pizzonia, 577 F.3d at 464 (emphasis in original). For substantive racketeering as well, "[a]lthough no less than two predicate acts must be committed-or, in the case of RICO conspiracy, agreed to-to demonstrate a pattern of racketeering, in the end, it is not the number of predicates proved but, rather, the relationship that they bear to each other or to some external organizing principle that indicates whether they manifest the continuity required to prove a pattern." Id. at 465 (citation and internal quotation marks omitted). This is because "it is neither the enterprise standing alone nor the pattern of racketeering activity by itself which RICO criminalizes, ' but [r]ather, the combination of these two elements.'" Id. at 463 (quoting United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983)).

Thus, the Second Circuit has explained that "proof of the enterprise and pattern elements of racketeering may well entail evidence of numerous criminal acts by a variety of persons.'" Basciano, 599 F.3d at 207 (quoting United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992)). In particular, where a single pattern of racketeering is alleged to be common to a number of defendants, "even though individual defendants may reasonably claim no direct participation' in the acts of others, evidence of those acts is relevant to the RICO charges against each defendant.'" Id. at 207 (quoting DiNome, 954 F.2d at 843). "Specifically, the various criminal activities' of racketeering confederates are admissible against each defendant to prove: (i) the existence and nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part of each defendant by providing the requisite relationship and continuity of illegal activities.'" Id. at 207 (quoting DiNome, 954 F.2d at 844). As the Second Circuit has pointed out, "[c]ommon sense suggests 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) (emphasis in original) (internal quotation marks omitted).

b. Enterprise Evidence

Not only are the acts of others relevant to the RICO charges against each defendant, but these acts need not be charged in the indictment to be admissible. In fact, "it is well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise." United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (per curiam); see also United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008) ("Where, as here, the existence of a racketeering enterprise is at issue, evidence of uncharged crimes committed by members of that enterprise, including evidence of uncharged crimes committed by the defendants themselves, is admissible to prove an essential element of the RICO crimes charged-the existence of a criminal enterprise in which the defendants participated.'" (quoting United States v. Matera, 489 F.3d 115, 120 (2d Cir. 2007))). Moreover, where defendants are charged with racketeering conspiracy, "uncharged acts may be admissible as direct evidence of the conspiracy itself.'" Baez, 349 F.3d at 93 (quoting United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994)). Under these circumstances, "the admission of evidence of uncharged criminal activity is not considered other-crimes evidence subject to Federal Rule of Evidence 404(b)." Id. at 93-94. In other words, "[a]n act that is alleged to have been done in furtherance of the alleged conspiracy... is not an other act' within the meaning of Rule 404(b); rather, it is part of the very act charged." Thai, 29 F.3d at 812 (quoting United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992) (internal quotation marks omitted)).

Accordingly, in Matera, where defendants were tried on charges of racketeering and racketeering conspiracy in connection with their alleged participation in the Gambino organized crime family, the Second Circuit affirmed the district court's admission of various crimes committed by Gambino family members, including a non-defendant's participation in three uncharged murders. See 489 F.3d at 120 (finding no abuse of discretion under Rule 403). The court reasoned that this evidence was offered "to prove an essential element of the RICO crimes charged-the existence of a criminal enterprise in which the defendants participated." Id. Moreover, the court found the district judge's decision to be "consistent with numerous prior rulings of this court in which criminal acts of non-defendants, including killings, were received to prove the existence of the criminal RICO enterprise in which the defendant participated." Id. (citing United States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997) (evidence of "numerous killings" by defendant and other gang members of victims considered to be threats to the gang's operations admissible as proof of the existence of the RICO enterprise alleged to have used such acts of violence in ...


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