13‐3687‐cr (L) United States v. Pierce

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Argued: October 17, 2014 Decided: May 11, 2015)

Docket Nos. 13‐3687‐cr, 13‐3930‐cr, 13‐3936‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

EARL PIERCE, aka Sealed Defendant 3, aka Skeet Box, MELVIN COLON, aka Sealed Defendant 2, aka Melly, JOSHUA MEREGILDO, aka Sealed Defendant 1, aka Killa,

Defendants‐Appellants,

NOLBERT MIRANDA, aka Sealed Defendant 4, aka PayDay, LEBITHAN GUZMAN, aka Sealed Defendant 5, aka Levi, AUBREY PEMBERTON, aka Sealed Defendant 6, aka Au, FELIPE BLANDING, aka Sealed Defendant 7, aka Hump, JAVON JONES, aka Sealed Defendant 8, aka Capo, DANTE BARBER, aka Sealed Defendant 9, aka Tay, NATHANIEL FLUDD, aka Juntao, ORFELINA BRITO, aka Becky, KEVIN PINERO, aka SB, TOSHNELLE FOSTER, aka Tosh, BERNARD FOLKS, aka Akon, HASSEN BRITO, aka 12, ENRIQUE BRITO, aka 13, WALTER APONTE,

Defendants.*

The Clerk of Court is respectfully requested to amend the caption *

as set forth above. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: KEARSE, WESLEY, AND CHIN, Circuit Judges.

Appeals from judgments of the United States District Court for the

Southern District of New York (Pauley, J.), convicting defendants‐appellants of,

inter alia, conspiracy, racketeering, murder, narcotics trafficking, and firearms

offenses. Defendants‐appellants raise several issues on appeal: the sufficiency of

the evidence, the admissibility of a rap video and images of tattoos posted on a

defendantʹs Facebook page, the constitutionality of certain sections of the Stored

Communications Act, 18 U.S.C. §§ 2702‐2703, the propriety of certain of the

district courtʹs jury instructions, and whether the rule of lenity applies to the

district courtʹs sequencing of sentences on multiple firearms convictions.

AFFIRMED in part and REMANDED in part.

____________________________

NOLA B. HELLER, Assistant United States Attorney (Adam Fee, Santosh Aravind, Brian A. Jacobs, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern

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District of New York, New York, NY, for Appellee.

GWEN M. SCHOENFELD, Law Office of Gwen M. Schoenfeld, LLC, New York, NY, for Defendant‐Appellant Earl Pierce.

MITCHELL DINNERSTEIN, New York, NY, for Defendant‐Appellant Melvin Colon.

YING STAFFORD, New York, NY, for Defendant‐ Appellant Joshua Meregildo. ____________________________

CHIN, Circuit Judge:

Defendants‐appellants Earl Pierce, Melvin Colon, and Joshua

Meregildo appeal from judgments of conviction entered in the United States

District Court for the Southern District of New York (Pauley, J.) on September 25,

2013, following a jury trial at which they were found guilty of, inter alia,

conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses.

The district court sentenced Pierce principally to 600 monthsʹ imprisonment,

Colon principally to life plus 420 monthsʹ imprisonment, and Meregildo

principally to life plus 60 monthsʹ imprisonment.

Defendants raise the following issues on appeal: the sufficiency of

the evidence as to certain counts, the admissibility of a rap video and images of

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tattoos posted on a defendantʹs Facebook page, the constitutionality of certain

sections of the Stored Communications Act, 18 U.S.C. §§ 2702‐2703 (the ʺSCAʺ),

the propriety of certain of the district courtʹs jury instructions, and whether the

rule of lenity applies to the district courtʹs sequencing of sentences on multiple

firearms convictions under

(c).

We affirm the district court in all respects, with one exception. We

remand for resentencing with respect to Pierceʹs firearms convictions, in

accordance with the rule of lenity.

STATEMENT OF THE CASE

A. Summary of the Facts

Viewed in the light most favorable to the government, United States

v. Vitale,

(2d Cir. 2006), the evidence established the following:

Pierce, Colon, and Meregildo were members of a violent street gang,

dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government, that engaged

in the trafficking of crack cocaine, heroin, and marijuana in and around the

Melrose Public Housing Developments and the Andrew Jackson Houses (the

ʺMelrose‐Jackson Housesʺ) in the Melrose section of the Bronx. CAC was formed

in 2010 by Terry Harrison, who recruited young men around the Melrose‐

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Jackson Houses to sell drugs, many of whom ‐‐ including Meregildo and Colon ‐‐

were already members of another gang, known as Godʹs Favorite Children, or

ʺGFC.ʺ

Harrison was shot and killed in 2010 by an individual working for

the rival ʺ321 Organization.ʺ After Harrisonʹs murder, Meregildo assumed a

leadership role in CAC, providing crack cocaine to the street dealers until he was

arrested in January 2011. After Meregildo was arrested, Colon took over some of

the narcotics operations, supplying crack cocaine to members of CAC as well as

to its customers. Colon was arrested on the current charges in September 2011.

In addition to their involvement in the extensive narcotics sales, Pierce,

Meregildo, and Colon also actively participated in violence perpetrated against

rival gangs and suspected law enforcement informants on behalf of CAC.

B. The Proceedings Below

Pierce, Colon, and Meregildo were charged along with more than a

dozen other alleged members and associates of CAC, in an indictment filed June

4, 2012. The two‐month trial commenced on October 1, 2012.

As part of its case‐in‐chief, the government called forty witnesses,

including six cooperating witnesses. Five of the cooperating witnesses were

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former members of CAC who testified about the participation of Pierce,

Meregildo, and Colon in the narcotics trafficking and violence. The government

also offered physical evidence, including seized drugs, drug paraphernalia, and

firearms used in the commission of the murders.

Additionally, the government introduced into evidence social media

posts by members of CAC, which alluded to the narcotics sales and violent acts,

including a rap video from Colonʹs Facebook page and photographs of his

tattoos.

The district court charged the jury on November 28, 2012. The

district court delivered an uncalled witness instruction, without making the

modifications Meregildo had requested in the charge conference. The jury began

its deliberations. The next day, November 29, the jury sent the court a note

asking ʺ[a]s related to [Count Fifteen],1 is the conspiracy limited to the Courtlandt

Avenue [C]rew? Or working together or in concert with the Courtlandt Avenue

Crew?ʺ Trial Transcript (ʺTr.ʺ) 6462. After hearing from both parties on the

appropriate response, the district court instructed the jury ‐‐ over defense

1 The government redacted the indictment at trial and renumbered the remaining counts in the verdict sheet to remove those counts in which the defendants were not charged. We refer here to the counts as they appear in the non‐ redacted indictment. ‐ 6 ‐

objections ‐‐ that Count Fifteen ʺdoes not allege that membership in the narcotics

conspiracy requires membership in the Courtlandt Avenue Crew.ʺ

On December 4, 2012, the jury returned guilty verdicts against the

defendants on multiple counts. All three defendants were convicted of

racketeering (Count One), racketeering conspiracy (Count Two), conspiracy to

distribute narcotics (Count Fifteen), and possession of a firearm in furtherance of

a drug‐trafficking offense (Count Twenty‐Eight).

Pierce was also convicted of conspiracy to murder in aid of

racketeering (Count Three), a crime of violence in aid of racketeering (Count

Eleven), and discharging a firearm in furtherance of a crime of violence (Count

Twenty‐Four). Colon was also convicted of, inter alia, conspiracy to murder and

murder in aid of racketeering (Counts Seven, Eight, and Twelve), assault and

attempted murder in aid of racketeering (Count Fourteen), and murder in

connection with a drug‐trafficking offense (Count Eighteen). Meregildo was also

convicted of, inter alia, conspiracy to murder and murder in aid of racketeering

(Counts Five and Six), and murder in connection with a drug‐trafficking offense

(Count Seventeen).

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All three defendants moved for judgments of acquittal and a new

trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure.

Their motions were denied, and defendants were sentenced as set forth above.

These appeals followed.

DISCUSSION

Defendants present the following issues on appeal: (a) the

sufficiency of the evidence with respect to certain counts as to Meregildo and

Colon; (b) the admissibility of video and tattoo evidence as to Colon; (c) the

constitutionality of the SCA as applied to Colon; (d) the propriety of certain of

the district courtʹs jury instructions as to all three defendants; and (e) the

calculation of Pierceʹs sentence.

A. Sufficiency of the Evidence

We review challenges to the sufficiency of evidence de novo. United

States v. Harvey,

(2d Cir. 2014) (per curiam). A defendant ʺbears a

heavy burdenʺ because ʺwe view the evidence in the light most favorable to the

government, drawing all inferences in the governmentʹs favor and deferring to

the juryʹs assessments of the witnessesʹ credibility.ʺ

(internal quotation marks

omitted). We will sustain the juryʹs verdict if ʺany rational trier of fact could have

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found the essential elements of the crime beyond a reasonable doubt.ʺ Jackson v.

Virginia,

(1979) (emphasis in original).

1. Meregildo

Meregildo challenges the sufficiency of the evidence with respect to

whether: CAC was an association‐in‐fact enterprise as contemplated by RICO; he

was a part of the alleged narcotics conspiracy; he was involved in the murder of

Carrel Ogarro; and Ogarroʹs murder was in furtherance of the RICO enterprise or

for pecuniary gain.

The thrust of Meregildoʹs principal argument is that the evidence at

trial established merely random acts of violence in the vicinity of the Melrose‐

Jackson Houses, rather than ʺthe organization, continuity, structure or intent of

an ʹenterpriseʹ as intended under RICO.ʺ Meregildo Brief (ʺBr.ʺ) 38. Specifically,

he argues that the government failed to prove that CAC had the requisite

hierarchy to satisfy the enterprise element of RICO; CAC lacked sufficient

longevity to pursue the enterpriseʹs purpose; and the government failed to

establish the separate existence of an enterprise as something distinct from the

predicate acts. These arguments fail, both legally and factually.

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First, as a matter of law, the requirements for proving a racketeering

enterprise are not so rigid as Meregildo contends. As the Supreme Court noted

in Boyle v. United States, ʺan association‐in‐fact enterprise is simply a continuing

unit that functions with a common purpose. Such a group need not have a

hierarchical structure or a ʹchain of command.ʹʺ

(2009).

Moreover, there is no hard‐and‐fast time period for satisfaction of the longevity

prong. ʺContinuity 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 repetitionʺ H.J. Inc. v. Nw. Bell Tel. Co.,

(1989) (internal quotation marks omitted). Finally, ʺthe evidence used to

prove the pattern of racketeering activity and the evidence establishing an

enterprise ʹmay in particular cases coalesce.ʹʺ Boyle,

(quoting

United States v. Turkette,

(1981)).

Second, as a factual matter, the evidence was sufficient to establish

that CAC was an enterprise. A cooperating witness testified that the crew had

guns ʺ[t]o protect us from our beefs, our problems with other neighborhoods and

other crews.ʺ Tr. 637. Related testimony established that the crew had a base of

operations on Courtlandt Avenue near the Melrose‐Jackson Houses, members

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had tattoos and signs that signified their membership, and numerous crimes

were committed by CAC members in furtherance of the enterprise, including the

murders of Jason Correa, Carrel Ogarro, and Delquan Alston. The evidence was

sufficient to permit a rational juror to infer that Harrison and the other members

of the crew ʺjoined in the shared purpose of selling drugs and promoting such

sales.ʺ United States v. Burden,

(2d Cir. 2010). Hence, the

governmentʹs evidence established that CAC was a continuing unit that

functioned with a common purpose: the illicit sale of narcotics in and around the

Melrose‐Jackson Houses.

We conclude further that sufficient evidence was presented at trial

to show that Meregildo was a participant in the alleged narcotics conspiracy.

Four cooperating witnesses, for example, testified that they had purchased

marijuana from Meregildo, and two of them testified that they observed

Meregildo receiving marijuana from Harrison. One of the cooperating witnesses

testified that Meregildo supplied him, as well as other GFC members, with crack

cocaine to sell, and that Meregildo assumed a leadership role in the narcotics

conspiracy after Harrisonʹs murder. Another cooperating witness testified that

Meregildo gave him bags of crack cocaine for distribution on multiple occasions.

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And a third cooperating witness testified that after Harrisonʹs death he observed

Meregildo breaking up pieces of crack cocaine and packaging it in small baggies.

The trial testimony of these primary cooperating witnesses was sufficient to

establish that Meregildo ʺknew of the existence of the scheme alleged in the

indictment and knowingly joined and participated in it.ʺ United States v. Rahman,

(2d Cir. 1999) (internal quotation marks omitted).

Finally, Meregildo contends that the evidence was insufficient to

prove that he murdered and conspired to murder Carrel Ogarro or that he did so

in aid of the enterprise or for pecuniary gain. Meregildo points to evidence that

Ogarro was in fact murdered by the cooperating witness Devin Parsons, possibly

because of a personal problem Ogarro was having with Walter Aponte. Parsons,

however, testified that Meregildo shot Ogarro at Harrisonʹs direction, due to

Harrisonʹs suspicion that Ogarro was ʺsnitchingʺ with regards to CACʹs

activities. Tr. 2301. Parsons described how, in July 2010, he, Meregildo, and

Aponte waited for Ogarro near the Melrose‐Jackson Houses basketball court, and

how he and Meregildo both fired their guns at Ogarro, hitting him repeatedly.

He also testified that Harrison promised Meregildo and Parsons $5,000 to kill

Ogarro.

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Meregildo argues that Parsonsʹ testimony was contradicted by

forensic evidence and other testimony. But the jury could have reasonably

rejected Meregildoʹs contentions and accepted the governmentʹs proof, and

apparently it did so. Thus, the evidence was sufficient to permit the inference

that Meregildo was a member of the alleged narcotics conspiracy and that he

participated in the murder of Ogarro in aid of the CAC enterprise.

2. Colon

Colon argues that the evidence presented at trial was insufficient for

the jury to find him guilty of murdering Delquan Alston while engaged in the

narcotics conspiracy, in violation of

(e)(1)(A), though Colon does

not challenge the sufficiency of the evidence with respect to his committing the

underlying murder.

We have held that Section 848(e)(1)(A) liability does not require

active involvement in drug distribution. United States v. Santos,

(2d Cir. 2008) (ʺThat [the defendant] did not participate in the narcotics

conspiracy in some way other than carrying out the murders does not undermine

the sufficiency of the evidence that he was a co‐conspirator.ʺ). ʺ[T]he

government need only prove beyond a reasonable doubt that one motive for the

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killing . . . was related to the drug conspiracy.ʺ United States v. Desinor,

(2d Cir. 2008) (emphasis in original).

Parsons testified that on August 27, 2010, he and Colon shot and

killed Alston. Parsons was at a restaurant in the Bronx with Harrison and Colon

when Harrison told Colon that Alston was selling fake crack cocaine to CAC

customers, and that Alston was rumored to be a law enforcement informant.

Harrison asked Colon and Parsons to kill Alston, promising to pay them. On the

night of the murder, Colon, Parsons, and Alston sat on a bench and talked near a

Courtlandt Avenue apartment building. Parsons asked Alston to go buy some

rolling paper for marijuana. Parsons and Colon followed him as he walked to

the store. On the way, Alston stopped to urinate against the wall of a building.

When he turned back around, Colon shot him in the head with a .40 caliber pistol

that Parsons had given to him.

Though Colon does not dispute that he murdered Alston, he points

to testimony by a government witness that he told someone he met in pretrial

detention that he killed Alston not as part of a contract murder, but because

Alston threatened to kill one of Colonʹs friends. Colon also contends that he

could not have been a part of the narcotics conspiracy because he was released

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from juvenile detention only a month before Harrisonʹs death, and that he was

selling drugs independently from CAC, and often in direct competition with

CAC. At trial, however, the government presented contrary evidence, including

the evidence described above that Colon killed Alston at Harrisonʹs request

because Alstonʹs actions were threatening CACʹs narcotics activity. Hence, the

jury could have rationally inferred that Colon had the requisite intent to commit

the murder in aid of the drug trafficking conspiracy. See Santos,

.

B. The Video and Tattoo Evidence

Colon contends that his First Amendment rights were violated when

the district court permitted the government to present as evidence a rap video

and images of his tattoos, some of which he had posted to his Facebook page.

Though we ordinarily review evidentiary rulings for abuse of discretion, because

Colon failed to raise these objections at trial we review the admission of this

evidence for plain error. See United States v. Fell,

(2d Cir. 2008).

The district court admitted into evidence a video that was made in

December 2011 in the Melrose‐Jackson Houses and depicted Colon, a

cooperating witness Aubrey Pemberton, and a number of GFC members. In the

video, Colon is seen rapping: ʺYG to OG / Somebody make somebody nose bleed

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/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ Tr. 2134‐36. At trial, Pemberton

served as a guide through the lyrics, testifying that the Young Gunnaz crew, or

YG, was feuding with the OG (formerly the GFC). The video helped establish

Colonʹs association with members of the enterprise and his motive to participate

in the charged conduct against members of the Young Gunnaz.

The district court also allowed the government to offer photographs

of Colonʹs tattoos, some of which he had posted on his Facebook page. One of

the photographs was a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo,

which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is

pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his

desire to harm members of the Young Gunnaz. Other tattoos depicted in the

photographs introduced at trial included one on his right arm that read

ʺCourtlandtʺ; tattoos on his left arm that referenced Meregildoʹs nicknames

(ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring

to Harrison, the former leader of CAC.

Colon argues that the admission of the rap video and tattoo images

violated his First Amendment rights because courts should not ʺsustain a

conviction that may have rested on a form of expression, however distasteful,

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which the Constitution tolerates and protects.ʺ Street v. New York,

(1969). This challenge is meritless, however, because here the speech is not

ʺitself the proscribed conduct.ʺ United States v. Caronia,

(2d Cir.

2012). The speech was not the basis for the prosecution, but instead it was used

to establish the existence of, and Colonʹs participation in, the alleged RICO

enterprise. See Wisconsin v. Mitchell,

(1993) (ʺThe First

Amendment . . . does not prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.ʺ); United States v. Salameh,

(2d Cir. 1998) (per curiam).

Colon also argues that the rap lyrics were merely ʺfictional artistic

expressionsʺ and ʺperverse pufferyʺ that should not have been admitted against

him. Indeed, in State v. Skinner, the New Jersey Supreme Court recently

overturned a conviction where the stateʹs case at trial relied heavily on violent

rap lyrics, as the court observed that ʺ[o]ne would not presume that Bob Marley,

who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ

(2014). Rap lyrics and tattoos are properly admitted, however,

where they are relevant and their probative value is not substantially

outweighed by the danger of unfair prejudice. See United States v. Moore, 639

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F.3d 443, 447‐48 (8th Cir. 2011) (affirming admission of profane and violent rap

recordings over Fed. R. Evid. 403 challenge where lyrics were probative of

defendantʹs participation in narcotics conspiracy); United States v. Belfast,

(11th Cir. 2010) (holding that rap lyrics were relevant and their probative

value not substantially outweighed by any unfair prejudice in case where lyrics

were used to show that defendant was associated with his father Charles Taylorʹs

Anti‐Terrorism Unit, which tortured Sierra Leoneans in Liberia).

The government proffered the rap video to show Colonʹs animosity

toward the Young Gunnaz, as well as his association with CAC. The

government similarly offered the tattoo evidence to help establish his motive for

violence against the Young Gunnaz, and to show his loyalty to Harrison and

Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap

video and tattoos were relevant, their probative value was not outweighed by

the danger of unfair prejudice, and Colonʹs First Amendment rights were not

implicated when the district court admitted the evidence from his social media

account.

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C. The Stored Communications Act

Colon submits that, as applied to him, the SCA is unconstitutional

because it provides a mechanism for the government to obtain stored content,

without a comparable mechanism for criminal defendants to do so. See

. Colon claims that the SCA prohibited him from subpoenaing Facebook

for page content, thereby denying him his Fifth Amendment due process right to

present evidence and his Sixth Amendment right to confront adverse witnesses.

We review a constitutional challenge to a statute de novo. United

States v. Pettus,

(2d Cir. 2002). Section 2703(c)(1) of the SCA

provides:

A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) . . . .

(c)(1). The government may obtain this information through,

inter alia, a warrant, consent of the subscriber or customer, or through a court

order in circumstances where the government offers ʺspecific and articulable

facts showing that there are reasonable grounds to believe that the contents . . .

are relevant and material to an ongoing criminal investigation.ʺ

§ 2703(c)(1)‐

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2703(d). The SCA does not, on its face, permit a defendant to obtain such

content.2

The instant challenge stems from the governmentʹs receipt of posts

from the Facebook account of Devin Parsons (the ʺParsons Accountʺ). Although

Parsons was incarcerated at the time, he was relaying messages to a friend who

would post them to Facebook for him, and later began to post messages himself

from a contraband cell phone. In one post, Parsons stated that he was ʺtellin onʺ

certain individuals from the ʺbxʺ but ʺnot tellin on nobody from HARLEM.ʺ

Appendix (ʺApp.ʺ) 486. On September 12, 2012, before trial commenced, Colon

sent a subpoena to Facebook seeking the contents of the Parsons Account. On

September 20, 2012, Facebook moved to quash the subpoena on the grounds that

the SCA does not allow private parties to obtain content from service providers,

and that the appropriate method for obtaining such content was to subpoena a

user directly. On October 4, 2012, the district court granted Facebookʹs motion to

quash.

The government points to other statutes and rules that similarly 2

provide for one‐sided access. For example, the search warrant provisions of Fed. R. Crim. P. 41(b) and the wiretap application provisions of

(1) both provide a means for the government to obtain evidence without a mechanism for defendants to do so.

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On October 16, 2012, counsel for Colon notified the district court and

the government that he had received the contents of the Parsons Account

through the work of a private investigator. Colonʹs counsel made use of the

Parsons Account at trial, cross‐examining Parsons about the substance of the

postings, and introducing a portion of the Parsons Account into evidence.

Finally, in a letter dated February 5, 2013, Colon disputed that he had the

complete Parsons Account because he ʺhad no way of knowing whether or not

the Facebook records that [he] had for Parsons were complete.ʺ App. 503‐04.

We have not previously addressed the question of the

constitutionality of the SCA, and we need not do so now. Colon possessed the

very contents he claims the SCA prevented him from obtaining, and his

suggestion that there could have been additional relevant exculpatory material in

the Parsons Account is purely speculative. He has made no showing as to what

else the Parsons Account might have contained, or how it might have been

helpful to him. Moreover, he failed to subpoena Parsons and the individual who

created the account in his name, the two direct potential sources for the contents

of the account. Colon, therefore, has not shown any injury from the statute. We

reject this claim.

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D. The Jury Instructions

Two aspects of the district courtʹs instructions to the jury are

challenged: (1) the uncalled witness charge, and (2) the supplemental instruction

regarding the narcotics conspiracy.

1. The Uncalled Witness Charge

Meregildo contends that his right to present a defense was infringed

when the district court instructed the jury not to draw inferences against either

party with respect to uncalled witnesses.

On the ninth day of trial, the government stated in open court but

outside the presence of the jury that it planned to call cooperating witness Walter

Aponte the next day as part of its case‐in‐chief. The next day of trial, however,

again in open court but outside the presence of the jury, the government stated

that it would not, in fact, be calling Aponte. Neither the government nor any of

the defendants called Aponte to testify at trial.

Judge Pauley proposed to give his standard ʺuncalled witnessesʺ

charge to the jury:

You may have heard the names of certain people during the course of the trial who did not testify. I instruct you that each party had an equal opportunity, or lack of opportunity, to call any of these witnesses.

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Therefore, you should not draw any inferences or reach any conclusions as to what they would have testified had they been called. Their absence should not affect your judgment in any way. I remind you that the law does not impose on a defendant the burden or duty of calling any witnesses or producing any evidence.

App. 3256. Meregildo objected, initially on the grounds that he did not have an

ʺequal opportunityʺ to call Aponte. Tr. 5608‐09. Judge Pauley overruled

Meregildoʹs objection, finding that Aponte was equally available to both parties

because Meregildo ʺcould have issued a subpoena,ʺ and Aponte was detained

ʺright across the street.ʺ

The next day of trial, Meregildoʹs counsel conceded that he had an

equal opportunity to call Aponte, but objected to the proposed language of the

uncalled witness charge on the grounds that the jury should at least be permitted

‐‐ if not required ‐‐ to draw an adverse inference against the government based

on its sudden failure to call Aponte at trial. Judge Pauley reiterated that

Meregildo could make arguments regarding Aponteʹs absence to the jury, and in

summation Meregildoʹs counsel did in fact argue that Aponte had been the one

responsible for Ogarroʹs murder but that ʺweʹll never know because a

cooperating witness, Mr. Walter Aponte, was never here.ʺ Tr. 6017. Over

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Meregildoʹs objections, Judge Pauley ultimately delivered the uncalled witness

charge as proposed.

Meregildo contends that, instead of giving an uncalled witness

charge, which permits no inferences, the district court should have given a

missing witness charge, which ʺinvites the jury to draw an adverse inference

against a party that fails to call a witness whose production . . . is peculiarly

within [that partyʹs] power.ʺ United States v. Gaskin,

(2d Cir.

2004) (internal quotation marks omitted); compare 1 Leonard B. Sand, et al.,

Modern Federal Jury Instructions ¶ 6.04, at 6‐5 (rev. 2011) (ʺMissing Witness Not

Equally Available to Defendantʺ), with

at 6‐7 (ʺUncalled Witness Equally

Availableʺ). ʺWe review a district courtʹs refusal to provide a requested missing

witness instruction for abuse of discretion and actual prejudice.ʺ United States v.

Ebbers,

(2d Cir. 2006); see also United States v. Torres,

, 1170‐71 (2d Cir. 1988) (ʺWhether a missing witness charge should be given

lies in the sound discretion of the trial court.ʺ).

In this case, the district court did not abuse its discretion in

delivering an uncalled witness instruction instead of a missing witness

instruction. Meregildo conceded in the district court that he had an equal

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opportunity to call Aponte, and thus he cannot now take the contrary position on

appeal. The district court had ʺdiscretion to (1) give no instruction and leave the

entire subject to summations, (2) instruct the jury that no unfavorable inference

may be drawn against either side, or (3) instruct the jury that an adverse

inference may be drawn against either or both sides.ʺ United States v. Caccia,

(2d Cir. 1997) (citations omitted). Given the facts of this case, Judge

Pauley did not abuse his discretion in charging the jury that ʺno unfavorable

inference may be drawn against either side.ʺ

Finally, Meregildo has not

demonstrated actual prejudice. Hence, this aspect of the appeal fails.

2. The Supplemental Charge

Pierce, Colon, and Meregildo contend that the district courtʹs

supplemental jury instruction ‐‐ that membership in Count Oneʹs racketeering

enterprise (CAC) was not required for the Count Fifteen narcotics conspiracy ‐‐

constructively amended the indictment or, in the alternative, resulted in a

prejudicial variance.

On November 29, having begun their deliberations, the jurors sent a

note to Judge Pauley that asked: ʺAs related to [Count Fifteen], is the conspiracy

limited to the Courtlandt Avenue [C]rew? Or working together or in concert

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with the Courtlandt Avenue Crew?ʺ Tr. 6462. The government and defense

counsel agreed that the court should re‐read the narcotics conspiracy charge to

the jury, but the government argued that the court should also add that ʺ[t]he

charge in the indictment is not by its terms . . . limited to the Courtlandt Avenue

Crew or its members or associates.ʺ Tr. 6429. Over the objection of defense

counsel, the district court read the following supplemental instruction to the jury:

Members of the jury, [Count Fifteen] of the indictment does not allege that membership in the narcotics conspiracy requires membership in the Courtlandt Avenue Crew. To show that a conspiracy existed, the evidence must show that two or more persons, in some way or manner, either explicitly or implicitly, came to an understanding to violate the law and to accomplish an unlawful plan . . . . Finally, members of the jury, I remind you of my instruction . . . that the indictment defines the charged racketeering enterprise as the Courtlandt Avenue Crew, which is simply a form of reference adopted for the purposes of the indictment to describe the group of individuals who participated in the alleged racketeering enterprise.

Tr. 6462‐63.

a. Constructive Amendment

Pierce, Colon, and Meregildo contend that as charged in the

indictment, participation in the Count Fifteen narcotics conspiracy required

membership in CAC, and that when the court issued a supplemental instruction

‐ 26 ‐

that CAC membership was not required for Count Fifteen, the narcotics

conspiracy charge was constructively amended in violation of the Grand Jury

Clause. Defendants renew their argument that they were on notice to defend

against only the charge of a narcotics conspiracy involving CAC, not that they

ʺhad to defend against a general conspiracy to sell drugs in the Bronx.ʺ App.

3478.

We review claims of constructive amendment de novo. United States

v. McCourty,

(2d Cir. 2009). We have held that a defendant

raising a claim of constructive amendment must show that ʺthe terms of the

indictment are in effect altered by the presentation of evidence and jury

instructions which so modify essential elements of the offense charged that there is

a substantial likelihood that the defendant may have been convicted of an

offense other than that charged in the indictment.ʺ United States v. Vilar,

(2d Cir. 2013) (internal quotation marks omitted) (emphasis in original).

We have not found constructive amendment in a case ʺwhere a generally framed

indictment encompasses the specific legal theory or evidence used at trial.ʺ

United States v. Milstein,

(2d Cir. 2005) (per curiam) (internal

quotation marks omitted).

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By the plain language of the indictment, membership in CAC was

not required for Count Fifteen, the narcotics conspiracy count. Count Fifteen

does not explicitly mention CAC (i.e., the racketeering enterprise charged in

Count One), nor does it assert that the goals of the narcotics conspiracy were

coextensive with the goals of CAC. In fact, two defendants who were not

charged with being members of CAC in Count One were charged with being

members of the Count Fifteen narcotics conspiracy. Nothing in the indictment

suggested that membership in CAC was a necessary prerequisite to membership

in the narcotics conspiracy. The general nature of the narcotics conspiracy

charge put appellants on notice of the ʺcore of criminalityʺ charged in Count

Fifteen, and the district courtʹs supplemental instruction did not modify any

ʺessential elementʺ of the offense. See United States v. DʹAmelio,

, 416‐

18 (2d Cir. 2012). We conclude that there was no constructive amendment of the

indictment.

b. Prejudicial Variance

Defendants argue in the alternative that even if the supplemental

instruction did not constructively amend the indictment, it constituted a

prejudicial variance because it broadened the scope of the conspiracy such that

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the jury could convict the defendants in the absence of a common purpose.

Colon contends that, rather than a common scheme or purpose, the proof

showed an ʺundisciplined group of teenage crack peddlers [who] were

concerned principally with advancing their own individual economic interests.

To that end, especially after Harrisonʹs murder, they formed innumerable

temporary alliances, connections and confederations.ʺ Colon Br. 58.

ʺA variance occurs when the charging terms of the indictment are

left unaltered, but the evidence offered at trial proves facts materially different

from those alleged in the indictment.ʺ United States v. Salmonese,

(2d Cir. 2003) (internal quotation marks omitted). Although both

constructive amendment and variance are based on constitutional concerns,

constructive amendment is a per se violation of the Grand Jury Clause, see

while a defendant must show ʺsubstantial prejudiceʺ to warrant reversal on a

variance claim, United States v. Rigas,

(2d Cir. 2007) (internal

quotation marks omitted). ʺBecause proof at trial need not, indeed cannot, be a

precise replica of the charges contained in an indictment, this court has

consistently permitted significant flexibility in proof, provided that the

defendant was given notice of the core of criminality to be proven at trial.ʺ

‐ 29 ‐

United States v. Heimann,

(2d Cir. 1983) (internal quotation

marks omitted).

In conspiracy cases, we have held that ʺ[w]hen convictions have

been obtained on the theory that all defendants were members of a single

conspiracy although, in fact, the proof disclosed multiple conspiracies, the error

of variance has been committed.ʺ United States v. Bertolotti,

(2d

Cir. 1975). In Bertolotti, we acknowledged:

This Circuit has gone quite far in finding single conspiracies in narcotics cases. Despite the existence of multiple groups within an alleged conspiracy, we have considered them as part of one integrated loose‐knit combination in instances where there existed ʹmutual dependence and assistanceʹ among the spheres, a common aim or purpose among the participants, or a permissible inference, from the nature and scope of the operation, that each actor was aware of his part in a larger organization where others performed similar roles equally important to the success of the venture.

(citations omitted). In Bertolotti we reversed the conviction because ultimately

we found ʺno evidence linking [the defendantsʹ transactions] together in a single

overall conspiracy.ʺ

.

Here, we are satisfied that there was sufficient evidence for a jury to

find that the charged distribution took place and that defendantsʹ activities were

‐ 30 ‐

part of the narcotics conspiracy charged in Count Fifteen. Cooperating witnesses

testified, inter alia, that Pierce sold drugs with other GFC members; and Parsons

testified that he was instructed by Harrison that if Harrison was not available to

receive the proceeds of narcotics sales, Parsons should deliver those proceeds to

Pierce. This evidence, along with the evidence of the roles of Meregildo and

Colon described above in Parts A.1 and A.2 of the Discussion Section, established

the requisite ʺmutual dependence and assistanceʺ necessary for ʺone integrated

loose‐knitʺ conspiracy.

(internal quotation marks omitted).

E. Pierceʹs Sentence

Pierce argues that the district court erred by imposing a 35‐year

sentence for his two Section 924(c) gun convictions (Counts Twenty‐Four and

Twenty‐Eight) because the district court sequenced the convictions in a way that

is inconsistent with the rule of lenity. This is an issue of first impression in the

Second Circuit.

Under

(c)(1)(A), for a first conviction, a defendant

receives a mandatory minimum consecutive sentence of five years if the firearm

is used or carried during the crime, and ten years if the firearm is discharged

during the crime. In the event of a ʺsecond or subsequent conviction . . . the

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person shall . . . be sentenced to a term of imprisonment of not less than 25

years.ʺ

(c)(1)(C).

In Deal v. United States, the Supreme Court clarified that a ʺsecond or

subsequent convictionʺ can arise when a defendant is charged with multiple

violations of Section 924(c) in the same indictment or arising from the same

proceedings.

, 135‐37 (1993). One of the convictions is treated as the

first conviction and the others are treated as ʺsecond or subsequent.ʺ But the

Supreme Court did not explain how to order those convictions for sentencing

purposes, nor does the text of the statute provide guidance. Accordingly, we

adopt the analysis of the Sixth Circuitʹs recent decision in United States v.

Washington, which we find persuasive.

(6th Cir. 2013) (ʺBecause

we conclude that § 924(c)(1)(C) is ambiguous as to how convictions should be

ordered for sentencing when a defendant is convicted on multiple counts of

carjacking that arise from the same indictment and proceedings, we are bound

by [the principle of lenity].ʺ); see also United States v. Major,

(9th

Cir. 2012).

Here, the district court treated the discharge conviction as the first

Section 924(c) conviction (carrying 10 years), and the possession conviction as the

‐ 32 ‐

second conviction (carrying 25 years), totaling a mandatory minimum of 35

years. On appeal, Pierce suggests ‐‐ and the government concedes ‐‐ that because

the statute is silent on how the counts should be sequenced for sentencing

purposes, the rule of lenity applies. See Rewis v. United States,

(1971) (ʺ[A]mbiguity concerning the ambit of criminal statutes should be

resolved in favor of lenity.ʺ). We agree. The district court should have treated

the possession conviction as the first Section 924(c) conviction (carrying 5 years),

and the discharge conviction as the second conviction (carrying 25 years),

totaling an aggregate statutory minimum of 30 years rather than 35 years for the

Section 924(c) convictions. Accordingly, we remand with instructions for the

district court to vacate the sentences on the two counts and resentence Pierce

accordingly.

CONCLUSION

For the foregoing reasons, the judgments of the district court are

AFFIRMED, except that the case is REMANDED as to Pierce, with instructions

for the district court to vacate and resentence on Counts Twenty‐Four and

Twenty‐Eight as set forth above.

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