19-3313 (L) United States v. White UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of August, two thousand twenty-one.

PRESENT: ROBERT D. SACK, STEVEN J. MENASHI, Circuit Judges, LEWIS A. KAPLAN, * Judge. ____________________________________________

UNITED STATES OF AMERICA,

Appellant-Cross-Appellee,

v. Nos. 19-3313-cr(L), 20-805-cr(XAP)

*Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York, sitting by designation. MICHAEL WHITE, AKA MIKE,

Defendant-Appellee-Cross-Appellant,

JOEY COLON, DEMETRIUS WINGO, AKA POPPA, ANTHONY BUSH, AKA ANT, DAVID OQUENDO, CHRISTIAN PEREZ, AKA PUN, JAMES ROBINSON, ALLEN KNIGHT, AKA STUTTER, MIGUEL CALDERON, AKA MICK, JAMES SNIPES, AKA 80 MESE, WELSEY MONGE, AKA WES, OSCAR BRIONES, AKA O BLOCK, ROY ROBINSON, AKA MOB,

Defendants. ____________________________________________

For Appellant-Cross-Appellee: ALEXANDRA ROTHMAN, Assistant United States Attorney (Christopher Clore, Jordan Estes, Thomas McKay, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY

For Defendant-Appellant-Cross-Appellee: ELIZABETH LATIF, Law Offices of Elizabeth Latif, PLLC, West Hartford, CT

2 Appeal from a judgment of the United States District Court for the Southern

District of New York (Torres, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of acquittal of the district court as to Count One is

REVERSED; that the judgments of conviction of the district court as to Counts

Two, Four, and Eleven are AFFIRMED; and that the case is REMANDED for

resentencing on Count One.

Defendant-Appellant-Cross-Appellee Michael White was charged with four

counts in a superseding indictment filed in the U.S. District Court for the Southern

District of New York. Count One charged White with racketeering conspiracy in

connection with an alleged Racketeering Influenced and Corrupt Organization Act

(RICO) enterprise known as MBG, in violation of

(d). Count Two

charged White with racketeering conspiracy in connection with an alleged RICO

enterprise known as YGz, in violation

(d). Count Four charged

White with committing a violent crime in aid of racketeering (VCAR) in

connection with YGz, in violation of

(a)(3), 1959(a)(5), and 2.

Count Eleven charged White with using, carrying, and possessing firearms in

3 furtherance of the racketeering conspiracy charged in Count Two and the VCAR

charged in Count Four, in violation of

(c)(1)(A)(i), (ii), (iii), and 2.

A jury found White guilty on all counts. White moved for a judgment of

acquittal under Federal Rule of Criminal Procedure 29, arguing that the evidence

was insufficient to support the jury’s verdict. The district court granted White’s

motion with respect to Count One but affirmed the jury’s judgments of conviction

as to Counts Two, Four, and Eleven. The government appeals from the district

court’s judgment of acquittal as to Count One; White cross-appeals from the

court’s denial of his motion as to Counts Two, Four, and Eleven. White also

appeals from the district court’s denial of his motion to dismiss Count Eleven as

time-barred. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

I

“[W]e review the grant or denial of a judgment of acquittal under Rule 29 de

novo.” United States v. Eppolito,

(2d Cir. 2008). In so doing, “we apply

the same standard as the district court applied in its review of the evidence.”

United States v. Jackson,

(2d Cir. 2003). “Under Rule 29, a district

court will grant a motion to enter a judgment of acquittal on grounds of

4 insufficient evidence if it concludes that no rational trier of fact could have found

the defendant guilty beyond a reasonable doubt.”

In making that assessment,

“the court must view the evidence presented in the light most favorable to the

government,” and “[a]ll permissible inferences must be drawn in the

government’s favor.” United States v. Guadagna,

(2d Cir. 1999). A

court may therefore grant a defendant’s motion for a judgment of acquittal “only

‘if the evidence that the defendant committed the crime alleged was nonexistent

or … meager.’” Jackson,

. Accordingly, “[a] defendant who

challenges the sufficiency of the evidence to support his conviction ‘bears a heavy

burden.’”

“[C]ourts must be careful to avoid usurping the role of the jury when

confronted with a motion for acquittal.”

Rule 29 “does not provide the trial

court with an opportunity to ‘substitute its own determination of … the weight of

the evidence and the reasonable inferences to be drawn for that of the jury.’”

Guadagna,

. “[I]t is the task of the jury, not the court, to choose

among competing inferences that can be drawn from the evidence.” Jackson,

. “In fact, if the court ‘concludes that either of the two results, a

reasonable doubt or no reasonable doubt, is fairly possible, the court must let the

5 jury decide the matter.’” Guadagna,

(alteration omitted). The

deference traditionally afforded to the jury’s verdict “is especially important when

reviewing a conviction for conspiracy … because a conspiracy by its very nature

is a secretive operation, and it is a rare case where all aspects of a conspiracy can

be laid bare in court with the precision of a surgeon’s scalpel.” United States v. Pitre,

(2d Cir. 1992) (internal quotation marks omitted).

Under these principles, we reverse the district court’s judgment of acquittal

as to White’s conviction on Count One. As noted above, Count One charged White

with RICO conspiracy in connection with MBG, a criminal organization based in

the Mill Brook Houses, a housing project in the Bronx, New York. The jury’s

verdict on that count required it to find that White “agreed with his criminal

associates to form [a] RICO enterprise.” United States v. Applins,

(2d

Cir. 2011). In reversing the jury’s verdict, the district court determined that there

was insufficient evidence to support that finding, holding that “no rational juror

could find beyond a reasonable doubt that MBG constituted a RICO enterprise.”

Special App’x 33. In so holding, the district court erred.

At the outset, we note that the government was not required to prove “that

MBG constituted a RICO enterprise,”

to establish White’s guilt for RICO

6 conspiracy. “[T]he establishment of an enterprise is not an element of the RICO

conspiracy offense.” Applins,

(emphasis added); see also United States

v. Delgado,

, 79 (2d Cir. 2020) (“[I]n contrast to RICO’s substantive

offenses … ‘the Government need not establish the existence of an enterprise’ to

‘prove a RICO conspiracy.’”). Rather, because “the crime of RICO conspiracy

‘centers on the act of agreement,’” Delgado, 972 F.3d at 79, the government “need

only prove that the defendant knew of, and agreed to, the general criminal

objective of a jointly undertaken scheme,” United States v. Arrington,

(2d Cir. 2019). In other words, the government need only show “that the

defendants agreed that an enterprise would be established … and that the appellants

were aware of the general nature of the conspiracy” to secure a conviction for

RICO conspiracy, not that a RICO enterprise actually existed. Applins,

. The district court thus erred in holding that the government failed to prove

White’s guilt as to Count One because “no rational juror could find beyond a

reasonable doubt that MBG constituted a RICO enterprise.” Special App’x 33.

But even if the government had been required to prove that MBG

constituted a RICO enterprise, the government carried that burden. An

“enterprise” is defined by the RICO Act as, inter alia, “any union or group of

7 individuals associated in fact although not a legal entity.”

(4). This

definition “is obviously broad, encompassing ‘any … group of individuals

associated in fact.” Boyle v. United States,

(2009). Indeed, “the very

concept of an association in fact is expansive,” and “the RICO statute provides that

its terms are to be ‘liberally construed to effectuate its remedial purposes.’”

(citing

note). Accordingly, any “group of persons associated

together for a common purpose of engaging in a course of conduct” may constitute

a RICO enterprise if the evidence shows the existence of “an ongoing organization,

formal or informal” whose “various associates function as a continuing unit.”

United States v. Turkette,

(1981).

There was sufficient evidence from which a rational juror could find that

MBG met this expansive definition. That evidence included testimony from

cooperating witnesses that MBG had a defined territory; that members of MBG

had common rivals; and that MBG members discussed shootings with each other

to help anticipate retaliation from rivals. See MW Tr. 113-14, 193-94, 595-97, 615-

16. 1 The evidence also included photographs showing that MBG members had

1“MW Tr.” refers to the transcript of Michael White’s trial, which is included in the Appendix.

8 tattoos signifying their membership in MBG and affirmed their membership in

MBG through posts on social media. App’x 400-410. Most significantly, the

evidence showed that MBG members worked together for a common purpose—

chiefly, enriching themselves through the sale of narcotics. Cooperating witnesses

testified that MBG members had the same suppliers, served the same customers,

and cooked, bagged, and stored drugs at a single apartment in the Mill Brook

Houses. MW Tr. 282-85, 664-66. The same witnesses further testified that MBG

members bought guns for fellow MBG members to use to retaliate against MBG’s

rivals. Id. at 168, 203-04, 225, 375-76.

Viewed collectively and in the light most favorable to the government, as

required on review of a Rule 29 motion, the evidence was sufficient to permit the

jury to find that MBG “had multiple members who had a shared purpose of selling

drugs and committing various acts of violence” and thus constituted a RICO

enterprise. United States v. Krasniqi,

(2d Cir. 2014); see Turkette,

(“The enterprise is … a group of persons associated together for a

common purpose of engaging in a course of conduct.”).

In holding otherwise, the district court committed two errors. First, the

district court improperly assumed that a RICO enterprise must have certain

9 structural features that are not required under the statute. For instance, the district

court found it significant that there was “little to no evidence that MBG had any

kind of hierarchy, induction requirements or rituals, decision-making procedure,

or that MBG members were expected to serve any kind of roles” and that “the

evidence of any sort of membership rule or requirement [was] weak at best.”

Special App’x 33-35. These findings, even if correct, would not establish that MBG

was not a RICO enterprise. As the Supreme Court has explained, a RICO

enterprise “need not have a hierarchical structure or a ‘chain of command,’” and

“decisions may be made on an ad hoc basis and by any number of methods.” Boyle,

. Moreover, “[m]embers of the group need not have fixed roles,” nor

must the group have “a name, regular meetings, dues, established rules and

regulations, disciplinary procedures, or induction or initiation ceremonies.”

The district court erred in holding that MBG did not constitute a RICO enterprise

due to its purported lack of these features. See Krasniqi,

(“It is

beyond peradventure that a RICO enterprise is not required to have business-like

attributes such as a name, a hierarchical structure, a set membership, or

established rules.”) (citing Boyle,

).

10 The district court also erred by substituting its own determinations for the

jury’s. The district court found, for example, that “the evidence shows that the

guns [bought by MBG members] were actually bought or used in connection with

YGz, not MBG” and that, because many MBG members joined YGz before

committing shootings against a rival gang called Killbrook, “any inference that

these shootings were committed in furtherance of MBG” was “undermine[d].”

Special App’x 35, 39. But it was not for the district court to make such

determinations about what the evidence showed. See United States v. Florez,

(2d Cir. 2006) (“[T]he task of choosing among permissible competing

inferences is for the jury, not a reviewing court.”). One of the government’s key

witnesses repeatedly affirmed that guns were purchased for use by MBG

members. See MW Tr. 168, 203-04, 286, 375. The government’s witnesses also

testified that MBG members, including White, committed shootings against

Killbrook and sometimes used MBG guns to do so.

. Although it is difficult to disentangle the activities of MBG and

YGz in light of their overlapping membership and common rivalry with Killbrook,

a reasonable juror could find based on this testimony that at least some of the guns

were owned and used in the furtherance of the MBG racketeering conspiracy. That

11 inference would support the conclusion that MBG constituted a RICO enterprise.

See United States v. Coonan,

(2d Cir. 1991) (“Common 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.’”).

The record thus demonstrates that there was “sufficient evidence to permit

the jury to find that [White and his co-conspirators] agreed to form a RICO

enterprise and to conduct, and participate in, the conduct of [MBG’s] affairs.”

Applins,

. Accordingly, we reverse the district court’s judgment of

acquittal as to Count One and reinstate the jury’s verdict on that count.

II

We affirm the district court’s denial of White’s motion for acquittal as to

Counts Two, Four, and Eleven. There was sufficient evidence to support the jury’s

judgments of conviction as to each of those counts.

White contends that there was insufficient evidence to support his

conviction on Count Two because “the government failed to prove the existence

of the YGz enterprise beyond a reasonable doubt or that White knowingly agreed

to participate in the YGz enterprise.” Appellant’s Br. 14 (capitalization omitted).

These claims are meritless. The evidence at trial established that YGz members,

12 including White, identified themselves with gang tattoos, posts on social media, a

gang handshake, and a gang hand-symbol. App’x 399, 401, 403-07, 409-10; MW Tr.

136-39. Because “[t]he evidence demonstrated … that [YGz] gang members …

received tattoos signifying their membership in the gang, and flashed the [YGz]

hand sign … to ‘represent’ that they were members of [YGz],” we “have little

difficulty concluding that the government proved beyond a reasonable doubt that

the defendants agreed that an enterprise would be established” and that White

was a member of that enterprise. Applins,

. Testimony at White’s trial

also established that YGz members, including White, worked together for

common purposes—selling narcotics and committing acts of violence against

rivals. MW Tr. 256-58, 264-68, 281-85, 665-66. The trial evidence was therefore

sufficient for the jury to find that YGz was “an ongoing organization … [whose]

associates function as a continuing unit” and that White knowingly participated

in that enterprise. Turkette,

. We accordingly affirm the district

court’s denial of White’s motion for a judgment of acquittal on Count Two.

We reach the same conclusion with respect to Count Four, which charged

White with committing a VCAR in connection with the YGz enterprise. The VCAR

charged in that count was a shooting White committed in 2012 against rival gang

13 members at the Cypress Avenue subway station in the Bronx. On appeal, White

does not argue that the evidence was insufficient to find that he committed the

shooting. Rather, White contends that his conviction on Count Four must be

dismissed either because there was insufficient evidence to support his conviction

on Count Two or, in the alternative, because there was insufficient evidence from

which a rational juror could find that White committed the shooting to advance or

maintain his status in YGz. See Appellant’s Br. 20-26.

As explained above, there was sufficient evidence to support White’s

conviction on Count Two, so White’s claim to the contrary provides no basis for

vacating his conviction on Count Four. White’s argument in the alternative also

fails. “The VCAR statute authorizes the government to prosecute defendants for

‘violent crimes intended, inter alia, to permit a defendant to maintain or increase

[his] position in a RICO enterprise.’” United States v. Pimentel,

(2d

Cir. 2003). Such intent may be inferred if the jury could find “that the defendant

committed his violent crime because he knew it was expected of him by reason of

his membership in the enterprise or that he committed it in furtherance of that

membership.” United States v. Burden,

(2d Cir. 2010).

14 Here, the evidence was sufficient to support the jury’s finding that White

committed the subway shooting in the furtherance of his membership in YGz. The

government’s key witnesses testified that YGz members could climb the ranks in

the organization by committing acts of violence. MW Tr. 135, 251, 589, 611-12. They

further testified that YGz had a leadership position called “Big Gun” that one

would obtain by committing shootings. Id. at 115, 133-36, 251, 589, 603. A witness

also testified that White obtained “Big Gun” status in 2014—after the Cypress

Avenue shooting—by being one of the “people [in the gang] that did the most

shootings.” Id. at 249. And that witness further testified that White proclaimed his

membership in YGz immediately before committing the shooting, which supports the

inference that the shooting was committed in the furtherance of White’s

membership in YGz. Id. at 219-25. A rational juror could infer from this testimony

that White committed the Cyprus Avenue subway shooting, at least in part,

because it was expected of him or because he thought it would help him maintain

or advance his position in YGz.

We accordingly hold that the evidence was sufficient to sustain the jury’s

verdict as to Count Four and affirm the district court’s denial of White’s motion

for a judgment of acquittal as to that count.

15 We similarly affirm the district court’s denial of White’s motion for a

judgment of acquittal as to Count Eleven. As noted above, Count Eleven charged

White with using, carrying, and possessing firearms in furtherance of the YGz

racketeering conspiracy charged in Count Two and the VCAR charged in Count

Four, in violation of

(c)(1)(A)(i), (ii), (iii), and 2. White argues that

his conviction on Count Eleven must be vacated due to the government’s

purported failure to prove the existence of the YGz racketeering conspiracy

charged in Count Two. Appellant’s Br. 20. Because we conclude that the

government met its burden of proof with respect to Count Two, we reject this

argument and affirm the district court’s denial of White’s motion for a judgment

of acquittal on Count Eleven.

III

We also reject White’s contention that Count Eleven was time-barred and

affirm the district court’s holding that it was not. “[A] superseding indictment that

supplants a pending timely indictment relates back to the original pleading and

inherits its timelines as long as the later indictment does not materially broaden or

substantially amend the original charges.” United States v. Salmonese,

(2d Cir. 2003). To determine whether a superseding indictment amends the

16 original charges, “we will consider whether the additional pleadings allege

violations of a different statute, contain different elements, rely on different

evidence, or expose the defendant to a potentially greater sentence.”

Count Eleven of the superseding indictment did none of these things. The

count charged White with the exact same offense as Count Eight of the original

indictment, which it supplanted. Because both Count Eight and Count Eleven

charged White with a violation of

(c), Count Eleven did not contain

different elements, rely on different evidence, or expose White to a potentially

greater sentence than Count Eight. The sole difference between Count Eleven and

Count Eight is that Count Eight designated only Count Two as its predicate

offense, whereas Count Eleven was predicated on Count Two and Count Four,

both of which were charged in the original indictment. The superseding

indictment’s amendment of the Section 924(c) charge to include a reference to

another count that was already charged in the original indictment is not a

sufficiently meaningful change to defeat relation-back to the original indictment.

See United States v. Zvi,

(2d Cir. 1999) (“Superseding indictments

have been deemed timely when they simply added detail to the original charges,

17 narrowed rather than broadened the charges, contained amendments as to form

but not substance, or were otherwise trivial or innocuous.”).

White argues that the government’s amendment of the indictment

“require[d] [him] to litigate ‘additional elements’” because “[t]he addition of the

VCAR Shooting as an underlying violent crime to the § 924(c) charge in Count

Eleven of the Superseding Indictment required [him] to litigate … whether the

alleged shooting was a ‘violent crime’ under the relevant statute.” Reply Br. 2. But

that is not enough to show that Count Eleven is time-barred. As noted, a

superseding indictment will relate back to the original indictment unless it

“materially broaden[s] or substantially amend[s] the original charges.” Salmonese,

(emphasis added). Amending the Section 924(c) offense charged in

Count Eleven so that it was predicated on Count Four in addition to Count Two

did not “materially” or “substantially” amend the indictment, even if it required

White to argue that the offense charged in Count Four was not a crime of violence.

Moreover, “notice is the touchstone in deciding whether a superseding

indictment substantially changes the original charges.” United States v. Gengo,

(2d Cir. 1986). Because Count Four was charged in the original indictment,

“the amended [firearm] charge rested on the same factual allegations as the first

18 [indictment] and required no preparation of new evidence or defenses on

[White’s] part.”

. There is therefore no reason to conclude that White lacked

notice of the charges asserted against him in Count Eleven or that Count Eleven

unfairly prejudiced his defense.

Accordingly, we affirm the district court’s judgment that Count

Eleven was not time-barred. 2

* * *

2 White argues in a pro se supplemental brief that his conviction on Count Eleven should be vacated for the separate reason that it may be predicated on an offense—racketeering conspiracy—that may no longer serve as a predicate crime of violence for a charge under Section 924(c) in light of United States v. Davis,

(2019). White’s argument is meritless because the record shows that the jury found that Count Eleven was predicated on both Count Two and Count Four. MW Tr. 1483-85. The VCAR charged in Count Four remains a valid predicate crime for the Section 924(c) offense charged in Count Eleven.

19 We have considered White’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we REVERSE the district court’s

judgment of acquittal as to Count One, AFFIRM the district court’s denial of

White’s motion for a judgment of acquittal as to Counts Two, Four, and Eleven,

and REMAND the case for resentencing on Count One.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

20