22-2527-cr (L) United States v. Torres

In the United States Court of Appeals For the Second Circuit ___________

August Term 2023 Nos. 22-2527-cr (L), 22-2652-cr (CON), 22-2976 (CON)

UNITED STATES OF AMERICA, Appellee,

v.

RANDY TORRES, AKA RICO, WALSTON OWEN, CHARLES VENTURA, Defendants-Appellants. * ___________

ARGUED: MAY 10, 2024 DECIDED: DECEMBER 20, 2024 ___________

Before: CABRANES, PARKER, and KAHN, Circuit Judges. ________________

Randy Torres, Walston Owen, and Charles Ventura appeal from judgments of the United States District Court for the Southern District of New York (Victor Marrero, J.) convicting them of offenses related to their involvement in a street gang known as the Rollin’ 30s Crips. Following a jury trial, all three were found guilty of racketeering conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

(d) (Count One). In addition, Owen was convicted of assault and attempted murder in aid of racketeering,

(a)(3), 1959(a)(5), and 2 (Count Two); unlawful use

* The Clerk of Court is respectfully directed to amend the official caption as displayed above.

1 of a firearm “during and in relation to a crime of violence,” in violation of

(c)(1)(A) (Count Three); and assault in aid of racketeering, in violation of

(a)(3) and 2 (Count Four). Ventura too was convicted of assault and attempted murder in aid of racketeering (Count Five) and unlawful use of a firearm “during and in relation to a crime of violence” (Count Six), as well as possession of a firearm following a felony conviction, in violation of

(g)(1) (Count Seven). Torres and Owens were sentenced to aggregate terms of 475 months’ imprisonment, while Ventura received an aggregate term of 288 months’ imprisonment. On appeal, the Defendants variously argue that (1) there was insufficient evidence to support their convictions, and that the district court erred in (2) failing to strike the special sentencing factors, (3) admitting certain co- conspirator statements, (4) instructing the jury, (5) investigating jury impartiality, and (6) imposing its sentence on Ventura. We disagree. We DISMISS for lack of jurisdiction Ventura’s claim that the district court erred by refusing to downwardly depart when imposing his sentence and otherwise AFFIRM the judgments of the district court.

________________

SAM A. SCHMIDT, Law Office of Sam A. Schmidt, New York, NY (Jillian S. Harrington, Law Office of Jillian S. Harrington, Monroe Township, NJ, on the brief), for Defendant-Appellant Randy Torres.

ANDREW FREIFELD, New York, NY, for Defendant- Appellant Walston Owen.

JOHN BURKE, Law Office of John Burke, Brooklyn, NY, for Defendant-Appellant Charles Ventura.

JACQUELINE KELLY, (David Abramowicz, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

________________

2 MARIA ARAÚJO KAHN, Circuit Judge:

Randy Torres, Walston Owen, and Charles Ventura (together, the

“Defendants”) appeal from judgments of the United States District Court for the

Southern District of New York (Victor Marrero, J.) convicting them of numerous

offenses arising out of their involvement in a violent street gang known as the

Rollin’ 30s Crips (“Rollin’ 30s”). Following a thirteen-day jury trial, all three

Defendants were convicted of racketeering conspiracy, in violation of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”),

(d). Additionally, Owen and Ventura were each convicted of related firearms

and assault offenses. Torres and Owens were sentenced to aggregate terms of 475

months’ imprisonment, while Ventura received an aggregate term of 288 months’

imprisonment.

On appeal, the Defendants variously argue 1 that (1) there was insufficient

evidence to support their convictions, and that the district court erred in (2) failing

to strike the special sentencing factors, (3) admitting certain co-conspirator

statements, (4) instructing the jury, (5) investigating jury impartiality, and (6)

1 Each Defendant also adopts all relevant appellate claims raised by his fellow Defendants. For the sake of clarity, this opinion will refer to each argument as being raised by the Defendant who briefed the issue.

3 imposing a sentence on Ventura. We reject each of these challenges. We DISMISS

for lack of jurisdiction the portion of Ventura’s appeal asserting that the district

court erred by refusing to downwardly depart when imposing his sentence and

otherwise AFFIRM the judgments of the district court.

BACKGROUND

I. FACTS

According to the evidence adduced at trial, the Rollin’ 30s are a subset of the

national street gang known as the Crips. Within the Rollin’ 30s are several

subgroups, including the Harlem Mafia Crips, the Silent Murder Crips, the

Certified Harlem Crips, and the Original Harlem Crips.

Torres was the highest-ranking member of the Rollin’ 30s, controlling

multiple subgroups of the gang throughout Brooklyn, the Bronx, Queens, and

upstate New York. In this role, he supervised hundreds of other gang members

and was empowered to, among other things, promote or demote members, collect

dues, and enforce the gang’s rules by ordering disciplinary violence. Owen sat

directly below Torres in the Rollin’ 30s hierarchy. He led a Rollin’ 30s crew

(known internally as a “lineup”) based out of Stratford Avenue in the Bronx and

administered orders to his subordinates regarding dues, disciplinary violence, and

4 day-to-day operations. Ventura served under Owen’s command in the Stratford

lineup. As a more senior member of the lineup, Ventura was authorized to direct

the actions of his subordinates, including ordering them to inflict disciplinary

violence against other, more junior members.

Torres, Owen, and Ventura separately directed and participated in multiple

acts of violence in furtherance of the Rollin’ 30s activities, including but not limited

to the March 2015 murder of Victor Chafla, the June 2015 assault of Luchone Elzey,

the September 2015 murder of Nestor Suazo, and the September 2017 shooting of

Collin Bromwell.

A. Murder of Victor Chafla

On March 26, 2015, Owen contacted a subordinate in the Stratford lineup,

Richard Feliz, to inform him of the whereabouts of a rival gang member that Owen

wanted Feliz and another Rollin’ 30s member to shoot. In response to Owen’s

directive, Feliz retrieved a gun, traveled with Christopher Domena—later a

cooperating witness—to Morrison Avenue, and shot at the rival gang member

multiple times. The shots missed their intended target, instead striking and killing

Victor Chafla, a bystander.

5 B. Assault of Luchone Elzey

On June 10, 2015, Owen and other Rollin’ 30s members assaulted and

permanently disfigured Luchone Elzey, a member of another Crips subset. Video

footage of the beating shows Owen kicking Elzey’s head, with others joining in on

the assault. At trial, cooperating witness Shaquille Bailey identified Owen in the

surveillance footage, adding that Owen was present when another gang member

slashed Elzey in the face.

C. Murder of Nestor Suazo

By September 2015, the leaders of two subsets of the Rollin’ 30s—the Harlem

Mafia Crips, of which Owen and Ventura were part, and the Certified Harlem

Crips—were embroiled in a dispute. Before that time, Torres led both groups, but

his treatment and promotion of Nathaniel Rodriguez caused a rupture between

the subsets.

On September 19, 2015, an altercation broke out between the Rollin’ 30s

subsets, during which Torres and another were stabbed by Nestor Suazo, a

Certified Harlem Crips member. Suazo fled the fight to a nearby store. Torres

followed Suazo into the store, punched Suazo in the face, and then left. After

exiting, Torres met up with two Harlem Mafia Crips, including Derrick

6 Richardson. Shortly thereafter, Richardson shot and killed Suazo at the behest of

Torres.

D. Shooting of Collin Bromwell

On September 6, 2017, Ventura shot at a man he mistook for the leader of a

rival gang, but was in fact Collin Bromwell, a member of the Silent Murder Crips,

a subset of the Rollin’ 30s. After the shooting, Ventura handed the gun to another

individual at the scene before the two fled in different directions. Law

enforcement later discovered Ventura’s cellphone in the area where the shooting

occurred.

II. PROCEDURAL HISTORY

Ventura was initially indicted on January 16, 2018, and charged with

possession of a firearm following a felony conviction as well as use of a firearm for

attempted murder and assault, in violation of

(c)(1)(A)(i), (iii), and

2. All three Defendants, along with six other members of the Rollin’ 30s, were later

charged by superseding indictment with racketeering conspiracy, firearms

offenses, and other related crimes.

Torres, Owen, and Ventura’s joint jury trial began on February 4, 2020.

During the government’s presentation of its case, a juror (“Juror-1”) approached

7 the district court to ask, inter alia, whether her name could be kept confidential.

The district court informed Juror-1 that her name had already been made public

at voir dire, and then questioned her about the basis for her inquiry as well as her

ability to remain impartial. After considering her responses and the Defendants’

request that she be struck from the jury, the district court determined that there

was an insufficient basis for excusing Juror-1. Later, a second juror (“Juror-2”)

inquired about the district court’s ability to keep the names of jurors confidential

post-trial. The Defendants requested that the district court conduct individualized

questioning of Juror-2, as it did for Juror-1, to ensure that she could remain

impartial. The district court took the Defendants’ motion under advisement and

subsequently concluded that Juror-2 would neither be questioned nor struck.

On February 19, 2020, Torres moved to strike the notice of special sentencing

factors from the indictment and the jury instructions on the basis that a violation

of second-degree murder in New York could not qualify as a predicate

racketeering act because that offense is more expansive than generic murder. The

district court denied the motion after identifying other cases where the same

argument was raised and rejected.

8 On February 24, 2020, the jury found the Defendants guilty on all seven

counts. The jury also made findings as to the special sentencing factors related to

Count One, namely that Suazo’s murder was part of the pattern of racketeering

activity Torres agreed to, and that Chafla’s murder was part of the pattern of

racketeering activity Owen agreed to.

Nearly a year after his conviction, in December 2020, Torres moved for a

new trial pursuant to Federal Rule of Criminal Procedure 33. That motion was

predicated on a post-sentencing affidavit by co-Defendant Emil Matute. At the

Defendants’ trial, former Rollin’ 30s member and cooperating witness Nathaniel

Rodriguez had testified about information that he learned from Matute concerning

the circumstances and aftermath of Suazo’s murder. In Matute’s post-sentencing

affidavit, however, he denied possessing personal knowledge of the information

that he had conveyed to Rodriguez. Based on this affidavit, Torres asserted that

Rodriguez’s testimony concerning what he had learned from Matute was

inadmissible and that, without this testimony, there was insufficient evidence to

support the jury’s finding as to the special sentencing factor. The district court

denied Torres’s motion, concluding that the evidence did not qualify as “newly

discovered” because it was clear from Rodriguez’s testimony that Matute may

9 have learned the information he conveyed from other co-conspirators. Suppl.

App’x 149.

Prior to sentencing, Torres and Owen argued that the maximum term of

imprisonment they should face for their racketeering conspiracy convictions was

twenty years, as the offense outlined in each of their special sentencing factors was

most analogous to voluntary manslaughter. The district court disagreed and

determined that the most analogous offense for Guidelines purposes was second-

degree murder under

. Thereafter, Torres and Owen were each

sentenced to aggregate terms of 475 months’ imprisonment. Ventura received an

aggregate term of 288 months’ imprisonment. This appeal followed.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

Torres and Owen raise three separate challenges to the sufficiency of the

evidence supporting their convictions. First, Torres contends that there was

insufficient evidence to support the jury’s finding with respect to the special

sentencing factor on Count One, disputing that the murder of a fellow Rollin’ 30s

member—albeit someone affiliated with another subset—was in furtherance of the

Rollin’ 30s RICO conspiracy. Second, Owen also contests the jury’s finding with

10 respect to the special sentencing factor on Count One, arguing that there was

insufficient evidence to prove that he aided and abetted the murder of Chafla.

Third, Owen claims that his conviction for the assault of Elzey in aid of

racketeering was not supported by sufficient evidence.

A challenge to the sufficiency of the evidence supporting a conviction is

reviewed de novo. See United States v. Klein,

(2d Cir. 2019). The

movant “bears a heavy burden,” as “the standard of review is exceedingly

deferential.” United States v. Martoma,

(2d Cir. 2017) (quoting United

States v. Coplan,

(2d Cir. 2012)). In conducting our review, we “must

view the evidence in the light most favorable to the government, crediting every

inference that could have been drawn in the government’s favor, and deferring to

the jury’s assessment of witness credibility and its assessment of the weight of the

evidence.”

(quoting Coplan,

). Furthermore, affirmance is

appropriate “so long as, from the inferences reasonably drawn, the jury might

fairly have concluded guilt beyond a reasonable doubt.” Klein,

(quoting United States v. Reifler,

(2d Cir. 2006)).

11 A. Special Sentencing Factor Finding Against Torres

Torres argues that there was insufficient evidence to support the jury’s

finding that Suazo’s murder was related to the activities of the enterprise because

Suazo was also a member of the Rollin’ 30s. This argument is without merit.

We have recognized that the predicate acts constituting the pattern of

racketeering activity “must be related and amount to or pose a threat of continued

criminal activity.” United States v. Burden,

(2d Cir. 2010) (internal

quotation marks omitted). The relatedness requirement takes two forms:

“horizontal relatedness” and “vertical relatedness.” United States v. Cain,

, 284–85 (2d Cir. 2012). Horizontal relatedness requires that the predicate acts

be interrelated, whereas vertical relatedness requires that the predicate acts “have

a nexus to the enterprise.”

. Torres’s arguments relate to vertical

relatedness.

To satisfy the vertical relatedness requirement, the government must

adduce sufficient evidence “that the defendant was enabled to commit the offense

solely because of his position in the enterprise or his involvement in or control

over the enterprise’s affairs, or because the offense related to the activities of the

12 enterprise.” Reich v. Lopez,

(2d Cir. 2017) (internal quotation marks

omitted).

The government presented sufficient evidence to meet the vertical

relatedness requirement. First, one cooperator, Domena, told jurors that Torres

had the authority to order discipline against members of the Rollin’ 30s and that

such discipline could include the individual being killed. From this, the jury could

reasonably infer that Torres was able to order Suazo’s murder “solely because of

his position in the enterprise.” Reich,

(internal quotation marks

omitted). Second, Rodriguez testified that Torres expressed his intention to

“handle” the internal gang conflict before ordering a subordinate to retrieve the

gun that was used to kill Suazo. Suppl. App’x 52, 58; see also infra Discussion

Section III.A (addressing the admissibility of Rodriguez’s testimony concerning

what Matute conveyed to him). Because the indictment identifies “maintain[ing]

discipline within the Enterprise” as one of the explicit purposes of the charged

enterprise, Torres App’x at 39, Torres’s order was necessarily “related to the

activities of the enterprise.” Reich,

(internal quotation marks

omitted). Accordingly, we reject Torres’s challenge to the special sentencing factor

finding against him.

13 B. Special Sentencing Factor Finding Against Owen

Owen, too, contests that sufficient evidence supported the jury’s finding

with respect to the special sentencing factor, arguing that Domena’s testimony was

insufficient to support the inference that Owen ordered the shooting that resulted

in Chafla’s death. We are unpersuaded.

A criminal conviction “may be supported by the uncorroborated testimony

of even a single accomplice . . . if that testimony is not incredible on its face.”

United States v. Baker,

(2d Cir. 2018) (quoting United States v.

Parker,

(2d Cir. 1990)). However, arguments concerning a lack of

corroboration are not grounds for reversal on appeal because “[a]ny lack of

corroboration goes to the weight of the evidence, not to its sufficiency, and a

challenge to the weight of the evidence is a matter for argument to the jury.”

United States v. Gordon,

(2d Cir. 1993).

Here, Owen’s varied attacks on Domena’s testimony go to lack of

corroboration. For example, Owen asserts that the government did not call Feliz

to testify directly about whether Owen ordered him to carry out the shooting that

resulted in Chafla’s death. Consequently, we find no basis for reversal and reject

Owen’s contentions.

14 C. Assault in Aid of Racketeering Finding Against Owen

Owen also contests the sufficiency of the evidence supporting his conviction

for assault in aid of racketeering. To prove an assault in violation of the Violent

Crimes in Aid of Racketeering Activity (“VICAR”) statute, the government must

show, among other things, that the defendant: (1) assaulted someone resulting in

serious bodily injury, see

(a)(3), and (2) committed that act “for the

purpose of gaining entrance to or maintaining or increasing position in an

enterprise engaged in racketeering activity,”

§ 1959(a). 2 Owen argues that the

government failed to demonstrate that (1) he intended to cause serious physical

injury to Luchone Elzey and (2) the assault was committed in aid of racketeering.

We reject both arguments.

First, we conclude that there was sufficient evidence to prove that Owen

intended to cause serious physical injury to Elzey. Count Four incorporates

violations of

(Assault in the Second Degree) and 20.00

(Accomplice Liability) as the predicate state law violations. A person is guilty of

second-degree assault under New York law when, “[w]ith intent to cause serious

2 Here, the government alternatively charged an aiding-and-abetting theory of liability pursuant to

, meaning it only needed to prove that Owen possessed the specific intent to facilitate or advance the Elzey assault. See United States v. Frampton,

(2d Cir. 2004).

15 physical injury to another person, he causes such injury to such person or to a third

person.”

(1). To establish accomplice liability under New

York law, the government must show that the defendant “acted with the mental

culpability necessary to commit the crimes charged and that, in furtherance

thereof, he solicited, requested, commanded, importuned, or intentionally aided

his alleged accomplices to commit such crimes.” People v. Lopez,

(2d Dep’t 2016).

The evidence adduced at trial was sufficient to establish that Owen was

guilty of second-degree assault. The government introduced video evidence

showing Owen kicking Elzey in the face, with others joining in on the assault. A

Rollin’ 30s member known as “Flirm” then slashed Elzey in the face, leaving him

permanently disfigured. Owen’s violent participation in the beating provides a

sufficient basis for a reasonable juror to infer that he intended to aid and abet the

infliction of the serious physical injury that Elzey sustained. By joining the group

that attacked Elzey, Owen “shared a community of purpose with them when

[Elzey] was seriously injured” and “at the very minimum, was an accessory and,

therefore, criminally liable for felony assault.” People v. Baugh,

,

316 (3d Dep’t 2012) (internal quotation marks omitted); see also People v. Francis,

16

(3d Dep’t 2011) (affirming a conviction of assault in the

second degree because the evidence established that the Defendant “actively

joined in the attack”).

We also conclude that sufficient evidence supports the finding that Owen

committed the assault for the purpose of “maintaining or increasing [his] position”

in the enterprise.

(a). That purpose requirement is “liberally”

construed and “is satisfied if the jury could properly infer that the defendant

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

his membership in the enterprise.” United States v. White,

(2d Cir.

2021) (internal quotation marks omitted). Here, co-conspirator testimony

established that Elzey was considered an enemy of the Rollin’ 30s enterprise.

Indeed, Bailey testified that “it was basically open season” on Elzey. Owen App’x

88. We have no problem concluding that a reasonable jury could properly infer

that attacking a known enemy was expected of Rollin’ 30s members.

II. CHALLENGE TO THE SPECIAL SENTENCING FACTORS

Torres argues that the district court erred in denying his motion to strike the

notice of special sentencing factors from the indictment. He contends that the

district court should have applied the categorical approach to determine whether

17 New York’s second-degree murder statute,

(1), meets the

generic definition of murder. Had the district court done so, he argues, it would

have found that the statute is broader than the generic definition of murder and

therefore cannot constitute a predicate racketeering act. Torres is mistaken; §

125.25(1) satisfies the generic definition of murder.

We review de novo the denial of a motion to dismiss charges in an indictment

as well as the district court’s resolution of questions of statutory interpretation. See

United States v. McCray,

(2d Cir. 2021).

We first note that every circuit court that has considered the issue has

concluded that the categorical approach should not be applied under these

circumstances. See United States v. Keene,

, 392–93 (4th Cir. 2020);

Johnson v. United States,

, 721 (6th Cir. 2023); United States v. Brown,

, 709 (7th Cir. 2020). Indeed, in rejecting Torres’s position, the Sixth Circuit

emphasized that “[n]o court has ever” required the application of the categorical

approach to discern whether a state law predicate crime satisfies RICO’s definition

of racketeering activity. Johnson, 64 F.4th at 721. We need not reach this question

here, however, as Torres’s claim fails even if we assume arguendo that we must

apply the categorical approach.

18 Under the categorical approach, we “compare the elements of the statute

forming the basis of the defendant’s [purported predicate offense] with the

elements of the ‘generic’ crime.” Descamps v. United States,

(2013).

Applied to these circumstances, a state crime would only qualify as predicate

racketeering activity “if the statute’s elements are the same as, or narrower than,

those of the generic offense.”

Here, the purported predicate offense is second-

degree murder under New York law. See

(1)(A) (defining

racketeering activity as “any act or threat involving murder, . . . which is

chargeable under State law and punishable by imprisonment for more than one

year”). Accordingly, we compare the definition of murder under

(1) to the generic definition of murder.

The generic definition of an offense is derived from its “contemporary

understanding.” United States v. Castillo,

(2d Cir. 2018) (quoting

Taylor v. United States,

(1990)). Courts may consider the common

law and how the offense is defined by most states, in addition to relying upon “the

federal criminal statutes, the Model Penal Code, scholarly treatises, and legal

dictionaries.”

(footnotes omitted). After surveying the Model Penal Code,

dictionary definitions, and state laws, we conclude that generic murder is defined

19 as causing the death of another person intentionally, during the commission of a

dangerous felony, or through conduct evincing reckless and depraved indifference

to serious dangers posed to human life. See United States v. Marrero,

(3d Cir. 2014), abrogated on other grounds by Johnson v. United States,

(2015). 3 Similarly, New York law defines second-degree murder as, inter alia,

intentional murder, killing under circumstances that evince depraved indifference

to life, and felony murder. See

(1)-(3). Accordingly, we

conclude that second-degree murder under New York law is not broader than

generic murder.

In arguing against that conclusion, Torres maintains that New York’s

second-degree murder statute is overbroad because it does not explicitly proscribe

intentional murder with malice aforethought. But his emphasis on the absence of

that phrase is misplaced. We recently explained that “malice aforethought” is a

term of art that “became over time an arbitrary symbol used by judges to signify

any of a number of mental states deemed sufficient to support liability for

murder.” United States v. Capers,

(2d Cir. 2021) (quoting Amer.

3 We also join the Ninth Circuit in adopting this definition. United States v. Vederoff,

, 1246–47 (9th Cir. 2019); see also United States v. Castro-Gomez,

, 1216–17 (10th Cir. 2015) (citing to Marrero for the generic definition of murder).

20 Law Inst., Model Penal Code and Commentaries, § 210.2 cmt. 1 at 13-14). The

“[f]irst and foremost” of those mental states was “intent to kill.” Id. at 130 (quoting

Amer. Law Inst., Model Penal Code and Commentaries, § 210.2 cmt. 1 at 14). Thus,

even accepting Torres’s premise that the categorical approach is required, second-

degree murder under New York law qualifies as predicate racketeering activity

and, consequently, the district court did not err in denying his motion to strike the

special sentencing factor from the indictment.

III. ADMISSION OF CO-CONSPIRATOR STATEMENTS

Torres and Ventura separately challenge the district court’s admission of

four co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E).

Torres contends that the district court erred in admitting (1) Rodriguez’s testimony

concerning what Matute conveyed to him about Suazo’s murder; (2) Facebook

messages between Rodriguez and an account named “Luis Lao”; and (3) Facebook

messages between Feliz and an individual known as “Bkricc Lohc.” Ventura

argues that the district court abused its discretion in admitting a recorded jail

conversation in which Bromwell identified Ventura as the person who shot him.

The government disagrees that there was any error, let alone error sufficient to

warrant a new trial.

21 We review evidentiary rulings by the district court under a deferential abuse

of discretion standard, reversing only those determinations that are manifestly

erroneous. See United States v. Gramins,

(2d Cir. 2019). Even if

the district court’s ruling was manifestly erroneous, the judgment will still be

affirmed where the error was harmless. See United States v. McGinn,

(2d Cir. 2015). We consider four factors in assessing harmlessness: “(1) the

overall strength of the prosecutor’s case; (2) the prosecutor’s conduct with respect

to the improperly admitted evidence; (3) the importance of the wrongly admitted

testimony; and (4) whether such evidence was cumulative of other properly

admitted evidence.”

at 127–28 (internal quotation marks omitted).

A. Rodriguez’s Testimony about Matute’s Statements

Torres contests the admission of Rodriguez’s testimony regarding what

Matute conveyed to him about Torres’s participation in Suazo’s murder on the

basis that Matute lacked first-hand knowledge of Torres’s role in the shooting.

That contention is meritless. We conclude that the district court did not abuse its

considerable discretion in admitting Rodriguez’s testimony, and that even if it did,

any error was harmless.

22 Federal Rule of Evidence 602 provides that “[a] witness may testify to a

matter only if evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”

However, the advisory

committee’s notes observe that the requirement set forth in Rule 602 does not

extend to admissions 4—including co-conspirator statements—admitted under

Rule 801(d)(2):

No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of truthworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.

Fed. R. Evid. 801(d)(2) advisory committee’s note to 1972 proposed rules.

The advisory committee’s notes also emphasize that Rule 801(d)(2)

identifies five “categories of statements for which the responsibility of a party is

considered sufficient to justify reception in evidence against him,” including

statements by a party’s agent as well as co-conspirator statements.

This reflects

4 In 2011, the advisory committee amended Rule 801 as part of a general “restyling” designed to make the Federal Rules of Evidence “more easily understood” and stylistically consistent. Fed. R. Evid. 801(d)(2) advisory committee’s note to 2011 Amendments. Accordingly, statements admitted under Rule 801(d)(2) are no longer referred to as “admissions.”

Despite this change in terminology, the advisory committee made clear that “[n]o change in application of [Rule 801] is intended.”

23 the fact that the co-conspirator exception to hearsay flows from the law of agency.

See United States v. Russo,

(2d Cir. 2002). As “partners in crime,”

(internal quotation marks omitted), each co-conspirator is deemed an agent of the

others, and the “actions and utterances of either done in furtherance of that

conspiracy are deemed authorized by the other,”

Accordingly, it follows that

just as we do not demand personal knowledge for statements by a party’s agent,

see United States v. Lauersen,

(2d Cir. 2003), we also do not require

personal knowledge for co-conspirator statements.

Until now, the Second Circuit has not squarely addressed Rule 602’s

applicability to statements admitted pursuant to Rule 801(d)(2)(E). See United

States v. Ferguson,

, 286 n.28 (2d Cir. 2011). In doing so here, we join

our sister circuits that have considered the issue and concluded that co-conspirator

statements are not subject to the personal knowledge requirement of Rule 602. See

United States v. Saccoccia,

(1st Cir. 1995) (same); United States v.

Ammar,

(3d Cir. 1983) (same); United States v. Goins,

,

443–444 (4th Cir. 1993) (same); United States v. McLernon,

(6th

Cir. 1984) (same); United States v. Lindemann,

, 1237–38 (7th Cir. 1996);

see also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

24 801.34[2] (2d ed. 2024) (noting that, for co-conspirator statements under Rule

801(d)(2)(E), “[t]here is no requirement that the declarant be speaking from

personal knowledge”).

Given that Matute did not need to have personal knowledge of Suazo’s

murder for his statements to be admissible pursuant to Rule 801(d)(2)(E), the

district court did not abuse its discretion in admitting Rodriguez’s testimony

concerning what Matute conveyed. Moreover, even if that were not the case, we

would still conclude that any error in admitting Rodriguez’s testimony was

harmless, because the government adduced abundant independent evidence

showing Torres’s participation in the murder of Suazo. 5

B. Facebook Messages Between Rodriguez and “Luis Lao”

Next, Torres challenges the admission of Facebook messages exchanged

between Rodriguez and an account with the name “Luis Lao,” in which Lao

identifies himself as a fellow member of the Crips and describes an incident

wherein he and Torres robbed a rival gang member at gunpoint. Torres contends

that the messages were improperly admitted because the government failed to

5 The government’s additional evidence included security footage showing Torres attack Suazo less than a minute before Suazo was shot and killed, Bailey’s testimony that Torres told him that he had to fire on Suazo, and Rodriguez’s testimony that Torres directly informed him that he was going to “handle the situation” shortly before Suazo’s murder.

25 prove by a preponderance of the evidence who Lao is, the nature of any specific

conspiratorial relationship between Lao and Torres, and how the proffered

statements furthered the ends of that specific conspiracy.

Even accepting Torres’s arguments that the district court abused its

discretion in admitting the Facebook messages, he fails to demonstrate that the

error was not harmless. The record is replete with other, more damning evidence

linking Torres to the Rollin’ 30s and the gang’s violent activity, including

surveillance footage of those activities and co-conspirator testimony. We therefore

conclude that this evidence “did not substantially influence the jury.” United States

v. Cummings,

(2d Cir. 2017) (internal quotation marks omitted).

C. Facebook Messages Between Richard Feliz and “Bkricc Lohc”

Third, Torres challenges the admission of Facebook messages exchanged by

Feliz and an individual known as “Bkricc Lohc.” In the messages, Feliz and

Lohc—a member of the Rollin’ 30s—expressed dismay at the internecine strife that

culminated in Suazo’s murder. Feliz recounted that “Star” was stabbed for

defending Torres, and Lohc lamented, “STILL WHY KILL YA OWN BROTHER

WE ALL THE SAME.” Torres App’x 319. Torres argues that the exchange is

nothing more than “idle chatter,” which is not sufficient to satisfy the “in

26 furtherance” prong of the 801(d)(2)(E) analysis. We are not persuaded, however,

that this supposed “idle chatter” contributed in any meaningful way to the jury’s

verdict. As previously noted, the government introduced significant evidence

linking Torres to Suazo’s murder. As such, we conclude that any error on the part

of the district court in admitting the messages between Feliz and Lohc was

harmless.

D. Collin Bromwell Jail Call

Finally, Ventura argues that the district court abused its discretion by

admitting a recording of an October 22, 2017 jail call involving Bromwell—a

member of the subset of the Rollin’ 30s known as the Silent Murder Crips—and

another individual named “Katchee.” During the call, Bromwell described getting

shot as well as his basis for believing that Ventura fired at him after mistaking

Bromwell for rival gang leader Jadon Robinson. Ventura contends that the

government failed to demonstrate by a preponderance of the evidence that he and

Bromwell were co-conspirators and that the statements made during the jail call

were in furtherance of their conspiratorial ends.

Again, even assuming the district court erred in admitting a recording of the

Bromwell jail call, we conclude that the error was harmless. Surveillance footage

27 confirmed Ventura was in the area around the time of the shooting and showed

him dropping a phone that police later recovered and traced back to him.

Accordingly, we conclude that any error by the district court in admitting a

recording of the jail call was harmless.

IV. JURY INSTRUCTIONS

The Defendants raise several challenges to the jury instructions. Torres

asserts that (1) the instruction on the special sentencing factor constructively

amended the indictment; (2) the instruction on the special sentencing factor

violated Apprendi v. New Jersey,

(2000); and (3) the district court erred

in refusing to instruct the jury on the affirmative defenses of extreme emotional

disturbance and justification. Owen joins Torres in arguing that the instruction on

the special sentencing factor constructively amended the indictment. Finally,

Ventura contends that the district court did not offer a sufficient curative

instruction to address the stricken testimony of Dr. Kara Storck.

Preserved challenges to the jury instructions are reviewed de novo. See

United States v. Rivera,

(2d Cir. 2015). An instruction is erroneous

“if it misleads the jury as to the correct legal standard or does not adequately

inform the jury on the law.” United States v. Silver,

(2d Cir. 2017)

28 (internal quotation marks omitted). Even if an instruction is erroneous, we will

not vacate the conviction if the error was harmless. See United States v. Skelos,

(2d Cir. 2021).

A. No Constructive Amendment

Torres and Owen posit that the district court’s instruction on the special

sentencing factor constructively amended the indictment. According to them, the

instruction should have required the jury to consider whether the government

proved that Torres and Owen committed the murders referenced in their

respective special sentencing factor. Instead, the government was only required

to prove that the murders alleged were within the scope of the pattern of

racketeering activity that each Defendant agreed would be committed.

To prevail on a constructive amendment challenge, a defendant “must

demonstrate that either the proof at trial or the trial court’s jury instructions so

altered an essential element of the charge that, upon review, it is uncertain whether

the defendant was convicted of conduct that was the subject of the grand jury’s

indictment.” United States v. Salmonese,

(2d Cir. 2003). Torres

and Owen have not made this showing.

29 At the outset, we note that Count One charges the Defendants with

participation in a RICO conspiracy, in violation of

(d), not with a

substantive violation of RICO or any other offense. A RICO conspiracy is distinct

from “the predicate acts that may evidence the pattern” of racketeering activity.

United States v. Pizzonia,

(2d Cir. 2009). To prove a RICO

conspiracy, the government need not “establish that a pattern of racketeering

activity actually took place.” United States v. Delgado,

, 79 (2d Cir. 2020).

Rather, it need only prove that a defendant agreed “with others to participate in

the conduct of the affairs of the enterprise and agree[d] that the conduct of the

affairs of the enterprise will include the predicate racketeering acts alleged.”

United States v. Laurent,

(2d Cir.), cert. denied,

(2022).

The special sentencing factor at issue is rooted in § 1963(a), which provides

for enhanced penalties for those found guilty of a RICO conspiracy “if the violation

is based on a racketeering activity for which the maximum penalty includes life

imprisonment,”

(a). In other words, the special sentencing factor

merely identified a predicate act—the second-degree murders of Suazo and

Chafla, which are punishable by life imprisonment—that each Defendant

respectively agreed was part of the affairs of the enterprise. It did not otherwise

30 transform the RICO conspiracy charge into another offense. See Capers,

. Thus, the district court did not amend the indictment by correctly instructing

that, to find each Defendant guilty of the special sentencing factor, the jury had to

conclude that the pattern of racketeering activity to which Torres and Owen

agreed included the murder of Suazo and Chafla, respectively. 6

B. No Apprendi Violation

Torres and Owen next contend that the instruction related to the special

sentencing factor contravened Apprendi v. New Jersey,

(2000), which

requires any fact—other than a prior conviction—“that increases the penalty for a

crime beyond the prescribed statutory maximum . . . be submitted to a jury, and

proved beyond a reasonable doubt.”

. Both Defendants argue that the

instruction on the special sentencing factor failed to require the jury to conclude

that each Defendant committed second-degree murder under New York law.

They further argue that the instruction erroneously asked jurors whether each

6 Torres’s reliance on Delgado is unavailing. In Delgado, our reversal was compelled by the jury’s specific finding that the Defendant did not aid and abet the two VICAR murders that also served as the basis for enhancing his RICO conspiracy conviction. See Delgado, 972 F.3d at 79. Moreover, in that case, the propriety of the instruction that required the government to prove that the Defendant murdered the victims pursuant to

(1) was not in dispute. See

As such, Delgado does not undermine our conclusion here that the jury was correctly instructed, and that no constructive amendment occurred.

31 Defendant committed conspiracy to commit murder, an offense that does not

qualify for an enhancement under § 1963(a) because it is not punishable by life

imprisonment. We disagree.

The jury found that Torres and Owen agreed to participate in the affairs of

the Rollin’ 30s enterprise through a pattern of racketeering activity, which

included the murder of Suazo and Chafla, respectively; not that the Defendants

conspired to commit either murder. Accordingly, neither the jury instructions nor

the Defendants’ sentences ran afoul of Apprendi.

C. No Error in Refusing to Instruct on Affirmative Defenses

Next, Torres contends that the district court erred in failing to instruct the

jury on the affirmative defenses of justification and extreme emotional disturbance

under New York law. Absent those instructions, he argues that “there can be no

finding that Torres was convicted of a State offense.” Torres’s Br. 47.

Because Torres’s crime of conviction was RICO conspiracy, not substantive

RICO, the instructions accurately reflected the fact that the government bore no

obligation to prove that Torres actually murdered Suazo under New York law. For

that reason, the district court did not err in failing to instruct the jury on the

affirmative defenses of justification and extreme emotional disturbance.

32 D. Sufficient Curative Instruction Offered for Stricken Testimony

Ventura asserts that the district court offered an insufficient curative

instruction to address the stricken testimony of Dr. Storck, a medical examiner

working for New York City. On direct examination, Dr. Storck was asked whether

she had any involvement in the investigation other than conducting the autopsy

of Suazo. She answered that she “testified previously in a criminal case for –

criminal trial for this case.” Ventura App’x 302. At this point, the defense

requested a sidebar, wherein the government represented that it had anticipated

the answer to that question would be “no.” Id. at 303. The parties agreed that a

curative instruction was needed but disagreed on the language that should be

used.

Ventura’s counsel requested an instruction indicating that Torres, Owen,

and Ventura were not “involved in the prior trial.” Id. at 304. The government

objected, instead proposing that the district court strike the comment and inform

the jurors that Dr. Storck’s answer “is not to be considered.” Id. at 305. The district

court agreed with the government. Ventura’s counsel proceeded to move for a

mistrial, but the district court denied his motion. Then, the district court “ask[ed]

the reporter to strike both the question that the government asked the witness and

33 the witness’s answer” and instructed the jury that the “question and answer and

that issue should not enter into your minds in any way.” Id. at 309–10. On appeal,

Ventura contends that the district court erred in failing to adopt the instruction

proposed by trial counsel. We are not persuaded.

Where the district court offers a curative instruction following an

inadmissible statement, this court presumes that the jury will heed the instruction

“unless there is an overwhelming probability that the jury will be unable to follow

the court’s instructions, and a strong likelihood that the effect of the evidence

would be devastating to the defendant.” Jackson v. Conway,

(2d

Cir. 2014) (quoting Greer v. Miller,

, 766 n.8 (1987)). Ventura has not

met this high bar.

Here, the district court promptly struck the testimony at issue and offered a

curative instruction that the jury was not to consider the government’s question

nor Dr. Storck’s answer. We see no basis for concluding that the jury was unable

or unwilling to adhere to that clear instruction. See United States v. Elfgeeh,

, 127 (2d Cir. 2008). What’s more, the stricken testimony was not inflammatory

such that it was very likely to have a devastating impact on Ventura. See Jackson,

(quoting Greer,

n.8). Consequently, we conclude

34 that the district court’s response to Dr. Storck’s testimony was not erroneous and

did not deprive Ventura of a fair trial.

V. INVESTIGATION OF JURY IMPARTIALITY

Ventura posits that he was deprived of his right to a fair and impartial jury

because of the district court’s limited investigation into and decision not to remove

two jurors who asked about their ability to remain anonymous after trial.

Specifically, Ventura argues that the district court erred by not removing Juror-1

and deciding not to question Juror-2.

We review a district court’s decision regarding juror impartiality for abuse

of discretion. See United States v. Peterson,

(2d Cir. 2004). When

credible allegations of juror bias are lodged at trial, the district court is obligated

to investigate and, if necessary, address the issue. See United States v. Haynes,

(2d Cir. 2013). The district court enjoys “broad flexibility in such

matters,”

at 192 (quoting United States v. Thai,

(2d Cir. 1994)),

including with respect to “when to question jurors and the manner of that

inquiry,” United States v. Ruggiero,

(2d Cir. 1991). This broad

discretion reflects the reality that any investigation is inherently intrusive and risks

tainting the jury “by exaggerating the importance and impact of what may have

35 been an insignificant incident.” United States v. Abrams,

(2d Cir.

1998) (per curiam). Accordingly, the district court is required not only to address

impartiality issues, but also to avoid needlessly prejudicing the jury when doing

so. See United States v. Cox,

(2d Cir. 2003).

The district court questioned Juror-1 directly and determined that Juror-1

suffered merely from a generalized fear of gang warfare and potential retaliation

that is not uncommon in RICO cases. Furthermore, it explained that “she did not

say that she could not be impartial.” Ventura App’x 241. Because “[a]bsent

evidence to the contrary, we presume that jurors remain true to their [sworn

duties],” United States v. Rosario,

(2d Cir. 1997) (internal quotation

marks omitted), we cannot conclude that the district court abused its discretion in

not removing Juror-1.

We similarly conclude that the district court acted within the scope of its

considerable discretion in addressing the concerns raised by Juror-2. The district

court determined that Juror-2’s inquiry and concern was identical to what was

expressed by Juror-1. Consequently, it declined to question Juror-2 to avoid the

risk of tainting the jury or magnifying the significance of a potentially

36 inconsequential question. See Abrams,

. That decision was squarely

in the district court’s discretion. See Ruggiero,

.

VI. CHALLENGES TO VENTURA’S SENTENCE

Ventura raises two separate challenges to his sentence. First, he asserts that

the district court assessed an unconstitutional “trial penalty,” lengthening his term

of imprisonment as punishment for exercising his right to trial. Ventura Br. 28.

Second, he contends that the district court erred in imposing his sentence because

it misapprehended its authority to grant a downward departure pursuant to

U.S.S.G. § 5K2.23. Both arguments are meritless.

A. No Due Process Violation

Ventura posits that the disparity between the sentence range mentioned by

the government in its plea offer, which Ventura rejected, and the sentence he

received after exercising his Sixth Amendment trial rights constitutes a due

process violation. We review de novo the district court’s application of and

adherence to constitutional due process standards. See United States v. Cruz-Flores,

(2d Cir. 1995).

The government’s plea proposal reflected the “mutuality of advantage” that

animates plea bargaining: Ventura would admit to a single offense and reduce his

37 sentencing exposure, while the government would be spared the time and expense

of proving his guilt. Bordenkircher v. Hayes,

(1978) (internal

quotation marks omitted). To be sure, “more severe punishment clearly may have

a discouraging effect on the defendant’s assertion of his trial rights,” but that is

both “inevitable” and “permissible” in a criminal legal system that permits plea

bargaining.

(internal quotation marks omitted). Ventura was not

subjected to a trial penalty merely because he did not get to enjoy the benefits of

the plea bargain that he rejected. See United States v. Fernandez,

(2d Cir. 2024) (“[O]ur system of pleas . . . often results in individuals who accept a

plea bargain receiving shorter sentences than other individuals who are less

morally culpable but take a chance and go to trial.” (internal quotations omitted));

see also United States v. Yeje-Cabrera,

, 26–27 (1st Cir. 2005) (“A defendant

simply has no right to a sentence, after trial, that is as lenient as a sentence he could

have had earlier in a plea bargain.”).

B. Refusal to Downwardly Depart

Finally, Ventura contends that the district court misapprehended its

authority to grant a downward departure pursuant to U.S.S.G. § 5K2.23 because it

mistakenly believed Application Note 4 of U.S.S.G. § 2E1.1 precluded it from doing

38 so. Specifically, he suggests that the district court believed it could not grant a

downward departure to credit him for a discharged sentence that he had served

for a May 2009 conviction of criminal possession of a weapon in the second-degree,

in violation of

. According to Ventura, that 2009 conviction

was for conduct relevant to the RICO conspiracy charged in Count One. Therefore,

because Ventura had served his term of imprisonment by the time he was

sentenced for his conduct in the case at bar, he argues the district court should

have credited his discharged prison term under § 5K2.23 just as it would an

undischarged sentence under § 5G1.3. We disagree.

“As a general rule, a refusal to downwardly depart is . . . not appealable.”

United States v. Young,

, 674 n.39 (2d Cir. 2018) (alteration in original)

(internal quotation marks omitted). However, we may review such a denial when

the district misunderstood its authority to downwardly depart or the sentence was

illegal for some other reason. See

Absent “clear evidence of a substantial risk

that the judge misapprehended the scope of his departure authority,” we presume

the district court accurately understood its authority. United States v. Stinson,

(2d Cir. 2006) (per curiam) (quoting United States v. Gonzalez,

(2d Cir. 2002)).

39 The record does not support Ventura’s claim that the district court

mistakenly believed Application Note 4 of § 2E1.1 precluded it from departing

downward under § 5K2.23. Initially, the district court expressed its understanding

that the Guidelines allow discharged sentences to be credited, though not in cases

“where the previously imposed sentence occurred prior to the last overt act of the

instant offense.” Suppl. App’x 152. But the district court sought clarification on

this point from the government, which explained that under the plain language

of § 5K2.23, a downward departure for a discharged term is discretionary. The

district court then exercised its discretion not to grant that departure.

Based on this record, we cannot conclude that there was clear evidence of a

substantial risk that the district court misapprehended its authority to

downwardly depart. Thus, we lack jurisdiction to review Ventura’s challenge on

this basis. See Stinson,

; see also United States v. Desena,

(2d Cir. 2001).

CONCLUSION

We have considered the parties’ remaining arguments on appeal and

conclude that they are without merit. For the reasons set forth above, we

DISMISS for lack of jurisdiction Ventura’s claim that the district court erred by

40 refusing to downwardly depart when imposing his sentence and otherwise

AFFIRM the judgments of the district court.

41