22-933 (L) United States v. Avila (Patterson)

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 5th day of February, two thousand twenty-four.

PRESENT: ROBERT D. SACK, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-933-cr, 22-1010-cr

PATRICK AVILA, a/k/a SEALED DEFENDANT 1, JALEN COLDS, a/k/a SEALED DEFENDANT 2, NAZAE BLANCHE, a/k/a SEALED DEFENDANT 3, DONNELL JENKINS, a/k/a SEALED DEFENDANT 4, LEON SMALLS, COREY CRAY, a/k/a BOREY, ISAIAH MOSS, a/k/a ZAYA, DEVONAIRE PRICE, a/k/a DEV,

Defendants,

TYLER PATTERSON, a/k/a TY, JOSE CABAN, a/k/a NENE,

Defendants-Appellants. _____________________________________ FOR APPELLEE: JUSTIN V. RODRIGUEZ, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT-APPELLANT ROBIN CHRISTINE SMITH (Leean Othman, on JOSE CABAN: the brief), Law Office of Robin C. Smith, Esq., P.C., San Rafael, California.

FOR DEFENDANT-APPELLANT ROBERT A. SOLOWAY, Rothman, Schneider, TYLER PATTERSON: Soloway & Stern, LLP, New York, New York.

Appeal from judgments of the United States District Court for the Southern District of New

York (Valerie E. Caproni, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments, entered on April 14, 2022 as to Defendant-Appellant Tyler

Patterson and May 2, 2022 as to Defendant-Appellant Jose Caban, are AFFIRMED.

I. Jose Caban

Caban appeals from a judgment of conviction entered after a jury trial at which he was found

guilty of two counts of committing a violent crime in aid of racketeering (“VICAR”), in violation

of

(a)(3), (a)(5), and 2 (Counts One and Three), and two counts of use and

possession of a firearm in furtherance of a crime of violence, in violation of

(c)(1)(A)(i), (ii), (iii), and 2 (Counts Two and Four). The charges arose from Caban’s

participation in two shootings as part of the “JackBoyz” street gang, which operates near Jackson

Avenue in the South Bronx. Caban was sentenced principally to twenty-one years’ imprisonment,

to be followed by five years of supervised release. On appeal, Caban argues that the district court

2 committed reversible error in admitting certain photographic and hearsay evidence at trial, and also

contends that his Section 924(c) convictions must be overturned because neither of them was based

on a valid predicate “crime of violence.” We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal, which we reference only as necessary to explain our

decision to affirm.

A. Photographic Evidence

To obtain a conviction on the VICAR offenses, the government was required to prove, inter

alia, that the JackBoyz gang was “engaged in racketeering activity as defined in [the Racketeer

Influenced and Corrupt Organizations Act (“RICO”)].” United States v. White,

(2d Cir. 2021). The operative superseding indictment alleged that the JackBoyz “sold narcotics”

and “engaged in racketeering activity, . . . [including] offenses involving trafficking of controlled

substances.” App’x at 26. To sustain its burden at trial, the government sought to introduce into

evidence, inter alia, photographs that Caban had posted on Instagram of himself holding large

amounts of cash. The district court admitted this evidence over Caban’s objection, finding that its

probative value was “self-evident” and that the evidence was not unfairly prejudicial because Caban

was “charged with being part of a crew that sells drugs.” Supp. App’x at 54. On appeal, Caban

contends that this was an error and that the photographs should have been excluded as irrelevant

and unfairly prejudicial.

Evidence is relevant if “it has any tendency to make a fact more or less probable,” and “the

fact is of consequence in determining the action.” Fed. R. Evid. 401. Rule 403 allows a district

court to “exclude relevant evidence if its probative value is substantially outweighed by a danger

of . . . unfair prejudice.” Fed. R. Evid. 403. Evidence is not unfairly prejudicial when it “d[oes]

3 not involve conduct more inflammatory than the charged crime.” United States v. Livoti,

(2d Cir. 1999). We review a district court’s decision to admit evidence for abuse of

discretion. See United States v. Skelos,

(2d Cir. 2021). Thus, where a “district

court has conscientiously balanced the proffered evidence’s probative value with the risk for

prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.” United States v.

Awadallah,

(2d Cir. 2006).

Caban argues that the photographic evidence was irrelevant and unfairly prejudicial because

it was “unrelated to any specific alleged facts” and “swayed the jury to convict based upon [his]

criminal propensity.” Appellant’s Br. at 20. We disagree. The photographs of Caban holding

large amounts of cash were probative of the JackBoyz’s racketeering activity, which the

superseding indictment alleged involved narcotics trafficking. We have repeatedly held that

evidence of “unexplained cash” supports an inference of illegal racketeering activity, including

narcotics trafficking. See, e.g., United States v. Henry,

(2d Cir. 2003)

(“[U]nexplained cash . . . may be indicative of a marijuana conspiracy.”); United States v. Amuso,

(2d Cir. 1994) (“Possession of large amounts of cash . . . tended to make it

‘more probable’ that [the defendant] was involved in illegal racketeering activities.”); United States

v. Young,

, 762–63 (2d Cir. 1984) (“The accumulation of such a large amount of

unexplained and unreported wealth was . . . highly probative of [the defendant’s] involvement in

narcotics trafficking.”). The captions that Caban posted to Instagram alongside these photographs

bolstered their probative value. For example, one post included the caption, “I’m Onna Block

Everyday Trappin Tryna Get Rich.” App’x at 103–04. At trial, a former JackBoyz member

4 testified that “‘[t]rappin’ means selling drugs.” Supp. App’x at 131. Therefore, we find

unpersuasive Caban’s argument that the photographic evidence lacked probative value.

We likewise disagree with Caban’s assertion that the district court abused its discretion in

concluding that the evidence was not unfairly prejudicial under Rule 403. To be sure, this

evidence, as noted above, supported the inference that Caban was involved in the narcotics

trafficking of the JackBoyz, “but evidence is unduly prejudicial only when it tends to have some

adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission

into evidence.” United States v. Kadir,

(2d Cir. 2013) (alterations adopted)

(internal quotation marks and citation omitted). Here, the district court was well within its

discretion to conclude that the admission of the evidence was justified because the superseding

indictment charged that one of the racketeering activities of the gang was narcotics trafficking, and

Caban was alleged to have been a member of that gang. 1 Moreover, this evidence supporting

Caban’s involvement in the gang’s drug trafficking “did not involve conduct any more sensational

or disturbing than the [shootings] with which [Caban] was charged.” United States v. Roldan-

Zapata,

(2d Cir. 1990). Accordingly, there is no basis to disturb the district

court’s ruling that the probative value of the photographs was not substantially outweighed by any

risk of unfair prejudice.

1 Indeed, the government introduced other evidence to prove that the gang’s racketeering activity involved trafficking in controlled substances, including the testimony of a former gang member and social media records suggesting that a co-defendant contacted Caban to source drugs for a customer.

5 B. Out-of-Court Statement

Caban also challenges the district court’s admission of an out-of-court statement from a

passing motorist to a police officer, which provided a description of an individual fleeing the scene

of one of the charged shootings. Specifically, the officer testified at trial that, as he was running

over the Willis Avenue Bridge in pursuit of the suspect, a passing motorist told him, in substance,

that a “light skinned” black man “with dreads” was running southbound on the bridge towards

Manhattan. Supp. App’x at 198. The district court admitted the motorist’s statement under

Federal Rule of Evidence 803 as an excited utterance or, in the alternative, as a present sense

impression. On appeal, Caban argues that the district court erred because the admitted statement

“lacked reliability” and “den[ied] him his right under the Confrontation Clause, as the alleged

motorist did not testify at trial.” Appellant’s Br. at 21. We review a district court’s evidentiary

rulings for abuse of discretion, see Skelos,

, and “[a]lleged violations of the

Confrontation Clause . . . de novo, subject to harmless error analysis,” United States v. Vitale,

(2d Cir. 2006).

We discern no error in the admission of the statement under Rule 803. The present sense

impression exception to the rule against hearsay permits the admission of an out-of-court “statement

describing or explaining an event or condition, made while or immediately after the declarant

perceived it.” Fed. R. Evid. 803(1). The excited utterance exception permits the admission of an

out-of-court “statement relating to a startling event or condition, made while the declarant was

under the stress of excitement that it caused.” Fed. R. Evid. 803(2). In the instant case, the

motorist’s statement to the police officer describing the physical attributes and direction of travel

of the man he had just seen running across the bridge was both a statement “describing . . . an event

6 or condition, made . . . immediately after the declarant perceived it,” Fed. R. Evid. 803(1), and a

statement “relating to a startling event . . . made while the declarant was under the stress of

excitement” that witnessing the foot pursuit caused, Fed. R. Evid. 803(2). Although Caban argues

that the out-of-court statement was unreliable, we have emphasized that these hearsay exceptions

are premised on an understanding that the circumstances required for admissibility provide intrinsic

reliability. See United States v. Jones,

(2d Cir. 2002) (“[S]tatements [admitted

under the present sense impression exception] are considered to be trustworthy because the

contemporaneity of the event and its description limits the possibility for intentional deception or

failure of memory.”); United States v. Tocco,

(2d Cir. 1998) (“The rationale for

[the excited utterance] hearsay exception is that the excitement of the event limits the declarant’s

capacity to fabricate a statement and thereby offers some guarantee of its reliability.”). Therefore,

the district court did not abuse its discretion in finding that these hearsay exceptions applied.

We find Caban’s challenge to the out-of-court statement under the Confrontation Clause to

be similarly unavailing. “[T]he Confrontation Clause prohibits admission at trial of out-of-court

testimonial statements against a criminal defendant unless the declarant is unavailable and the

defendant had a prior opportunity to cross-examine him.” Washington v. Griffin,

(2d Cir. 2017). In Crawford v. Washington,

(2004), the Supreme Court “declined

to settle on a precise articulation of the term” testimonial, Griffin,

(citing Crawford,

541 U.S. at 51–52, 68), but the Court subsequently clarified that a statement is testimonial if it was

made or procured with the “primary purpose of creating an out-of-court substitute for trial

testimony,” Ohio v. Clark,

(2015) (quoting Michigan v. Bryant,

(2011)). In accordance with that principle, in Davis v. Washington,

(2006), the

7 Supreme Court held that a 911 call by a domestic abuse victim was not testimonial because the

purpose of the declarant’s statement was not to substitute for live testimony, but rather “to enable

police assistance to meet an ongoing emergency.”

; see also

at 817–18. Moreover,

“the [Supreme] Court [has] observed [that] the Clause does not ‘bar every statement that satisfies

the “primary purpose” test,’ [such as] out-of-court statements ‘that would have been admissible in

a criminal case at the time of the founding.’” Griffin,

(alterations adopted)

(quoting Clark,

).

Here, the district court correctly determined that the motorist’s spontaneous statement to the

police officer was not testimonial under the Confrontation Clause because it was clearly intended

to assist the police officer with an “ongoing emergency”—namely, the foot pursuit of a suspect in

a shooting. See Bryant,

(holding that an emergency was still ongoing, and the

shooting victim’s statement therefore nontestimonial, where, inter alia, the “perpetrator[’s] . . .

location was unknown at the time the police located the victim,” and there was “a potential threat

to the responding police and the public at large”). As the Supreme Court has explained, during an

ongoing emergency, “because the prospect of fabrication in statements given for the primary

purpose of resolving that emergency is presumably significantly diminished, the Confrontation

Clause does not require such statements to be subject to the crucible of cross-examination.”

. Importantly, as it relates to the specific circumstances presented here, the Supreme Court has

explained that “[t]his logic is not unlike that justifying the excited utterance exception in hearsay

law,” where such statements are “considered reliable because the declarant, in the excitement,

presumably cannot form a falsehood.” Id.; see also Ohio v. Roberts,

(1980)

(holding that “[r]eliability can be inferred without more in a case where the evidence falls within a

8 firmly rooted hearsay exception”); Brown v. Keane,

(2d Cir. 2004) (noting that the

excited utterance exception “has been ruled to be firmly rooted” (citing Lilly v. Virginia,

(1999))).

Accordingly, the district court did not err in admitting the motorist’s out-of-court statement.

C. Section 924(c) Convictions

Caban argues that his firearms convictions on Count Two and Count Four must be vacated

because the predicate offenses for those convictions do not qualify as a “crime of violence” under

Section 924(c). In United States v. Davis,

, 2323–34 (2019), the Supreme Court

struck down the “residual” clause, Section 924(c)(3)(B), as unconstitutionally vague. Therefore,

following Davis, in order for an offense to serve as a predicate crime of violence for a Section

924(c) count, it must qualify under the “elements” or “force” clause under Section 924(c)(3)(A)—

namely, the offense must “ha[ve] as an element the use, attempted use, or threatened use of physical

force against the person or property of another.”

(c)(3)(A). In United States v.

Taylor,

, 2020–21 (2022), the Supreme Court held that attempted Hobbs Act robbery

was not categorically a crime of violence for purposes of Section 924(c), because no element of

attempted Hobbs Act robbery requires that the government prove use, attempted use, or threatened

use of force. Caban contends that “racketeering” is not categorically a crime of violence, and that

Taylor requires reversal of his Section 924(c) convictions predicated on attempted murder in aid of

racketeering.

Although we ordinarily review de novo whether a crime is categorically a crime of violence

under Section 924(c), because Caban did not raise this challenge to his Section 924(c) convictions

in the district court, we review for plain error. United States v. Hendricks,

(2d

9 Cir. 2019). In any event, we find no error under either standard because Caban’s firearm

convictions on Counts Two and Four were each based on a predicate offense—namely, attempted

murder under New York Penal Law § 125.25(1)—that is a crime of violence under Section 924(c).

Count Two was predicated on “the violent crime in aid of racketeering charged in Count

One” of the Indictment, App’x at 28, and Count Four was predicated on “the violent crime in aid

of racketeering charged in Count Three” of the Indictment, id. at 30. In turn, Count One and Count

Three charged, and the jury found in a special verdict form, that Caban committed both attempted

murder in aid of racketeering and assault with a dangerous weapon in aid of racketeering on each

count, in violation of VICAR,

(a)(3), (a)(5).

We have held that substantive VICAR offenses, like substantive RICO offenses, are

analyzed under a “modified categorical approach.” United States v. Pastore,

, 118–

19 (2d Cir. 2023). Under that approach, “a substantive VICAR offense is a crime of violence when

predicated on at least one violent crime in aid of racketeering acts.”

(internal quotation

marks and citation omitted). Moreover, in Pastore, we held that a “substantive VICAR conviction

for attempted murder in aid of racketeering under

(a)(5)—itself predicated, in this

case, on attempted murder in violation of [

(1)]—is a valid predicate crime

of violence under [S]ection 924(c).”

In reaching that determination, we explicitly rejected the

argument that the Supreme Court’s recent decision in Taylor required a different result.

at 120–

21. Specifically, we explained that New York second-degree murder can only be committed by

“the actual use of force.”

. Moreover, “[s]ince attempted murder requires both an intent

to use physical force and a substantial step towards the use of physical force, it satisfies the

10 ‘attempted use . . . of physical force’ element under [S]ection 924(c) and thereby qualifies as a

crime of violence.”

(citation omitted).

Here, as made clear in the indictment and jury instructions, the attempted murder in aid of

racketeering that served as one of the predicates for Caban’s Section 924(c) convictions on both

Count Two and Count Four is, like the VICAR offenses in Pastore, based on attempted murder

under

(1). Therefore, our holding in Pastore forecloses Caban’s

challenge to his Section 924(c) convictions in this case. 2

* * *

We have considered Caban’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the May 2, 2022 judgment of the district court.

II. Tyler Patterson

Attorney Robert A. Soloway, counsel for Patterson, moves for permission to withdraw as

counsel pursuant to Anders v. California,

(1967). The government moves to dismiss

Patterson’s appeal based on the appeal waiver in his plea agreement or, in the alternative, for

summary affirmance of his conviction and sentence.

Upon due consideration, the Anders motion is GRANTED. We also GRANT the

government’s motion to dismiss Patterson’s appeal of his term of incarceration as barred by the

appeal waiver. See United States v. Gomez-Perez,

(2d Cir. 2000) (noting that a

2 We therefore need not and do not address the government’s alternative argument that the other predicate offenses in Caban’s VICAR counts—namely, assault with a dangerous weapon in aid of racketeering in violation of

(1) (in Count One) and § 120.05(2) (in Count Three)—also qualify as a “crime of violence” under Section 924(c).

11 defendant’s knowing and voluntary waiver of the right to appeal is enforceable). We GRANT the

summary affirmance motion as to Patterson’s April 14, 2022 judgment of conviction, mandatory

special assessment, and term and conditions of supervised release because they present no

meritorious issues. We DENY Patterson’s request to withdraw his appeal because it did not

comply with Local Rule 42.2, and we further DENY his request for substitute counsel as moot

because the judgment has been affirmed.

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

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