United States v. Anastasio

• Court: Court of Appeals for the Second Circuit
• Decided: August 19, 2020
• Docket: 18-421
• Status: Published

Opinion

18-421 United States v. Anastasio

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

August Term, 2019

(Argued: April 28, 2020 Decided: August 19, 2020)

Docket Nos. 15-1453-cr(L), 18-328-cr(Con), 18-369-cr(Con), 18-421-cr(Con) ______________

UNITED STATES OF AMERICA,

Appellee,

–v.–

JONATHAN DELGADO, MATTHEW SMITH, ISMAEL LOPEZ, DOMENICO ANASTASIO,

Defendants-Appellants. ∗ ______________

B e f o r e:

JACOBS, POOLER, and CARNEY, Circuit Judges. ______________

Defendant-Appellant Domenico Anastasio was charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (the “RICO Conspiracy Count”), and two counts of murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (the “VCAR Murder Counts”), based on his involvement with the 10th Street Gang in Buffalo, New York, and his role in the 2006 murders of Darinell

∗ The Clerk of Court is directed to amend the official caption to conform with the above. Young and Brandon MacDonald. Following a five-week trial, the jury found him guilty on all counts, including on two “special factors” that, as part of the RICO Conspiracy Count, charged Anastasio with intentionally causing the deaths of MacDonald and Young in violation of New York Penal Law §§ 125.25(1) and 20.00 (the “Murder Enhancements”). For these crimes, the United States District Court for the Western District of New York (Arcara, J.) sentenced Anastasio to life in prison. In his appeal, which we consolidated with those of his three co-defendants, Anastasio attacks the sufficiency of the evidence underlying his convictions; he also challenges several rulings made by the District Court before trial. On review, we agree with Anastasio that the evidence was insufficient to convict him of aiding and abetting the murders of MacDonald and Young. We conclude further, however, that the government adequately proved Anastasio’s knowing agreement to participate in a racketeering enterprise. Moreover, we discern no error in the District Court’s Batson ruling, and no abuse of discretion in its denial of Anastasio’s motion to sever his trial from that of his co-defendants. Accordingly, we AFFIRM Anastasio’s judgment of conviction as to the RICO Conspiracy Count; REVERSE the judgment as to the VCAR Murder Counts and the Murder Enhancements of the RICO Conspiracy Count and direct the District Court to enter a judgment of acquittal on the VCAR Murder Counts and the Murder Enhancements; and REMAND the cause for RESENTENCING.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING. ______________

PETER J. TOMAO, Esq., Garden City, NY, for Defendant- Appellant Domenico Anastasio.

MONICA J. RICHARDS, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee United States of America. ______________

CARNEY, Circuit Judge:

Defendants-Appellants Domenico Anastasio, Jonathan Delgado, Ismael Lopez,

and Matthew Smith (together, “Defendants”) were convicted by a jury on conspiracy

and racketeering charges relating to their involvement with the 10th Street Gang in

Buffalo, New York, and their participation in the murders of Brandon MacDonald and

2 Darinell Young. For these crimes, the United States District Court for the Western

District of New York (Arcara, J.) sentenced them each to life in prison. We now resolve

Defendants’ consolidated appeals in two opinions and an order, issued separately. We

address Anastasio’s challenges below.

Anastasio attacks his convictions and sentence on several grounds, only three of

which we must reach to resolve this appeal. First, he challenges the sufficiency of the

evidence supporting his three counts of conviction, one for racketeering conspiracy in

violation of 18 U.S.C. § 1962(d) (the “RICO Conspiracy Count”), and two for murder in

aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (the “VCAR Murder

Counts”). In Anastasio’s view, the government failed to prove that he knowingly

agreed to participate in a racketeering scheme (as required by the RICO Conspiracy

Count), or that he aided and abetted the murders of MacDonald and Young (as

required by the VCAR Murder Counts and the New York law murder enhancements to

the RICO Conspiracy Count). Anastasio also challenges two rulings made by the

District Court before trial. He contends, in particular, that the government exercised its

peremptory jury strikes on the basis of race, and that the District Court therefore erred

by rejecting Anastasio’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986). In

addition, Anastasio argues that the District Court abused its discretion when it denied

his motion to sever his trials from that of his co-defendants, maintaining that the

evidence against those individuals unfairly prejudiced the jury against him.

For the reasons that follow, we agree with Anastasio that the evidence adduced

at trial fell short of establishing his guilt as an accomplice to murder. To satisfy the actus

reus element of aiding and abetting under either federal or New York law, the

government must prove that a defendant’s conduct actually contributed to the success

of the specific crime that the defendant is charged with aiding and abetting. Here, we

see no basis in the record for concluding that Anastasio in any way prompted,

3 encouraged, or otherwise facilitated the commission of murder. Accordingly, we

conclude that insufficient evidence supported the jury’s guilty verdict on (a) the VCAR

Murder Counts and (b) the two “special factors” of the RICO Conspiracy Count that

charged Anastasio with intentionally causing the deaths of MacDonald and Young in

violation of New York Penal Law §§ 125.25(1) and 20.00 (the “Murder Enhancements”).

We reject, however, Anastasio’s sufficiency challenge to the RICO Conspiracy

Count itself, concluding that the government’s evidence adequately established his

knowing agreement to participate in a racketeering enterprise. Anastasio’s remaining

lines of attack, moreover, provide no basis for disturbing his conviction on that Count.

As discussed in greater detail below, we discern no error in the District Court’s rejection

of Anastasio’s Batson challenge and no abuse of discretion in its denial of his severance

motion. 1

We therefore AFFIRM Anastasio’s judgment of conviction as to the RICO

Conspiracy Count, REVERSE the judgment as to the two VCAR Murder Counts and the

two Murder Enhancements of the RICO Conspiracy Count, and REMAND the cause for

RESENTENCING.

BACKGROUND

In 2009, local, state, and federal officers began a coordinated investigation in

Buffalo, New York, into two rival street gangs operating there: the 10th Street Gang and

the 7th Street Gang. These efforts led to a series of arrests and criminal prosecutions,

1 Anastasio raises two additional challenges on appeal. First, he contends that the District Court erred by denying his post-verdict motion for a new trial, asserting that the motion should have been granted because insufficient evidence supported his liability as an accomplice to the murders of Young and MacDonald. Second, he attacks the length of his sentence, claiming that it violates his Eighth Amendment rights. Both challenges are made moot, however, by our decision to reverse the VCAR Murder Counts and the Murder Enhancements of the RICO Conspiracy Count. Thus, we do not address them further.

4 most of which ended with guilty pleas. Anastasio and his three co-defendants,

however, proceeded to trial. During its roughly five-week course, the jury heard

testimony from more than 50 witnesses, including ten members of the 10th Street Gang

who had earlier pleaded guilty and cooperated with the government (the

“Cooperators”). 2

I. Factual Background

Viewed in the light most favorable to the government, the evidence adduced at

trial tells the following story of Anastasio’s involvement in the 10th Street Gang and his

role in the murders of MacDonald and Young. See United States v. Dupree, 870 F.3d 62,

67 (2d Cir. 2017) (“Because defendants appeal their convictions following a jury trial,

our statement of the facts views the evidence in the light most favorable to the

government, crediting any inferences that the jury might have drawn in its favor.”). 3

A. The 10th Street Gang

The 10th Street Gang (the “Gang”) was comprised of adolescents and young

adults who lived in the vicinity of 10th Street in the West Side of Buffalo, New York. In

the 2000s, its members ran a narcotics-trafficking operation, “work[ing] together” to sell

heroin, cocaine, crack cocaine, marijuana, and ecstasy from street corners, houses, and a

park located within its territory. Smith App’x 2326.

2 The ten Cooperators were: (1) Sam Thurmond, (2) Michael Corchado-Jamieson, (3) Derrick Yancey, (4) Christopher Pabon, (5) Jimmy Sessions, (6) Jimmarlin Sessions, (7) Jairo Hernandez, (8) Kyle Eagan, (9) Douglas Harville, and (10) Nicholas Luciano. The language quoted in this section of the Opinion is drawn primarily from the government and defense attorneys’ examination and cross-examination of these Cooperators, which elicited testimony that was largely consistent as to the fundamental description of the Gang’s operations and Anastasio’s role in it.

3Unless otherwise noted, our Opinion omits all alterations, citations, footnotes, and internal quotation marks in quoted text.

5 At its peak, the Gang numbered about 100 members. Its structure, however, was

fairly loose and decentralized. Although its members sometimes met to discuss matters,

it did not have any designated leaders. Nor did it have “any formal or informal rules”

for being a member. Smith App’x 2846. Rather than “giv[ing] out assignments” to its

ranks, the Gang let individual members decide for themselves “what role” to play and

“how much work [to] put” into its operations. Smith App’x 2324, 2361. The process for

admitting new recruits was, likewise ad hoc: the Gang generally accepted into its fold

interested individuals who became “familiar with . . . the people in the neighborhood”

and who generally “vibe[d]” with other members. Smith App’x 2317.

The 10th Street Gang was not entirely unstructured, however. According to the

testimony of several Cooperators, the Gang organized itself around a loose hierarchy of

roles. The “shooters” and the “older guys” generally held the most respected positions,

followed by the “suppliers” and “sellers” of drugs, the “fighters,” and (at the bottom)

the “look-outs.” Smith App’x 2323, 2838, 4666. To move up the ladder, individuals had

to earn the respect of their peers by “putting in work” for the Gang. Smith App’x

2360-61. In this context, “work” included (among other things) selling drugs,

committing robberies, and fighting, stabbing, shooting, or killing rivals. Gang members

often learned of their associates’ work through word-of-mouth: when an individual

“did something” that could “earn [him] respect” within the Gang, he would typically

tell those “closest” to him, and from there, “the word would disseminate among the

various members.” Smith App’x 2361-62.

Members of the 10th Street Gang were also united by their shared commitment

to defend the Gang’s territory and drug business. As one Cooperator explained, the

“10th Street . . . had [a] reputation” to maintain. Smith App’x 3810. Gang members

worried that, if they did not instill fear and respect in the community, outsiders would

start selling narcotics in their neighborhoods and, as a result, siphon away the Gang’s

6 “drug profits.” Smith App’x 4129. Accordingly, the Gang used violence and

intimidation as its core strategy. Older gang members, for example, instructed younger

ones to “shoot rivals if they came into the neighborhood.” Smith App’x 2338-39.

Although the Gang did not patrol its territory in a scheduled or structured way,

individual members would take it upon themselves to stop and question anyone whom

they did not recognize. If an outsider attempted to sell drugs inside claimed territory,

the Gang would expel that person from the neighborhood—by force if necessary. And if

a rival gang or drug dealer “d[id] something” to a 10th Street member, “[t]here [was]

always retaliation.” Smith App’x 3810.

One of the Gang’s main rivals was the 7th Street Gang, a group that operated in

nearby neighborhoods. The two gangs fought regularly. In the early 2000s, these

skirmishes mostly took the form of brawls and fist fights. In around 2004, however, the

conflict escalated and began to include shootings. As the violence intensified, the

10th Street Gang began acquiring more firearms—amassing, by one Cooperator’s

estimate, more than 70 guns. Members would carry these firearms for protection

whenever they “sold drugs” or “hung around” together. Smith App’x 2331.

B. Anastasio’s Association with the 10th Street Gang

At trial, several Cooperators identified Anastasio as a member of the 10th Street

Gang. Anastasio apparently joined the Gang at some point in 2001 or 2002, after being

introduced to its members through Sam Thurmond (a Cooperator) and two of

Anastasio’s cousins. He continued to associate with the Gang until at least 2010, when

he attended a memorial rally for a deceased Gang member and can be seen in video

footage “[t]hrowing up the M” hand sign for “M-O-B,” another name used by the Gang.

Smith App’x 2426.

7 Over those years, Anastasio’s involvement with the Gang took a variety of

different forms. According to testimony from the Cooperators, Anastasio acted as “a

lookout” for “[a] lot” of the Gang’s drug deals. Smith App’x 2852. On several occasions,

he sold marijuana himself. Smith App’x 3646. In addition, Anastasio would bring

firearms to the 10th Street park—the Gang’s “home base”—to protect Gang members,

sometimes “hid[ing] [these weapons] in the grass.” Smith App’x 2847, 2853-54.

Eventually, Anastasio began fighting rival gangs. In around 2004, for example, he

joined a brawl between the 10th Street Gang and its 7th Street rival that included 80-100

total participants. Nothing in the record, however, suggests that Anastasio ever became

a shooter for the Gang, although he did make his 12-gauge shotgun available to other

members who, on at least one occasion, used that firearm to “sho[o]t up” a “known 7th

Street house.” Smith App’x 2457-61.

C. The Murders of Young and MacDonald

We now turn to the events leading to the murders of Young and MacDonald—

the heart of the government’s case.

At around midday on April 16, 2006, Anastasio was “hanging out” with ten to

fifteen members of the 10th Street Gang outside of “Sam’s store,” waiting to go to a

picnic scheduled for later that afternoon. Smith App’x 2888-92. Before they departed for

the picnic, however, several armed 7th Street members drove by in an “orange Chevy

Cobalt” and opened fire on the group, striking Delgado’s younger brother, Robert

Sanabria, in the stomach. Smith App’x 2892-95, 3015.

After an ambulance arrived to transport Sanabria to a hospital, members of the

10th Street Gang—including Anastasio—gathered at a nearby park. There, the group

discussed revenge. According to a Cooperator’s testimony, Delgado said that “he

wanted to . . . shoot back at the 7th Street members for shooting his brother,” adding

8 that anyone who “could get a gun” should “get it.” Smith App’x 2898, 2900. The group

agreed that those who wanted to participate in the retaliation would meet at

Thurmond’s apartment, where Thurmond lived with his brother, James Foxworth.

At some point during these discussions, one of the Gang members noticed a

woman (Stephanie Maldonado) and her boyfriend at the time (Juan Hernandez)

walking down a nearby street. Suspecting that Hernandez was from 7th Street, the

Gang members who were at the park confronted the couple. Maldonado denied that her

boyfriend was part of 7th Street, but after a heated conversation, some members of the

10th Street Gang, including Anastasio, knocked Hernandez to the ground and started

kicking him. When Maldonado attempted to intervene, the assailants “hit” and

“stomp[ed]” on her as well. Smith App’x 4471.

After this beating, which lasted about a “[m]inute and a half,” the 10th Street

group dispersed, with some (including Anastasio) reconvening later at Thurmond’s

apartment. Smith App’x 2465.22, 2903. There, Delgado restated the plan to “shoot at

[7th Street Gang members] because they had shot his brother,” and he told those

present (including Anastasio) that they needed to find guns. Smith App’x 2906. Several

individuals then left to collect firearms and, when they returned, deposited those guns

on Foxworth’s bed. Delgado, for example, brought a .44 caliber handgun that he owned,

along with a .380 caliber firearm that he had acquired from another Gang member at the

park; Corchado-Jamieson borrowed “a sawed-down .22 rifle” from his stepsister’s

boyfriend, Smith App’x 2907; Thurmond took out his shotgun; and several members of

the “Zolo Boys”—an “affiliate[]” of the 10th Street Gang—showed up at the apartment

with two shotguns of their own, Smith App’x 2465.40, 2465.46.

Then, at some point that night, Smith informed Thurmond that he would “drive

around the neighborhood” to locate members of the 7th Street Gang. Smith App’x

2465.39, 2465.48. Five to ten minutes later, Smith called Thurmond by phone, and said,

9 “[T]hey’re out there at Nick’s house on Pennsylvania. Go do what you all gotta do.”

Smith App’x 2465.48. Thurmond then relayed this information to those present

(including Anastasio), telling them that “if [they] wanted to do anything, that’s where

[they] had to go.” Smith App’x 2465.49.

Anastasio, however, had twice tried and failed to acquire a firearm for his own

use. 4 In his first attempt, Anastasio picked up the .44 caliber pistol that Delgado had

brought to the apartment. The gun—which had only a single bullet in it—was in poor

condition: its “pin kept coming out”; its “barrel was loose”; and its “handle . . . was kind

of messed up.” Smith App’x 3073-74, 4485. Even so, Douglas Harville—a shooter for the

Gang—demanded that Anastasio give him the weapon. Anastasio initially resisted,

saying, “[N]o, I’m going.” Smith App’x 4484. He eventually gave in, however, and

handed Harville the .44 caliber firearm. Later that night, Anastasio tried (without

success) to repurchase a shotgun that he had recently sold to one of the Zolo Boys.

Those who had firearms then proceeded to drive in two vehicles to 155

Pennsylvania Street, where “Nick’s house” was located. Having no firearm, Anastasio

remained in the apartment while the others drove to the scene of the crime.

When the shooters arrived at 155 Pennsylvania Street, they ran up and started

firing at a group of individuals gathered on and near the front porch. Harville

attempted to shoot the .44 caliber handgun that he had taken from Anastasio. “Nothing

happened,” however, when he “pulled the trigger”: the gun apparently malfunctioned

and left Harville unable to fire a single shot. 5 Smith App’x 4501. His associates, by

4At one point during the night, Anastasio also picked up a .22 Ruger that lay on Foxworth’s bed. Another 10th Street Gang member ultimately ended up with this gun, however, and nothing in the record suggests that Anastasio attempted to claim the .22 Ruger as his own.

5After the shooting, Harville concluded upon inspecting the .44 caliber gun that it had not fired because of a problem with “the firing pin.” Smith App’x 4510.

10 contrast, discharged approximately 50 bullets, killing MacDonald and Young, who were

innocent bystanders, and injuring four others. 6

The shooters then fled the scene, eventually making their way back to

Thurmond’s apartment, where they “talk[ed] about . . . what happened” and

coordinated their alibis. Smith App’x 2465.84, 2465.87-88. During their debriefing,

Anastasio—who was waiting at the apartment when the shooters returned—expressed

his frustration at being left behind, asking another Gang member: “[W]hy didn’t you let

me go? Why didn’t you let me go?” Smith App’x 4811-12. Concerned that law

enforcement might look for the shooters at the apartment, one of the 10th Street Gang’s

members (Corchado-Jamieson) offered to store the shooters’ weapons temporarily at his

house. Sometime later, everyone at the apartment went their separate ways.

II. Procedural History of the Prosecutions

On February 2, 2012, Anastasio was charged in a Fourth Superseding Indictment

(“the Indictment”) with one count of racketeering conspiracy in violation of 18 U.S.C.

§ 1962(d) (the “RICO Conspiracy Count”), and two counts of murder in aid of

racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and (2) (the “VCAR Murder

Counts”). 7 As part of the RICO Conspiracy Count, the Indictment also set forth two

“special factors” that charged Anastasio with intentionally causing the deaths of Young

and MacDonald in violation of New York Penal Law §§ 125.25(1) and 20.00 (“the

Murder Enhancements”). Smith App’x 5542-43. The VCAR Murder Counts each carried

6Medical and ballistic testimony attributed the death of MacDonald to a bullet fired from Defendant Delgado’s .380 firearm. The government could not conclusively identify the shooter who caused Young’s death.

7When discussing the charges against Anastasio, we refer to the redacted, renumbered indictment that was provided to the jury.

11 a mandatory minimum sentence of life in prison, 18 U.S.C. § 1959(a)(1), and the Murder

Enhancements raised the maximum penalty that Anastasio faced on the RICO

Conspiracy Count to a life term of imprisonment, 18 U.S.C. § 1963(a).

Of the dozens of individuals charged in connection with the investigation of the

Gang’s operations, only Defendants proceeded to trial. As relevant to this appeal,

Anastasio moved to sever his trials from the others, contending that his involvement

with the Gang was minimal and that he would be unfairly prejudiced by the jury’s

consideration of evidence presented against his co-defendants. The District Court

denied his motion, and the parties proceeded to jury selection. During that process, all

four Defendants raised Batson challenges, claiming that the government had exercised

its peremptory strikes on the basis of race when it moved to excuse two of the three

individuals of Hispanic origin who were present in the venire. The District Court

denied Defendants’ Batson challenges, and shortly after, on August 1, 2014, the parties

made their opening statements to the jury.

Following five weeks of trial, the jury found Anastasio guilty on all charges,

including on the Murder Enhancements of the RICO Conspiracy Count. Anastasio then

moved for a judgment of acquittal or, in the alternative, for a new trial under Rules 29

and 33 of the Federal Rules of Criminal Procedure. In both motions, Anastasio urged

that the jury lacked sufficient evidence to find him guilty for aiding and abetting the

murders of Young and MacDonald. In October 2017, the District Court denied these

post-trial motions, relying primarily on Anastasio’s decision to relinquish the .44 caliber

handgun to Harville. See United States v. Anastasio, No. 09-CR-331-A, 2017 WL 4875422,

at *1, 5-7 (W.D.N.Y. Oct. 30, 2017). By “handing th[is] gun to Harville,” the District

Court reasoned, Anastasio “aided the murderous retaliation at 155 Pennsylvania

Avenue for the earlier shooting of Robert Sanabria.” Id. at *6. Moreover, the District

Court continued, Anastasio gave up “his own claim to the gun” knowing that Harville

12 and the others “would retaliate murderously” and “intend[ing] that they do so.” Id. The

District Court therefore sustained the jury’s finding that Anastasio acted as an

accomplice to murder.

In February 2018, the court sentenced Anastasio to concurrent life terms of

imprisonment on each count of conviction—the mandatory minimum sentence for the

VCAR Murder Counts and the statutory maximum sentence for the RICO Conspiracy

Count. Anastasio then timely filed this appeal.

DISCUSSION

Anastasio’s appeal focuses primarily on the sufficiency of the evidence

underlying his convictions. He contends, in particular, that the government failed to

prove (1) that he aided and abetted the murders of MacDonald and Young, or (2) that

he agreed to participate in a racketeering scheme. We address these sufficiency

challenges first, before considering Anastasio’s additional claims that the District Court

erred by denying his Batson challenge and his motion to sever trials.

I. Sufficiency of the Evidence

A defendant bears a “heavy burden” when he attacks a criminal conviction on

the basis of insufficient evidence. United States v. Tanner, 942 F.3d 60, 64 (2d Cir. 2019).

This is because in this procedural posture our “standard of review is exceedingly

deferential.” United States v. Baker, 899 F.3d 123, 129 (2d Cir. 2018). In evaluating a

sufficiency challenge, we are required to “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.” United States v. Babilonia, 854 F.3d 163, 174

(2d Cir. 2017). We must sustain a jury’s verdict, moreover, unless the “evidence that the

defendant committed the crime is nonexistent or so meager that no reasonable jury

13 could find guilt beyond a reasonable doubt.” United States v. Ng Lap Seng, 934 F.3d 110,

130 (2d Cir. 2019). Thus, “[t]he ultimate question is not whether we believe the evidence

adduced at trial established [the] defendant’s guilt beyond a reasonable doubt, but

whether any rational trier of fact could so find.” United States v. Corbett, 750 F.3d 245, 250

(2d Cir. 2014) (emphasis in original).

A. VCAR Murder Counts and Murder Enhancements

We begin by considering whether the evidence supports the government’s

theory that Anastasio aided and abetted the murders of Young and MacDonald. To

resolve this question, we must consider the scope of accomplice liability under both

New York and federal law. This is because the Murder Enhancements of the RICO

Conspiracy Count charged Anastasio as an aider and abettor under New York Penal

Law § 20.00, whereas the VCAR Murder Counts charged Anastasio as an aider and

abettor under both New York Penal Law § 20.00 and 18 U.S.C. § 2. 8 As we discuss

below, moreover, these two aiding-and-abetting provisions are not coextensive.

Accordingly, we assess Anastasio’s criminal liability under each statute separately,

starting with 18 U.S.C. § 2.

1. Aiding and Abetting under 18 U.S.C. § 2

The general federal aiding-and-abetting statute provides in relevant part that

“[w]hoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C.

8The VCAR Murder Counts incorporated New York’s accomplice law because they charged Anastasio with murder in violation of New York Penal Law §§ 125.25(1) (“Murder in the second degree”) and 20.00 (“Criminal liability for conduct of another”). See United States v. Mapp, 170 F.3d 328, 335 (2d Cir. 1999) (observing that the VCAR murder statute, 18 U.S.C. § 1959, requires “the government to prove that the defendant committed murder—however that crime is defined by the underlying state or federal law”).

14 § 2(a). 9 As the Supreme Court recently explained in Rosemond v. United States, “[this]

provision derives from (though simplifies) common-law standards for accomplice

liability.” 572 U.S. 65, 70 (2014). Thus, “[a]s at common law, a person is liable under § 2

for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in

furtherance of that offense, (2) with the intent of facilitating the offense’s commission.”

Id. at 71.

Here, we conclude that the government’s evidence regarding Anastasio easily

satisfies the “intent requirement”—i.e., the mens rea element—of federal accomplice

liability. Id. at 77. According to the Cooperators’ testimony at trial, Anastasio was

present when the Gang planned its attack on 155 Pennsylvania Street. Knowing full

well the murderous intentions of the assembled group, Anastasio nonetheless

attempted to acquire a firearm of his own so that he could join the shooters. Based on

this conduct, a rational jury could conclude beyond a reasonable doubt that Anastasio

“wishe[d] to bring about” the murders of Young and McDonald—an entirely

foreseeable consequence of the retaliatory shooting. Id. at 76; see also United States v.

9The accompanying subsection, § 2(b), provides relatedly that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 18 U.S.C. § 2(b). The government does not appear to pursue the § 2(b) theory of accomplice liability on appeal. See Gov’t Br. 80-81 (arguing that Anastasio “intentionally aided” the shooters). In any event, we find no evidence in the record to suggest that Anastasio was the “cause in fact” of the murders of MacDonald or Young. See United States v. Concepcion, 983 F.2d 369, 383-84 (2d Cir. 1992) (“§ 2(b) adopts the general princip[le] of causation in criminal law that an individual (with the necessary intent) may be held liable if he is a cause in fact of the criminal violation, even though the result which the law condemns is achieved through the actions of innocent intermediaries.”).

15 Nelson, 277 F.3d 164, 197 (2d Cir. 2002) (holding that a jury may infer that “a person

intends the ordinary consequences of his voluntary acts”). Indeed, Anastasio admitted

as much when, after the shooters returned to the apartment and started talking about

the shooting, Anastasio complained, “[W]hy didn’t you let me go? Why didn’t you let

me go?” Smith App’x 4812. Thus, viewed in the light most favorable to the government,

the trial evidence leaves us with no doubt that Anastasio possessed the mens rea

necessary to be an accomplice to murder under § 2.

The more challenging question is whether Anastasio’s conduct satisfied the

“affirmative-act requirement”—that is, the actus reus element—of federal accomplice

liability. Rosemond, 572 U.S. at 74. In urging that it does, the government highlights that

Anastasio was present when the Gang planned its retaliatory attack; that he

participated in the assault of Maldonado and her boyfriend at the park; that at the

apartment he twice attempted to take control of one of the Gang’s weapons for his own

use; and that he handed the .44 caliber gun to Harville.

Anastasio responds that none of this conduct actually facilitated the commission

of the two murders. He asserts, for example, that although he was present for the

planning session, he did not offer any suggestions or make any contributions to forming

the Gang’s plans. He further maintains that his decision to relinquish the .44 caliber gun

to Harville did not advance the commission of the murders at all—stressing, in

particular, Harville’s unchallenged testimony that the handgun malfunctioned during

the shooting and that, as a result, Harville was unable to fire a single bullet. Thus,

Anastasio submits, although he may have been an accomplice to attempted murder, he

did not aid and abet the crimes that the Indictment charged him with: the murders of

MacDonald and Young.

The affirmative act requirement for accomplice liability raises no more than a

low hurdle for the government’s proof to clear, it is true. See United States v. Garguilo,

16 310 F.2d 249, 253 (2d Cir. 1962) (Friendly, J.) (“[E]vidence of an act of relatively slight

moment may warrant a jury’s finding participation in a crime.”). “In proscribing aiding

and abetting,” the Supreme Court has observed, “Congress used language that

comprehends all assistance rendered by words, acts, encouragement, support, or

presence.” Rosemond, 572 U.S. at 73. For their part, “courts have never thought relevant

the importance of the aid rendered.” Id. at 75. Thus, a defendant’s acts need “not

advance each element of the offense” to support federal accomplice liability; “all that

matters is that they facilitated one component.” Id. at 74-75. Nor must a defendant

provide more than a “minimal” amount of aid to qualify as an aider and abettor.

Id. at 73. Indeed, as one venerable treatise put it, “‘the quantity of assistance [is]

immaterial,’ so long as the accomplice did ‘something’ to aid the crime.” Id. (quoting

R. Desty, A Compendium of American Criminal Law § 37a, p. 106 (1882)) (emphasis in

original). This is because, as the Supreme Court has explained, “every little bit helps—

and a contribution to some part of a crime aids the whole.” Id.

At the same time, however, the actus reus element of federal accomplice liability

is not so capacious as to encompass any act taken in relation to some identified criminal

activity. Rather, our case law imposes at least two limitations. First, we have repeatedly

emphasized that, to convict a defendant of aiding and abetting a crime, the government

must prove that the defendant’s “efforts contributed towards [the] success” of the

crime, even if only at the margins. See, e.g., United States v. Huezo, 546 F.3d 174, 179

(2d Cir. 2008); United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999); United States v.

Labat, 905 F.2d 18, 23 (2d Cir. 1990); United States v. Wiley, 846 F.2d 150, 154 (2d Cir.

1988); United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir. 1985). The government

must prove that the defendant “furthered the criminal act.” United States v. Nusraty, 867

F.2d 759, 766 (2d Cir. 1989) (emphasis in original); see also United States v. Pipola, 83 F.3d

556, 562 (2d Cir. 1996) (“To be convicted of aiding and abetting, the defendant must

17 have taken some conscious action that furthered the commission of the underlying

crime.”). Said another way: while the quantum of assistance provided by an accomplice

may be trifling, it cannot be zero. Rather, to impose criminal liability under the federal

aiding-and-abetting statute requires proof that a defendant performed some act that

“directly facilitated or encouraged” the commission of a substantive crime. United States

v. Medina, 32 F.3d 40, 45 (2d Cir. 1994).

Second, to support accomplice liability, the assistance rendered by a defendant

must contribute to the success of “the specific underlying crime” for which the

defendant is charged with aiding and abetting. Pipola, 83 F.3d at 562. This is because

“aiding and abetting does not constitute a discrete criminal offense but only serves as a

more particularized way of identifying persons involved.” Smith, 198 F.3d at 383. In

other words, “when a person is charged with aiding and abetting the commission of a

substantive offense, the ‘crime charged’ is . . . the substantive offense itself.” United

States v. Oates, 560 F.2d 45, 55 (2d Cir. 1977); see also Smith, 198 F.3d at 383 (same). For

this reason, a defendant who has been indicted for aiding and abetting a particular

crime cannot be convicted based on evidence that he aided and abetted a second,

separate crime, even if related to the first. See United States v. Ledezma, 26 F.3d 636,

641-42 (6th Cir. 1994) (reversing a defendant’s conviction for possession with the intent

to distribute where the defendant was involved in shipping drugs, but did not aid or

abet the particular shipment that the indictment charged him with possessing); see also

Wiley, 846 F.2d at 155 (refusing to infer from his participation in one fraudulent scheme

that the defendant aided and abetted another “distinct,” but related, fraudulent

scheme). Instead, the government must prove that “the defendant consciously assisted

the commission of the specific crime [charged in the indictment] in some active way.”

Medina, 32 F.3d at 45.

18 Several of our decisions help illustrate the impact of these two limitations on the

types of acts that can support federal accomplice liability. In Garguilo, for example, we

considered whether a defendant’s mere presence at the scene of a crime could render

him liable for aiding and abetting that crime. 310 F.2d at 253. Generally, we said, the

answer is no, because accomplice liability requires a defendant to “do[] something to

forward the crime.” Id. at 254. We recognized, however, that in some cases, a

defendant’s presence may advance the commission of the crime: an example would be

“the attendance of a 250-pound bruiser at a shakedown as a companion to the

extortionist, or the maintenance at the scene of crime of someone useful as a lookout.”

Id. at 253. We therefore drew a distinction between those cases in which a defendant’s

presence “help[s]” or “positively encourage[s]” the commission of a crime and those

cases in which a defendant’s presence merely marks him as “a companion” to the actual

perpetrator of the crime, observing that the former, but not the latter, can serve as a

basis for accomplice liability under § 2. Id.

Later, in Labat, we addressed whether a defendant could be convicted as an

accomplice for possession of cocaine based on his unsuccessful efforts to procure drugs

for a co-conspirator. See 905 F.2d at 20-21, 22-23. The trial evidence showed that the

defendant (Labat) told his co-conspirator (Moon) that he would try to obtain and

personally deliver one kilogram of cocaine to Moon in New York. See id. at 20-21. While

Labat worked to acquire and transport the drugs, however, Moon and one of his

associates (Ray) obtained that same amount of cocaine from another source (Dentel) at a

lower price. Id. at 21. Moon then sold those drugs to an undercover police officer, and

on the basis of that sale, the government charged Labat with one count of possession

with intent to distribute. Id. Upon reviewing the trial record, however, we found no

evidence that Labat intended Moon to possess the specific kilogram of cocaine that

formed the basis of Labat’s possession charge—i.e., the cocaine obtained from Dentel

19 and sold to the undercover officer. See id. at 23. “Nor,” we continued, “was there any

evidence that Labat’s efforts made any contribution whatever to Moon’s obtaining the

cocaine from Dentel.” Id. Thus, although Labat plainly intended for Moon to possess a

kilogram of cocaine (and took steps to facilitate that criminal objective), we reversed

Labat’s conviction for possession with intent to distribute, concluding that insufficient

evidence supported the specific possession charge set forth in the indictment. See id.

For purposes of Anastasio’s appeal, however, our decision in Medina offers

perhaps the most relevant illumination of the affirmative act requirement for federal

accomplice liability. See 32 F.3d at 45-46 (Jacobs, J.). In that case, a jury convicted the

defendant (Medina) of, among other crimes, aiding and abetting the use or carriage of

firearms during an attempted robbery, in violation 18 U.S.C. §§ 924(c) and (2). See id.

at 42. According to the government’s evidence, Medina devised a plan for three of his

associates (Lopez, Villanueva, and Delgado) to rob Medina’s former employer. Id. at 42.

In the days before the heist, Medina asked Lopez whether he had a gun. Id. at 43. When

Lopez responded that Villanueva had a firearm (but Lopez apparently did not), Medina

gave Lopez a revolver and instructed him on how to use it. Id. Lopez turned out to be a

confidential informant, however, and he handed Medina’s revolver over to a

government agent before the robbery was attempted. Id.

Reviewing this evidence, we reversed Medina’s § 924(c) conviction on sufficiency

grounds, concluding that “Medina performed no act that specifically aided and abetted

the use or carrying of a gun during the attempted robbery.” Id. at 42. His conviction

could not rest on the revolver that Medina gave to Lopez, we explained, because that

firearm “was not carried or used by anyone during the attempted robbery.” Id. at 45.

Nor was it supported by the fact that “Villanueva and Delgado each carried a

semi-automatic weapon to the attempted robbery,” since we saw “no evidence that

Medina acted in any way to facilitate or encourage the use or carrying of those

20 weapons.” Id. We further observed that, while Medina was the mastermind behind the

robbery, “his plans did not entail a gun that was actually used or carried during the

attempted robbery.” Id. at 42. Thus, because nothing in the factual record suggested that

Medina aided or abetted the use or carriage of a firearm by any of the robbers, we

reversed his conviction under § 924(c). See id. at 45. 10

Applying this case law to the record before us, we conclude that Anastasio’s

conduct is not enough to satisfy the affirmative act requirement of federal accomplice

liability. Although Anastasio was present while members of the 10th Street Gang

discussed and formulated its scheme for revenge, nothing in the record suggests that

Anastasio spoke during—much less contributed to—this planning process. Nor has the

government offered evidence that Anastasio’s mere presence at Thurmond’s apartment

10We also rejected the notion that Medina aided and abetted the commission of a § 924(c) offense merely because he “performed an act to facilitate or encourage the robbery.” Medina, 32 F.3d at 45. In doing so, we reasoned that the “specific crime” prohibited by § 924(c) is the use or carriage of a firearm during and in relation to a predicate crime (e.g., a robbery), not the predicate crime itself. Id. Later, in Rosemond, the Supreme Court rejected this interpretation of § 924(c). See 572 U.S. at 75. Characterizing § 924(c) as a “double-barreled crime” that involves both “the use or carriage of a gun” and “the commission of a predicate (violent or drug trafficking) offense,” id. at 71, the Rosemond Court concluded that an individual could aid and abet a § 924(c) violation “by facilitating either [the predicate offense] . . . or the firearm use (or of course both),” id. at 74.

Thus, had Rosemond been handed down before we decided Medina, we likely would not have reversed Medina’s conviction in light of his contributions to the attempted robbery (i.e., the predicate offense). Rosemond casts no doubt, however, on Medina’s requirement that an aider-and-abettor must actually contribute to the success of the underlying offense. Indeed, the majority opinion in Rosemond repeatedly acknowledges that federal accomplice liability requires a defendant to “d[o] something to aid the [substantive] crime.” Id. at 73 (emphasis in original); see also, e.g., id. at 74 (“[W]e approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to satisfy the law’s conduct requirement that he had in other ways aided the deception.”); id. at 74–75 (“It is inconsequential . . . that [a defendant’s] acts did not advance each element of the offense; all that matters is that they facilitated one component.”).

21 encouraged or otherwise influenced the Gang to commit the murders. Indeed, as far as

we can tell from the record, Anastasio played no “role” in the execution of the

retaliatory shooting “beyond that of a companion” to the shooters, and even that he did

at a distance from the shooting. Garguilo, 310 F.2d at 253. He did not, for example,

supply any of the firearms used during the shooting; provide any information on the

location of the 7th Street Gang; serve as a look-out during the shooting; transport any of

the shooters to or from 155 Pennsylvania Street; or, after the crime, help shield the

shooters from police investigation.

The government points out that Anastasio attempted to acquire a firearm of his

own, and that he later held the .44 caliber handgun and relinquished it to Harville. But

the attempt to acquire a gun failed; 11 and as to the gun at issue, Anastasio did not bring

it to the apartment. Rather, he found it in a common pile of guns that others had

brought, and he unwillingly yielded it to a more senior member of the Gang. His

conduct therefore had no more impact on the event than Medina’s delivery of a gun to a

confidential informant, or Labat’s unsuccessful efforts to procure cocaine for Moon.

See Medina, 32 F. 3d at 45-46; Labat, 905 F.2d at 23. In those cases and in this one, the

defendant did nothing to “further[] the criminal act” or “contribute[] toward[] its

success.” Nusraty, 867 F.2d at 766; Zambrano, 776 F.2d at 1097. The Young and

MacDonald murders were—at least with respect to Anastasio—a “foregone

conclusion.” Medina, 32 F.3d at 46. The gun was always going to be available, and a

Gang member (likely Harville) was always going to bring it to the ambush.

11The government did not charge Anastasio with attempted aiding and abetting, a putative crime that some of our sister circuits have suggested does not even exist under federal law. See, e.g., United States v. Jayavarman, 871 F.3d 1050, 1056 (9th Cir. 2017); United States v. Samuels, 308 F.3d 662, 669 (6th Cir. 2002); United States v. Giovannetti, 919 F.2d 1223, 1227 (7th Cir. 1990).

22 2. Aiding and Abetting under New York Penal Law § 20.00

We need not tarry long on whether Anastasio aided and abetted the two murders

under New York Penal Law § 20.00. 12 Although the principles of accomplice liability

under New York law differ somewhat from the corresponding federal law, 13 they

impose at least two overlapping requirements that, together, resolve Anastasio’s appeal.

First, consonant with our interpretation of the federal aiding-and-abetting

statute, New York courts have held that under § 20.00, a defendant’s “mere presence at

the scene of a crime, even with knowledge that the crime is taking place, or mere

association with the perpetrator of a crime, is not enough for accessorial liability.”

E.g., People v. Lopez, 137 A.D.3d 1166, 1167 (2d Dep’t 2016); In re Tatiana N., 73 A.D.3d

186, 190-91 (1st Dep’t 2010); see also People v. Cabey, 85 N.Y.2d 417, 422 (1995) (“[A]

defendant’s presence at the scene of the crime, alone, is insufficient for a finding of

criminal liability.”). Indeed, at least one Appellate Division has gone further and found

no accomplice liability where a defendant was both present at the scene of the crime

and uttered words of encouragement to the perpetrator—conduct that would likely

qualify as aiding and abetting under federal law. Compare People v. Fonerin, 159 A.D.3d

12 Section 20.00 provides:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

N.Y. Penal Law § 20.00.

13 For example, § 20.10 of the New York Penal Law provides that a person is not criminally liable for an offense committed by another person “when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental to the commission of the offense.” People v. Manini, 79 N.Y.2d 561, 569 (1992). As the New York Court of Appeals has noted, however, the United States Code does not appear to contain a comparable exception for federal aiding-and-abetting liability. See id. at 572.

23 717, 719 (2d Dep’t 2018) (no accomplice liability where a defendant said, “Do that shit,

man,” right before his co-defendant set the victim on fire), with Garguilo, 310 F.2d at 253

(“[I]t is enough if the presence of the alleged aider and abettor has . . . positively

encouraged the perpetrator . . . .”).

Second, just as we have said that a defendant must actually contribute to the

success of a crime to qualify as an aider and abettor under 18 U.S.C. § 2, the New York

Court of Appeals has interpreted the state’s accomplice statute as requiring evidence

that “a defendant exhibited [some] calculated or direct behavior that purposefully

affected or furthered the [substantive crime].” People v. Bello, 92 N.Y.2d 523, 526 (1998).

This requirement, New York courts have explained, is “integral” to criminal liability

under § 20.00. E.g., id.; People v. Slade, 133 A.D.3d 1203, 1204 (4th Dep’t 2015). In line,

then, with our case law on federal accomplice liability, a defendant is not an aider-and-

abettor under New York law unless he “personally engaged in some voluntary act that

was specifically connected to the [actual perpetrator’s] misconduct,” People v. Byrne, 77

N.Y.2d 460, 467 (1991), and in doing so, he “intentionally and directly assisted in

achieving the ultimate goal of the [criminal] enterprise,” Bello, 92 N.Y.2d at 526.

Here, as discussed in detail above, nothing in the record suggests that

Anastasio’s conduct “affected or furthered” the murders for which he is charged with

aiding and abetting. Id. Rather, the government’s evidence merely establishes that

Anastasio associated with the perpetrators of those crimes in the hours leading up to

and then following the shooting. Thus, for the same reasons that Anastasio did not aid

or abet the two murders as a matter of federal law, we conclude that he did not act as an

accomplice within the meaning of New York Penal Law § 20.00. Accordingly, we

reverse the judgment of conviction that is based on the jury’s verdict as to the VCAR

Murder Counts and the Murder Enhancements of the RICO Conspiracy Count.

24 B. RICO Conspiracy Count

In contrast, we find no merit in Anastasio’s sufficiency challenge to his

conviction on the RICO Conspiracy Count. The conspiracy provision of RICO, 18 U.S.C.

§ 1962(d), “proscribes an agreement to conduct or to participate in the conduct of an

enterprise’s affairs through a pattern of racketeering activity.” United States v. Arrington,

941 F.3d 24, 36 (2d Cir. 2019). As the Supreme Court has explained, RICO’s definition of

an “enterprise” is “broad”: it generally encompasses any “group of persons associated

together for a common purpose of engaging in a course of conduct.” Boyle v. United

States, 556 U.S. 938, 944, 946 (2009). An enterprise, in turn, engages in “a pattern of

racketeering activity” when its members commit at least two racketeering acts—such as

murder, narcotics trafficking, or robbery—that both “[are] related to one another” and

“have a nexus to the enterprise” (the so-called “predicate acts”). United States v. Cain,

671 F.3d 271, 284 (2d Cir. 2012); see also 18 U.S.C. § 1961(1) (defining “racketeering

activity”).

Importantly, the crime of RICO conspiracy “centers on the act of agreement.”

United States v. Applins, 637 F.3d 59, 81 (2d Cir. 2011) (emphasis in original). Thus, in

contrast to RICO’s substantive offenses, see, e.g., 18 U.S.C. § 1962(c), “the Government

need not establish the existence of an enterprise” to “prove a RICO conspiracy,”

Arrington, 941 F.3d at 36. Nor must it establish that a pattern of racketeering activity

actually took place. See United States v. Zemlyansky, 908 F.3d 1, 11 (2d Cir. 2018) (“To

prove the pattern element, the government must show that two or more predicate acts

were, or were intended to be, committed as part of the conspiracy.”). Rather, the

government “need only prove that the defendant knew of, and agreed to, the general

criminal objective of a jointly undertaken scheme.” Arrington, 941 F.3d at 36-37.

Here, a rational factfinder could conclude beyond a reasonable doubt that

Anastasio agreed with other members of the 10th Street Gang to function as a unit for

25 the common purpose of selling drugs. As the grand jury charged in the Indictment, and

the government proved at trial, Gang members worked together to distribute drugs in

their territory, organizing themselves into a loose hierarchy of roles and responsibilities.

See Applins, 637 F.3d at 73 (“[A]n association-in-fact enterprise under RICO need not

have a hierarchical structure, a chain of command, or other business-like attributes.”).

In doing so, they viewed themselves as a single group united by a shared identity. To

protect both the profits and “reputation” of the 10th Street Gang, Smith App’x 3810,

members intended to—and did in fact—engage in a pattern of racketeering activity that

included murder, robbery, and the distribution of drugs.

The jury was entitled to find, moreover, that Anastasio knowingly agreed to join

and facilitate this racketeering scheme. The Cooperators identified Anastasio as an

active member of the Gang: one who served as a lookout during drug deals, sold

marijuana, and fought rival gangs. Although Anastasio’s actions at the apartment

where the murders were planned did not render him an accomplice to the murders, his

conduct there certainly provides a reasonable basis for inferring that Anastasio knew

about, and agreed to, “the general criminal objective” of the 10th Street Gang. Arrington,

941 F.3d at 36-37. In light of this and other evidence showing Anastasio’s efforts to

facilitate the Gang’s racketeering activity, we have no doubt that a reasonable jury

could convict him of RICO conspiracy.

In arguing to the contrary, Anastasio faults the government for purportedly not

proving that Anastasio himself engaged in—or intended to engage in—at least two acts

of racketeering. As we have explained on multiple occasions, however, “[s]o long as [a]

defendant knowingly agreed to facilitate the general criminal objective of a jointly

undertaken racketeering scheme, the government need not prove that he or she

knowingly agreed to facilitate any specific predicate act.” Zemlyansky, 908 F.3d at 11.

Rather, we have said, “it suffices to show that [the defendant] intended that the broad

26 goals of the racketeering scheme be realized, along with evidence that some (or any)

members of the conspiracy intended that specific criminal acts be accomplished.” Id.

Because we conclude that the government’s evidence against Anastasio satisfies this

standard, we reject Anastasio’s sufficiency challenge to his conviction on the RICO

Conspiracy Count.

II. Pretrial Rulings

We also identify no reversible error in the District Court’s decisions to deny

Anastasio’s Batson challenge and his motion to sever his trial from that of his co-

defendants.

As to the former, all four Defendants claim that the government exercised its

peremptory strikes on the basis of race when it moved to excuse two of the three

Hispanic individuals who were present in the venire. As we explain, however, in a

separate opinion resolving Delgado’s appeal, the District Court did not clearly err in

crediting the government’s statement of its non-discriminatory reasons for striking

those prospective jurors. See United States v. Farhane, 634 F.3d 127, 154 (2d Cir. 2011)

(“Such a ruling represents a finding of fact, which we will not disturb in the absence of

clear error.”). We now adopt and incorporate that Batson analysis here, reaffirming that

the record before us discloses no basis for disturbing the District Court’s Batson

determination.

As for severance, Anastasio urges that he was entitled to a separate trial because

of his purportedly minimal role in the 10th Street Gang. In Anastasio’s view, the vast

bulk of the evidence presented at trial had nothing to do with him, but rather concerned

his co-defendants’ violent acts and drug deals. This evidence, he contends, had a

prejudicial “spillover effect,” leading the jury to convict Anastasio “based not on what

he did but on what others around him did.” Anastasio’s Reply Br. 1.

27 A district court may sever trials if “the joinder of offenses or defendants . . .

appears to prejudice a defendant.” Fed. R. Crim. P. 14(a). The decision to sever,

however, is “committed to the sound discretion of the trial judge,” and we will not

override an exercise of that discretion absent “clear abuse.” United States v. Chang An-Lo,

851 F.2d 547, 556 (2d Cir. 1988). “It is not enough,” we have said, for a defendant “to

demonstrate that separate trials would have increased the chances of the [defendant’s]

acquittal.” United States v. Spinelli, 352 F.3d 48, 54-55 (2d Cir. 2003). Instead, the

defendant must “show prejudice so severe as to amount to a denial of a constitutionally

fair trial, or so severe that his conviction constituted a miscarriage of justice.” United

States v. Blount, 291 F.3d 201, 209 (2d Cir. 2002).

Anastasio has not carried this “heavy burden.” Chang An-Lo, 851 F.2d at 556. As

an initial matter, we conclude that much of the evidence presented at trial “would have

been admissible at a separate trial of [Anastasio], since it was relevant to proving the

nature and scope of the [RICO] conspiracy in which [all Defendants] were, to differing

degrees, involved.” Spinelli, 352 F.3d at 56. The testimony concerning the 10th Street

Gang’s structure and criminal activity, for example, helped to establish it as “a

racketeering scheme” that “involved, or by agreement between any members of the

conspiracy was intended to involve, two or more predicate acts of racketeering.”

Zemlyansky, 908 F.3d at 11. Likewise, the shooting at 155 Pennsylvania Street—the focal

point of the five-week trial—was probative of Anastasio’s agreement to join that

racketeering scheme. Although the government’s evidence concerning the retaliatory

shooting failed to establish Anastasio’s liability as an accomplice to murder, it certainly

illustrated his knowledge of, agreement to, and participation in the Gang’s criminal

objectives.

To be sure, the record reflects that Anastasio played a less prominent role in the

10th Street Gang than did some of his co-defendants. As we have explained elsewhere,

28 however, “differing levels of culpability and proof are inevitable in any multi-defendant

trial and, standing alone, are insufficient grounds for separate trials.” E.g., United States

v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983); United States v. Scarpa, 913 F.2d 993, 1015

(2d Cir. 1990). Indeed, not only are joint trials “constitutionally permissible” when they

place “defendants who are . . . marginally involved alongside those heavily involved”;

they are “often particularly appropriate in circumstances where the defendants are

charged with participating in the same criminal conspiracy.” Spinelli, 352 F.3d at 55.

That is what the District Court faced here.

We are reassured by the District Court’s express direction to the jury that it must

consider the guilt of each Defendant “separately,” and its reminder that “[a] person

may know or be friendly with a criminal without being a criminal himself.” Smith

App’x 5394, 5420. These instructions sufficiently addressed the risk of spillover

prejudice to Anastasio that joinder of Defendants’ trials might have produced. See

Chang An-Lo, 851 F.2d at 556-57 (concluding that similar jury instructions mitigated the

risk of spillover prejudice). Absent any particularized claim of prejudice, we are unable

to discern any abuse of discretion—much less a “clear abuse”—in the District Court’s

denial of Anastasio’s motion to sever. Scarpa, 913 F.2d at 1014.

CONCLUSION

For the reasons set forth above, we AFFIRM Anastasio’s judgment of conviction

as to the RICO Conspiracy Count; we REVERSE the judgment as to the two VCAR

Murder Counts and the two Murder Enhancements, and direct the District Court to

enter a judgment of acquittal on the VCAR Murder Counts and the Murder

Enhancements; and we REMAND the cause for RESENTENCING.