24-923 (L) United States v. Garcia
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 TO 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 23rd day of May, two thousand twenty-five.
PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 24-923 (Lead), 24-1468 (Con) JONATHAN GARCIA, CHRISTOPHER NELSON,
Defendants-Appellants,
MARK WOODS, CARMELO VELEZ, CHRISTOPHER RODRIGUEZ, ANGEL LOPEZ, CHRISTOPHER LUM, ALBERTO BORGES, DEESHUNTEE STEVENS, DIEGO MATEO, LUIS SEPULVEDA, EMMANUEL BONAFE, JOSIAH VELAZQUEZ, JUAN HERNANDEZ, JESUS HERNANDEZ, HEINNER SOLIS, EZEQUIEL OSPINA, RAIMUNDO NIEVES, HECTOR BONAPARTE, MICHAEL GONZALEZ, JUPANKY PIMENTEL, WILLIAM GONZALEZ, RICARDO RICUARTE, RAUL CUELLO, PAUL CUELLO,
Defendants. *
_________________________________________
FOR APPELLEE: PATRICK R. MORONEY, Assistant United States Attorney (Adam S. Hobson, David J. Robles, Stephanie Simon, Assistant United States Attorneys, on the brief), for Danielle R. Sassoon, United States Attorney for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT GARCIA: JOHN S. WALLENSTEIN, Law Office of John S. Wallenstein, Garden City, NY.
FOR DEFENDANT-APPELLANT NELSON: STEPHANIE M. CARVLIN, Law Office of Stephanie Carvlin, New York, NY.
* The Clerk’s office is respectfully directed to amend the caption as reflected above.
2 Appeal from a judgment of the United States District Court for the Southern
District of New York (Caproni, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments entered on April 5, 2024, and
May 15, 2024, are AFFIRMED.
Defendant-Appellant Jonathan Garcia appeals after a jury trial from a
judgment of conviction of racketeering conspiracy, in violation of 18 U.S.C.
§§ 1962(d) and 1963; murder in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(1); narcotics conspiracy, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A);
and brandishing a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A). Defendant-Appellant Christopher Nelson appeals
from a judgment revoking his supervised release and sentencing him for violating
the conditions of his supervised release. Because these appeals involve distinct
challenges to unrelated judgments, we address each separately. We assume the
parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision.
3 I. Garcia
We consider in turn Garcia’s arguments that the district court improperly
admitted hearsay testimony, that the evidence was insufficient to support his
murder in aid of racketeering conviction, and that venue was improper.
A. Hearsay
Garcia argues that the district court impermissibly admitted as
coconspirator statements out-of-court statements about the murder by declarants
who were not part of a conspiracy to commit the charged murder. See Fed. R. Evid.
801(d)(2). Garcia does not identify the specific statements made by the five
cooperating former fellow Latin Kings members he claims were admitted in error.
“We review a district court’s evidentiary rulings under a deferential abuse
of discretion standard.” United States v. Kandic, 134 F.4th 92, 99 (2d Cir. 2025). 1 A
statement “made by the party’s coconspirator during and in furtherance of the
conspiracy” is not a hearsay statement. Fed. R. Evid. 801(d)(2)(E). “To admit a
statement under the coconspirator exception to the hearsay definition, a district
court must find two factors by a preponderance of the evidence: first, that a
1 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
4 conspiracy existed that included the defendant and the declarant; and second, that
the statement was made during the course of and in furtherance of that
conspiracy.” United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999).
We generally review Garcia’s challenge for plain error because he did not
contemporaneously object to the vast majority of the contested statements at trial,
even though the district court deferred to trial definitive rulings on the
government’s pretrial motions. United States v. Simels, 654 F.3d 161, 168 (2d Cir.
2011) (“[I]f a defendant fails to make a sufficient objection in the district court, the
evidentiary claim is reviewed . . . under the plain error standard.”); cf. United States
v. Yu-Leung, 51 F.3d 1116, 1121 (2d Cir. 1995) (holding that a pretrial motion
seeking to exclude evidence may preserve an objection where, among other things,
it “is ruled upon without equivocation by the trial judge”). Plain error is shown
when “(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights, which
in the ordinary case means it affected the outcome of the district court proceedings;
and (4) the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010).
5 To the extent that Garcia argues all after-the-fact, out-of-court statements
about the murder made by fellow Latin Kings members who were not themselves
involved in the murder are necessarily inadmissible, we reject his argument as
overbroad. “[S]tatements relating past events meet the in-furtherance test if they
serve some current purpose in the conspiracy, such as to promote cohesiveness.”
United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994). And Garcia has failed to
identify for our review any specific statements he contends the district court
admitted in error.
Moreover, even if Garcia had identified specific statements that were
erroneously admitted under Federal Rule of Evidence 801(d)(2)(E), we see no plain
error here. Three cooperating witnesses testified that Garcia admitted committing
the murder; another former Latin King testified that he personally saw Garcia
firing a gun into the crowd; a cooperating witness recorded Garcia’s admission to
the murder; the murder was captured on video; a store clerk who sold him gloves
shortly before the murder testified that Garcia told him not to show the police the
store’s security camera footage; and Garcia’s own social media posts alluded to
the murder. Given the strength of the undisputedly admissible evidence before
the jury, any (unidentified) hearsay statements admitted by the district court did
6 not “seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019). 2
B. Sufficiency of the Evidence
On the charge of murder in aid of racketeering, in violation of 18 U.S.C. §
1959(a)(1), the government had to prove:
(1) that the [o]rganization was a RICO enterprise, (2) that the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.
United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). Garcia argues the
government failed to prove that: (1) he committed the murder with the requisite
state of mind and (2) he did so for the purpose of maintaining or increasing his
position in the Latin Kings. We disagree.
2 Garcia did object at trial to the admission of one out-of-court statement by a coconspirator offered by a former Latin Kings member who stated that, in response to the witness’s desire to get a team to look for Garcia because he was not coming to meetings, a leader of the “Black Mob” tribe of the Latin Kings told him that Garcia had to “lay low key” because of the murder. Tr. 595– 96. To the extent Garcia challenges the district court’s admission of this statement, we conclude it was not error. The district court could readily conclude that the Black Mob leader made the statement for the purposes of promoting cohesiveness and furthering the goals of the Black Mob at a time when Garcia was a member of that tribe. See United States v. Salerno, 868 F.2d 524, 535– 37 (2d Cir. 1989).
7 We must “sustain the jury’s verdict if, crediting every inference that could
have been drawn in the government’s favor and viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Capers,
20 F.4th 105, 113 (2d Cir. 2021) (emphasis in original).
Because Garcia never challenged the sufficiency of the evidence on either of
these grounds, we review for plain error. United States v. Orelien, 119 F.4th 217,
222 (2d Cir. 2024).
The evidence here was sufficient to establish that Garcia acted with intent
or, at a minimum, acted recklessly with a “depraved indifference to human life,”
either of which could support the jury’s verdict. United States v. Garcia, No. 19-cr-
862, Dkt. 982 at 18. Garcia brought a gun to a meet-up with a rival tribe; purchased
gloves shortly before the meeting, warning the store clerk not to share security
footage; grabbed a gun from a confederate as the victim and others—none of
whom were armed—fled; and, most significantly, shot the fleeing victim in the
back.
From this evidence, a jury could find beyond a reasonable doubt that when
Garcia grabbed the gun and started shooting directly at his fleeing rivals, he
8 intended to “cause the death of another person.” N.Y. Penal Law § 125.25. And it
could conclude that he “recklessly engage[d] in conduct which create[d] a grave
risk of death to another person.” Id.; see also People v. Suarez, 6 N.Y.3d 202, 214
(2005) (describing “firing into a crowd” as a “[q]uintessential example[]” of
depraved indifference).
Likewise, the jury could infer that Garcia committed his violent crime in
furtherance of his membership in the criminal enterprise. Concepcion, 983 F.2d at
381. This motive does not need to be “the defendant’s sole or principal motive.”
Id. Taken in the light most favorable to the government, the evidence showed that
Garcia shot at members of a rival tribe in part to prevent being stripped of his Latin
Kings status—in other words, to maintain his position in the Latin Kings. The jury
heard additional evidence that the murder increased Garcia’s reputation within
the Latin Kings and was part of why he was welcomed into the Black Mob tribe of
the gang. And the jury could infer that Garcia knew the murder benefited his
reputation, which is why he bragged about it on social media.
C. Venue
Venue is proper in the district in which the crime was committed, and the
government has the burden of proving proper venue by a preponderance of the
9 evidence. See United States v. Chow, 993 F.3d 125, 143 (2d Cir. 2021). Because the
facts underlying venue are not in dispute, this venue challenge raises a question
of law, which we review without deference to the district court’s reasoning. United
States v. Thompson, 896 F.3d 155, 171 (2d Cir. 2018).
Murder in aid of racketeering is a continuing offense, so venue is proper
both where the violent crime occurred and where the relevant racketeering
activities occurred. See United States v. Saavedra, 223 F.3d 85, 91–92 (2d Cir. 2000)
(“The racketeering element . . . is not a mere ‘circumstance’ of the [violent crimes
in aid of racketeering activity] offense—it is an essential element of that crime[] . .
. because the assault was attempted in furtherance of their position within that
racketeering enterprise.” (emphasis in original)).
Garcia does not dispute that racketeering activities occurred in the Southern
District of New York. And the record reflects that the Latin Kings held meetings
and conducted racketeering activities in Manhattan and the Bronx. Moreover, the
Black Mob—which allowed Garcia to join partially based on his enhanced
reputation due to the murder—operated primarily in the Bronx. For the reasons
set forth in Saavedra, that’s sufficient to support venue in the Southern District for
10 the murder in aid of racketeering charge, even if the murder itself occurred in the
Eastern District.
II. Nelson
Nelson pled guilty to racketeering conspiracy; narcotics conspiracy; and
possessing, brandishing, and discharging a firearm in furtherance of a drug
trafficking crime. On September 21, 2023, the district court sentenced him to three
concurrent sentences of time served plus a five-year term of supervised release.
On September 30, a matter of days after his release from prison, the Suffolk County
Police Department found the body of a man who appeared to have died from an
overdose. The decedent’s cell phone included text messages with Nelson
apparently reflecting that Nelson was arranging to sell him heroin. Using the
decedent’s phone, an undercover officer arranged to buy heroin from Nelson.
Nelson sold an undercover officer fentanyl-laced heroin on October 2 and 4.
On October 19, 2023, the Probation Office petitioned the court to issue a
warrant, detailing multiple violations relating to selling narcotics and for failing
to report to the Probation Office. Nelson admitted to one violation of selling
narcotics to an undercover officer and the district court sentenced him to five years
of incarceration, to be served consecutive to any state court sentence. On appeal,
11 he challenges the court’s sentence for his violation of his supervised release terms
on the bases that his counsel was ineffective and the district court improperly
focused on the seriousness of his conduct rather than the breach of the court’s trust
reflected by his violation.
A. Ineffective Assistance of Counsel
Nelson argues his trial counsel was ineffective because, in his sentencing
arguments, counsel improperly emphasized that he was personally angered and
disappointed by Nelson’s violations of supervised release. According to Nelson,
his lawyer’s statements deprived him of his Sixth Amendment right to counsel
and constituted structural error.
Ordinarily, we would decline to hear an ineffective assistance of counsel
claim raised on direct appeal, allowing it to be raised under 28 U.S.C. § 2255.
United States v. Adams, 768 F.3d 219, 226 (2d Cir. 2014); see also Massaro v. United
States, 538 U.S. 500, 504–05 (“[I]n most cases a motion brought under § 2255 is
preferable to direct appeal for deciding claims of ineffective assistance. When an
ineffective-assistance claim is brought on direct appeal, appellate counsel and the
court must proceed on a trial record . . . often incomplete or inadequate for this
purpose.”). However, because Nelson’s argument is that counsel’s statements on
12 their face deprived Nelson of his Sixth Amendment rights, this is the rare case in
which we exercise our discretion to address the ineffective assistance of counsel
claim on direct appeal.
To establish a claim for ineffective assistance of counsel, a defendant must
show that (1) “counsel’s representation fell below an objective standard of
reasonableness” and (2) “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). However, “certain errors
are deemed structural and require reversal because they cause fundamental
unfairness, either to the defendant in the specific case or by pervasive
undermining of the systemic requirements of a fair and open judicial process.”
Weaver v. Massachusetts, 582 U.S. 286, 301 (2017).
Nelson fails at the first Strickland prong. “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689. Here, we cannot conclude as a matter of
law that counsel’s conduct was unreasonable. Given the severity of Nelson’s
13 breach of the court’s trust, counsel could reasonably have made a strategic
decision to expressly acknowledge and share the judge’s disappointment with
Nelson’s conduct and then model for the court his own process of moving beyond
that reaction to a more considered recognition of the factors that led to Nelson’s
conduct.
B. Procedural Reasonableness
We review the procedural reasonableness of a sentence imposed for a
violation of supervised release “under a deferential abuse-of-discretion standard.”
United States v. Degroate, 940 F.3d 167, 174 (2d Cir. 2019). “A district court commits
procedural error where it fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails
to consider the [relevant statutory] factors, selects a sentence based on clearly
erroneous facts, or fails adequately to explain the chosen sentence.” Id. Because
Nelson did not object below, we review for plain error. Id. 3
3 Nelson invokes caselaw establishing that we sometimes apply a “relaxed” form of plain error review to sentencing errors “because the cost of correcting an unpreserved error is not as great as in the trial context.” United States v. Haverkamp, 958 F.3d 145, 149 (2d Cir. 2020). The government argues this is not the kind of case in which we have applied such a relaxed standard. See United States v. Matta, 777 F.3d 116, 121–22 (2d Cir. 2015). Because we would reach the same result under either standard, we need not decide whether “relaxed” plain error review applies.
14 Nelson argues that the district court procedurally erred when it punished
him based primarily on the severity of his conduct rather than his breach of the
court’s trust. “[A] sentence for a violation of supervised release should primarily
sanction the defendant’s breach of trust, not the conduct constituting the violation
itself.” United States v. Ramos, 979 F.3d 994, 1002 (2d Cir. 2020). The provision
governing the revocation of a term of supervised release—18 U.S.C. § 3583(e)—
instructs the district court to “consider[]” certain sections of § 3553(a), including
§ 3553(a)(1), addressing “the nature and circumstances of the offense,” but not
§ 3553(a)(2)(A), which deals with the “seriousness of the offense.” Therefore,
Nelson argues, the district court committed procedural error by saying: “In terms
of what is most important, we start with the nature and seriousness of the
violation.” App’x 185.
Viewing the record as a whole, however, the court did emphasize Nelson’s
breach of trust, characterizing it as “substantial,” id. at 187, and describing the
court’s disappointment that Nelson had squandered the opportunity the court had
extended to him in his underlying sentence.
Moreover, our caselaw and the Sentencing Guidelines do not prohibit a
judge from considering the seriousness of a violation. See U.S.S.G. Ch. 7, Part A,
15 ¶ 3(b) (“[A]t revocation the court should sanction primarily the defendant’s breach
of trust, while taking into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.”); United States v.
Williams, 443 F.3d 35, 48 (2d Cir. 2006) (“[T]he court in sentencing a defendant for
violation of supervised release may properly consider the seriousness of his
offense.”).
The district court here did not consider solely the seriousness of Nelson’s
offense; it also considered Nelson’s breach of trust, how soon after his release he
committed the violation, and the need for adequate deterrence and incapacitation.
On this record, we cannot conclude the district court committed a plain error—
even under a “relaxed” standard—when it imposed its sentence.
* * *
For the above reasons, the district court’s judgments are AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court