United States v. Londonio

• Court: Court of Appeals for the Second Circuit
• Decided: August 13, 2024
• Docket: 20-2479
• Status: Unpublished

Opinion

20-2479-cr (L) United States v. Londonio

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 13th day of August, two thousand twenty-four.

PRESENT: JOSÉ A. CABRANES, MARIA ARAÚJO KAHN, Circuit Judges, KATHERINE POLK FAILLA, District Judge. ∗ __________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 20-2479-cr (L); 20-2714 (CON) 20-2722 (CON); 20-2980 (CON)

CHRISTOPHER LONDONIO, TERRANCE CALDWELL, MATTHEW MADONNA, STEVEN CREA, SR.,

∗ Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by designation.

1 Defendants-Appellants. * ___________________________________________

FOR DEFENDANT-APPELLANT LONDONIO: CLARA KALHOUS, New York, NY.

FOR DEFENDANT-APPELLANT CALDWELL: BRIAN A. JACOBS (Daniel P. Gordon, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY.

FOR DEFENDANT-APPELLANT MADONNA: JOSHUA L. DRATEL, Law Offices of Dratel & Lewis, New York, NY (Andrew Patel, White Plains, NY, on the brief).

FOR DEFENDANT-APPELLANT CREA, SR.: BRENDAN WHITE, White & White, New York, NY (Anthony DiPietro, Law Offices of Anthony DiPietro, White Plains, NY, on the brief).

FOR APPELLEE: HAGAN SCOTTEN, Assistant United States Attorney (Alexandra N. Rothman, Celia V. Cohen, David Abramowicz, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from July 30, 2020, judgments of the United States District Court for the

Southern District of New York (Cathy Seibel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the July 30, 2020, judgments of the district court are AFFIRMED.

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

2 Defendants-Appellants Christopher Londonio, Terrance Caldwell, Matthew

Madonna, and Steven Crea, Sr. (collectively, “Defendants”) appeal from judgments of

conviction entered on July 30, 2020, after a jury found them guilty of various crimes

related to their participation in the Lucchese 1 Family of La Cosa Nostra. 2 The district

court sentenced all four Defendants principally to two consecutive terms of life

imprisonment, with Caldwell receiving an additional, consecutive term of ten years’

imprisonment.

Defendants raise—either jointly or independently—a myriad of challenges in

appealing their convictions. Defendants jointly raise claims relating to the sufficiency of

the evidence, the admission of co-conspirator statements, and the district court’s denial

of their motion for a new trial based on post-trial disclosures. With respect to pre-trial

1 We note that the parties and this Court have at various times referred to the Family as the “Lucchese Family” or the “Luchese Family.” Compare United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999), Crea Br. at 3, Londonio Br. at 6, and Caldwell Br. at 1 (“Lucchese Family”) with United States v. Avellino, 136 F.3d 249, 251 (2d Cir. 1998), Gov’t Br. at 3, and Madonna Br. at 3 (“Luchese Family). Deferring to the spelling on the docket, we adopt “Lucchese Family” for purposes of this summary order.

2 Specifically, the jury convicted all Defendants of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d) (Count One); conspiracy to commit murder in aid of racketeering in violation of id. § 1959(a)(5) (Count Two); murder in aid of racketeering in violation of id. § 1959(a)(1) (Count Three); and use of a firearm resulting in death in furtherance of the murder charged in Count Three in violation of id. § 924(j)(1) (Count Seven). Londonio was also convicted of conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 846, 841(b)(1)(C) (Count Six). Caldwell was also convicted of assault and attempted murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(3), (5) (Count Four), and use of a firearm, which was discharged, in furtherance of the assault and attempted murder charged in Count Four in violation of id. § 924(c)(1)(A)(iii) (Count Eight).

3 motions, Crea challenges the district court’s denial of his motion for inspection of grand

jury minutes. Londonio raises an ineffective assistance of counsel claim from the district

court’s denial of his request for an adjournment of trial because an attorney on his defense

team, who died well before trial, was allegedly conflicted. Crea raises claims relating to

the district court’s denial of his mid-trial motion for severance. Madonna and Crea

challenge the district court’s jury instructions relating to Pinkerton liability. Finally,

Madonna, Crea, and Londonio each raise claims of error relating to their respective

sentences. We conclude that all of Defendants’ challenges lack merit, and therefore affirm

the judgments of the district court. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, which we recite only as

necessary to explain our decision.

A. Sufficiency of the Evidence Claims

Defendants assert that there was insufficient evidence to convict them of the

murder and attempted murder charges. “Although we review sufficiency of the evidence

claims de novo, a defendant mounting such a challenge bears a heavy burden.” United

States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per curiam) (internal quotation marks and

citation omitted). “[W]e will not disturb a conviction on grounds of legal insufficiency of

the evidence at trial if any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Bruno, 383 F.3d 65, 82 (2d Cir.

2004) (quoting United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001)).

4 1. Murder of Michael Meldish

Defendants argue that there was insufficient evidence to support their convictions

for Counts Two, Three, and Seven—the counts related to the murder of Michael Meldish.

Madonna and Crea argue that there was insufficient evidence to show that they had any

involvement in Meldish’s murder. Londonio and Caldwell argue that a rational jury

could not have concluded that Caldwell committed the murder to gain or maintain

membership in the Lucchese Family, as is required for conviction.

Viewing the evidence as a whole, we conclude that a rational juror could have

found that Madonna and Crea ordered the murder of Meldish, which was subsequently

carried out by Londonio and Caldwell for the purpose of maintaining their positions in

the Lucchese Family. See id. (“To convict a defendant of murder in aid of racketeering,

the [g]overnment must prove that he committed the charged racketeering acts ‘for the

purpose of gaining entrance to or maintaining or increasing [his] position’ in a

racketeering enterprise.” (quoting 18 U.S.C. § 1959(a))).

The government presented evidence showing, inter alia, that as boss and

underboss of the Lucchese Family, Madonna and Crea, respectively, ordered, through a

typical Mafia chain of command, Meldish’s murder over Meldish’s refusal to collect

money he owed to Madonna. The evidence also showed that Londonio and Caldwell

had long-time dealings with the Lucchese Family, the former as an associate and later a

soldier, and the latter as an associate, and would be expected to carry out orders received

5 from the boss or underboss. Finally, ample physical evidence showed that Londonio and

Caldwell were with Meldish the night that he was murdered, and that Caldwell was the

triggerman for the shooting.

2. Attempted Murder of Enzo Stagno

Caldwell challenges his conviction of Counts Four and Eight—the counts related

to the attempted murder of Enzo Stagno—arguing again that there was insufficient

evidence that his motivation in doing so was in furtherance of the conspiracy. Evidence

showed that the shooting of Stagno occurred as a result of a years-long dispute between

the Lucchese Family and its rival, the Bonanno Family. Caldwell carried out the shooting

with the assistance of two Lucchese Family associates. A jury could reasonably infer that

Caldwell committed the Stagno shooting because he was expected to do so as an associate

of the Lucchese Family. 3 See United States v. Arrington, 941 F.3d 24, 38 (2d Cir. 2019)

(“While [defendant’s] position was, to be sure, a low and peripheral one, any position is

enough.”).

B. Challenged Evidentiary Rulings

Defendants challenge several of the district court’s evidentiary rulings. Such

rulings are reviewed for abuse of discretion and will be reversed “only when the court

has acted arbitrarily or irrationally.” United States v. Nektalov, 461 F.3d 309, 318 (2d Cir.

3 Caldwell’s challenge to his conviction on Count One, engaging in a racketeering conspiracy, relies on the same arguments he advanced with respect to the Meldish murder and Stagno attempted murder charges and is therefore unavailing.

6 2006) (internal quotation marks omitted). “Alleged violations of the Confrontation

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

459 F.3d 190, 195 (2d Cir. 2006). An erroneous evidentiary ruling does not warrant a new

trial, however, if the error was harmless—that is, if we determine with “fair assurance

that the jury’s judgment was not substantially swayed by the error.” United States v.

Paulino, 445 F.3d 211, 219 (2d Cir. 2006) (internal quotation marks omitted); see also Fed.

R. Crim. P. 52(a).

1. Admission of Co-Conspirator Statements

a. Londonio’s Statements to Evangelista

While detained before trial, Londonio made various statements to a fellow inmate,

David Evangelista, that implicated his co-Defendants in the Meldish murder. Evangelista

testified, over Defendants’ objections, to the content of those statements. Madonna, Crea,

and Caldwell claim that the district court erred in admitting those statements.

After reviewing the trial transcripts and record, we find that Londonio’s

statements to Evangelista about the Meldish murder satisfied each element of Fed. R.

Evid. 804(b)(3) as statements against interest and were thus properly admitted. We have

repeatedly upheld the admission of statements about criminal conduct committed jointly

by the declarant and a defendant, including statements about the motive for the crime or

a particular defendant’s role in the crime. See United States v. Williams, 506 F.3d 151, 155

(2d Cir. 2007) (declarant’s statement that murder victim “was killed because the ‘Dude

7 owed’ money” was properly admitted as a statement against interest). The evidence

established that Londonio participated directly in a violent crime and made statements

to Evangelista implicating himself, as well as Madonna and Crea, who ordered—but did

not personally commit—that offense. The statements were sufficiently self-inculpatory. 4

See United States v. Olivera, 797 F. App’x 40, 42–44 (2d Cir. 2019) (summary order) (where

declarant committed robbery that resulted in death of victim, there was no error in

admitting statement that co-defendant ordered the robbery).

Londonio’s statements to Evangelista were also corroborated by other testimony

and exhibits introduced at trial. In addition to a plethora of physical evidence placing

Londonio and Caldwell at the scene of the crime on the evening of the Meldish murder,

other witnesses testified about the debt owed by Meldish to Madonna as well as Madonna

and Crea’s roles in ordering the murder. Furthermore, an expert on the Mafia testified to

the chain of command in the Lucchese Family. See United States v. Wexler, 522 F.3d 194,

202–03 (2d Cir. 2008) (evidence found to be more trustworthy when corroborated by non-

hearsay testimony and other evidence).

4Crea also argues that Londonio was available to testify, and thus his testimony, rather than Evangelista’s testimony, should have been admitted. We agree with the district court that Londonio’s mid-trial offer to testify was not made in good faith, given that he was unwilling to waive his Fifth Amendment rights unless he was tried separately, and prior to, his co-Defendants.

8 b. Londonio’s Statements to Foti

During the trial, Joseph Foti testified about statements Londonio made regarding

Meldish’s debt to Madonna and the relationship between Meldish and Madonna—

specifically, Madonna’s reaction to a beating of Meldish by members of the Bonanno

Family. Madonna challenges the admission of Londonio’s statements, claiming that his

knowledge of those events was not sufficiently established.

Even if we were to assume that the testimony was improperly admitted, any error

was harmless because the same evidence was admitted through other witnesses.

Jonathan Bash and Anthony Zoccolillo both testified about Meldish’s debt to Madonna,

and other witnesses testified that the relationship between Madonna and Meldish had

become strained before Meldish’s murder. See Campaneria v. Reid, 891 F.2d 1014, 1022 (2d

Cir. 1989) (finding that where evidence is “entirely cumulative,” its admission, even if

erroneous, is harmless beyond a reasonable doubt).

c. Datello’s Recorded Statements

Madonna contends that the district court erred by admitting, over Madonna’s

objection, recorded statements made by Joseph Datello explaining his need to sell drugs

in order to repay a $200,000 debt to the Lucchese Family because Madonna and Crea had

Meldish killed over his refusal to pay a debt. Datello’s recorded statements were

admitted as co-conspirator statements, under Fed. R. Evid. 801(d)(2)(E), made in

furtherance of the charged racketeering conspiracy. The district court reasoned that

9 Datello and Madonna were co-conspirators insofar as Datello was engaging in drug

transactions to get money to repay a debt he was responsible for “under the rules of the

enterprise.” Supp. App’x at 1754. Madonna argues that Datello’s statements were not

admissible as co-conspirator statements because there was no specific conspiracy

between Datello and Madonna to engage in drug transactions in furtherance of the

Lucchese Family enterprise.

We agree with the district court that Datello and Madonna were both part of the

charged racketeering conspiracy, and that as a member of that conspiracy, Datello was

expected to make payments to the Lucchese Family on his debt arising from that

conspiracy. See United States v. Russo, 302 F.3d 37, 44 (2d Cir. 2002) (“[A] declarant’s

statement made in furtherance of a criminal act . . . is not admissible against the defendant

under the co-conspirator exception unless the defendant was associated with the

declarant in a conspiracy or joint venture having that criminal act as its objective.”). As

the district court aptly noted, “[i]t’s the [Lucchese] Family norms that required Datello to

make these payments and the Family has an interest in [(A)] not getting stiffed by people

who owe it money, and [(B)] making people aware that bad things can happen if you

don’t pay.” Supp. App’x at 1756. Datello’s statements about the need to get money

quickly to repay the debt he owed to the Lucchese Family were therefore properly

admitted as co-conspirator statements.

10 d. Caldwell’s Recorded Interview

During a New York City Police Department interview of Caldwell after the

Meldish murder, the interviewing detective said he was “trying to get an explanation”

for the evidence placing Caldwell at the scene of the crime, J. App’x at 1594–96, to which

Caldwell responded, “I don’t have one,” id. at 1596. Londonio challenges the admission

of that statement for the first time on appeal, so it is reviewed for plain error. See United

States v. Logan, 419 F.3d 172, 177 (2d Cir. 2005).

Even assuming that the district court erred in admitting Caldwell’s statement,

Londonio’s argument fails because he cannot show, as he must on plain-error review, “a

reasonable probability that the error affected the outcome of the trial.” United States v.

Marcus, 560 U.S. 258, 262 (2010). Here, strong evidence—including phone records,

cellphone and vehicle location data, video of Londonio’s car following Meldish’s car in

the minutes before the murder, and Londonio’s confessions to both Evangelista and

Foti—established Londonio’s guilt. On this record, Londonio cannot show that

admission of Caldwell’s statement affected his substantial rights and the outcome of the

trial. See Logan, 419 F.3d at 177.

2. Other Evidentiary Issues

a. Alternative Suspect Evidence

During trial, the district court sustained objections to certain defense questions

that sought to develop a theory that the FBI had failed to adequately investigate the

11 Bonanno Family for its potential role in the Meldish murder. Londonio argues that the

district court abused its discretion by limiting cross-examination and in denying the

defense’s motion to compel testimony from an FBI Special Agent about alternative

suspects.

The district court did not abuse its discretion in concluding that the proffered

evidence regarding other alleged suspects was not sufficiently connected to the Meldish

murder and was inadmissible hearsay. Further, the district court did not err in limiting

the testimony of the FBI Special Agent after finding that the FBI thoroughly investigated

the Meldish murder, including any Bonanno Family involvement, during the three years

between the murder and the filing of charges against Londonio. See Wade v. Mantello, 333

F.3d 51, 61–62 (2d Cir. 2003) (explaining that merely showing another’s motive and

opportunity to commit the charged crime does not necessarily establish admissibility; the

defendant must also “show a nexus between the crime charged and the asserted

alternative perpetrator” (internal quotation marks omitted)).

b. Evidence of Crea’s Involvement in Construction Rackets

At trial, the government introduced evidence of Crea’s involvement in

construction-related rackets from the late 1990s until 2008, primarily through the

testimony of two witnesses. The first witness, Sean Richard, who worked with Datello

and Crea in the late 1990s until 2000, testified about working on Mafia-backed

construction projects that used falsely inflated change orders. He later cooperated with

12 state and federal authorities, which led to labor and racketeering charges against Datello

and Crea. The second witness, Peter Palmisano, who worked as a project manager on

one of Crea’s large construction contracts in the Bronx from 2008 to 2014, testified about

the intimidation he endured when he raised concerns about false invoices submitted on

that project. Crea objects to the introduction of that evidence as prejudicial and improper

propensity evidence.

The testimony about Crea’s involvement in construction rackets was both relevant

and admissible. Palmisano’s testimony about vandalism, break-ins, and other acts was

admitted as circumstantial evidence that the campaign of intimidation was designed to

protect the contractor and ensure the flow of fraudulent proceeds to the Lucchese Family.

Richard’s testimony about the pre-2000 contracts was admitted as background

information to explain the Lucchese Family’s long-time control of the construction

industry and Crea’s influence over that business. Additionally, the district court

provided clear limiting instructions 5 that sufficed to prevent any unfair prejudice arising

from that challenged evidence. See United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006)

(“[T]he law recognizes a strong presumption that juries follow limiting instructions.”).

5The limiting instruction relating to Richard’s testimony was one requested by Crea and described by his counsel as “perfect.” Supp. App’x at 997–98.

13 C. Pre-Trial Motion for Inspection of Grand Jury Minutes

Crea argues that the district court erred in denying his motion to dismiss an earlier

indictment or inspect the grand jury minutes that resulted in that indictment claiming

that, because the government made misrepresentations during bail hearings, those same

misrepresentations must have been made to the grand jury. After carefully reviewing

each of the alleged misrepresentations, the district court concluded that any errors by the

government at the bail hearings were not intentional and cautioned the government not

to make the same mistakes when it presented the case to a new grand jury. Because the

government sought a new indictment before a new grand jury, the district court denied

the request to dismiss the prior indictment with prejudice or to review the grand jury

minutes.

We review the denial of a motion to dismiss an indictment for prosecutorial

misconduct de novo, while deferring to a district court’s factual findings unless clearly

erroneous. See United States v. Walters, 910 F.3d 11, 22 (2d Cir. 2018). Whether an

indictment should be dismissed with or without prejudice is reviewed for abuse of

discretion. See United States v. Giambrone, 920 F.2d 176, 181 (2d Cir. 1990). Finally, we

review a district court’s decision whether to inspect grand jury minutes for abuse of

discretion. See Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Garland, 43 F.4th 276, 285 (2d Cir.

2022), cert. denied, 143 S. Ct. 573 (2023).

14 Because Crea was convicted after a jury trial, his claim that an earlier indictment

against him should have been dismissed based on errors in the grand jury process is

moot. See United States v. Mechanik, 475 U.S. 66, 72–73 (1986). Although Crea argues that

“the circumstances here fall outside the rule announced in [Mechanik],” Crea Br. at 13, he

does not offer any explanation for why that is so. As the Supreme Court noted, “isolated

exceptions” to Mechanik’s harmless-error rule apply where the “structural protections of

the grand jury” are compromised by ills such as racial or gender discrimination in

selecting grand jurors. Bank of Nova Scotia v. United States, 487 U.S. 250, 256–57 (1988).

But attacks on the presentation of evidence to the grand jury are not exempt from the

harmless-error rule. See id. Therefore, if any error was made by the district court in failing

to inspect the grand jury minutes, we hold that such error was harmless.

D. Jury Instructions

Madonna and Crea argue that the district court erroneously instructed the jury

that it could find them guilty on a Pinkerton theory of liability with respect to the Meldish

murder charged in Count Three and the use of a firearm resulting in death charged in

Count Seven. See Pinkerton v. United States, 328 U.S. 640, 646–48 (1946). The Pinkerton

instruction “informs the jury that it may find a defendant guilty of a substantive offense

that he did not personally commit if it was committed by a coconspirator in furtherance

of the conspiracy, and if commission of that offense was a reasonably foreseeable

15 consequence of the conspiratorial agreement.” United States v. Gershman, 31 F.4th 80, 99

(2d Cir. 2022) (internal quotation marks omitted), cert denied, 143 S. Ct. 816 (2023).

We review a preserved challenge to a jury instruction de novo, and we will reverse

only if we identify “both error and ensuing prejudice.” United States v. Sabhnani, 599 F.3d

215, 237 (2d Cir. 2010) (quoting United States v. Quinones, 511 F.3d 289, 313 (2d Cir. 2007)).

Where a challenge is unpreserved, we review only for plain error. See United States v.

Nouri, 711 F.3d 129, 138 (2d Cir. 2013).

We have reviewed the district court’s Pinkerton instruction and find no error, plain

or otherwise. There was ample evidence to support the government’s theory that

Madonna and Crea shared membership in a RICO conspiracy that condoned acts of

murder with Londonio and Caldwell, the perpetrators of the Meldish murder. The

district court correctly instructed the jury that to convict a Defendant of the Meldish

murder on a Pinkerton theory, it needed to find, among other things, that the Defendant

and the person or persons who actually committed the crime were members of a

conspiracy at the time of the killing, “that the substantive crime was committed pursuant

to the common plan and understanding [the jury] found to exist among the co-

conspirators,” and “that the defendant could reasonably have foreseen that the

substantive crime [the jury was] considering might be committed by his co-conspirators.”

J. App’x at 1509–10. Because the record here supports the district court’s issuance of the

16 instruction which clearly conveyed the concept of reasonable foreseeability that Pinkerton

requires, there was no error.

E. Defendants’ Rule 33 Motion for a New Trial

Defendants argue that the district court erred in denying their motion for new trial

based on certain post-trial disclosures relating to two of the government’s witnesses.

After the trial, a cooperating witness, John Pennisi, participated in dozens of podcasts

where he discussed his association with and activities in organized crime as a “made”

member of the Lucchese Family. The government also disclosed a disc it had obtained,

after the trial, from the Metropolitan Detention Center in Brooklyn containing recordings

of a cooperating witness, Evangelista’s, calls from prison. Defendants claim this evidence

undermines the government’s theory that the Meldish murder was committed by the

Lucchese Family or required Madonna and Crea’s approval and could have been used to

impeach those witnesses. 6 We review the district court’s denial of a Rule 33 motion for a

new trial for abuse of discretion and the factual findings in support of its ruling for clear

error. See, e.g., United States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009).

6 Separately, Londonio seeks a new trial based on claims of prosecutorial misconduct. After a thorough review of the record, we conclude that any alleged misconduct in the prosecutor’s statements was cured by the instructions of the district court. See United States v. Millar, 79 F.3d 338, 343 (2d Cir. 1996) (finding that the district court’s “instructions to the jury to disregard the prosecutor’s comments were sufficiently curative to eliminate any possible prejudice”).

17 The post-trial disclosures do not warrant a new trial because they do not

undermine the government’s theory of the case that the Meldish murder was sanctioned

by the Lucchese Family. The jury heard and rejected the defense’s theories that murders

within La Cosa Nostra are not always orchestrated by the boss (so-called “sneak

murders”), and that the Bonanno Family was responsible for the Meldish murder.

Further, both witnesses were subject to extensive cross-examination, and any further

impeachment based on information disclosed post-trial would have been cumulative. See

United States v. Persico, 645 F.3d 85, 111 (2d Cir. 2011) (“[W]here the undisclosed evidence

merely furnishes an additional basis on which to challenge a witness whose credibility

has already been shown to be questionable or is subject to extensive attack by reason of

other evidence, the undisclosed evidence may properly be viewed as cumulative, and

hence not material, and not worthy of a new trial.”). There is no “reasonable probability”

that the outcome of Defendants' trial would have been different had the post-trial

disclosures come to light before trial. In re Terrorist Bombings of U.S. Embassies in E. Africa,

552 F.3d 93, 146 (2d Cir. 2008). For those reasons, we do not find that any of the purported

new evidence warrants a new trial under Rule 33. 7

7The district court correctly concluded there was no Brady violation with respect to either the podcasts created post-trial or the recorded prison calls which were not in the government’s possession at the time of trial. See Brady v. Maryland, 373 U.S. 83 (1963).

18 F. Sentencing Challenges

Madonna, Crea, and Londonio each raise sentencing challenges.

1. Madonna’s Sentencing Challenge

Madonna argues that his sentence should be vacated and remanded for re-

sentencing because the mandatory sentence for Count Three, life without parole, violates

the Eighth Amendment’s prohibition on cruel and unusual punishment due to his age

and deteriorating neurological condition. However, as Madonna concedes in his brief,

binding precedent forecloses this argument. See Harmelin v. Michigan, 501 U.S. 957, 995

(1991) (“Petitioner asks us to extend this so-called individualized capital-sentencing

doctrine to an individualized mandatory life in prison without parole sentencing

doctrine. We refuse to do so.” (internal quotation marks and citation omitted)). His

argument therefore fails.

2. Crea’s Sentencing Challenge

Crea argues that the district court erred in sentencing him to life imprisonment on

Count One because the jury did not find that he participated in a pattern of racketeering

activity that included acts of murder. The enhanced-penalty provision of Section 1963(a)

does “not require proof that the murder that was among the objects of the conspiracy

actually came to fruition in order for the maximum penalty to apply.” United States v.

Capers, 20 F.4th 105, 120 n.11 (2d Cir. 2021). The verdict form as to Count One included a

special interrogatory, which the jury found, that asked the jury to determine whether “the

19 pattern of racketeering activity that Defendant Steven Crea agreed would be committed

include[d] acts involving murder, including attempted murder, conspiracy to murder, or

aiding and abetting murder.” Supp. App’x 700. That finding was sufficient to trigger the

enhanced-penalty provision. Even if the district court erred, the error did not affect

Crea’s substantial rights due to the life sentences imposed on Counts Three and Seven.

See United States v. Jackson, 658 F.3d 145, 153 (2d Cir. 2011) (concluding that any error in

imposing a 384 months sentence was harmless because the sentence ran concurrently

with two sentences of 540 months).

3. Londonio’s Sentencing Challenges

Londonio challenges the imposition of a consecutive life sentence for his Section

924(j) conviction on Count Seven. 8 At the time of the sentencing, this Court’s precedent

required a sentence for a Section 924(j) conviction to run consecutively to the sentence

imposed on any other count of conviction. See United States v. Barrett, 937 F.3d 126, 129

n.2 (2d Cir. 2019). After Defendants’ sentencing, however, the Supreme Court abrogated

Barrett and held that Section 924(j) sentences need not run consecutively. See Lora v.

United States, 599 U.S. 453, 464 (2023). Because Londonio did not object to the imposition

8 Londonio also argues that his conviction on Count Seven must be vacated because it is predicated on an offense—murder in aid of racketeering activity—that is not a “crime of violence” under 18 U.S.C. § 924(c)(3)(A). That argument is foreclosed by Stone v. United States, 37 F.4th 825, 832–33 (2d Cir.), cert. denied, 143 S. Ct. 396 (2022). In Stone, we held that murder in aid of racketeering based on a completed violation of N.Y. Penal Law § 125.25(1) is categorically a crime of violence. See id.; United States v. Laurent, 33 F.4th 63, 89 (2d Cir. 2022) (same). Londonio’s argument therefore fails.

20 of a consecutive term on Count Seven before the district court, this Court’s review is for

plain error. See Marcus, 560 U.S. at 262. Londonio claims that because the district court

imposed concurrent sentences on all other counts, it must have understood that it did not

have the discretion to impose a concurrent sentence and, as such, the sentence is

erroneous.

Even assuming the imposition of the consecutive life sentence was erroneous, that

error does not meet the plain error standard and is harmless. Londonio was also

sentenced to two additional concurrent life sentences on Counts One and Three, and so

the imposition of an additional consecutive life sentence does not affect any of his

substantial rights, thereby foreclosing a plain error challenge. See, e.g., United States v.

Vernace, 811 F.3d 609, 620 (2d Cir. 2016); see generally Kassir v. United States, 3 F.4th 556,

561-64 (2d Cir. 2021) (discussing concurrent sentence doctrine).

We have considered Defendants’ remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgments of the district court.

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