7 F.4th 90
2d Cir.2021Background
- MBG (Mill Brook Gangstas) was an up-the-block Bronx neighborhood gang opposed to Killbrook (down-the-block); MBG members committed group violence and ran a stash house for drugs and shared firearms.
- Christopher Howard, an MBG member, shot three men on August 17, 2014 (one victim, Shadean Samuel, was a Killbrook member who had broken Howard’s jaw in 2011); an eyewitness identified Howard and his Facebook messages showed expressed intent to retaliate.
- A jury convicted Howard of a RICO racketeering conspiracy (Count One), a VICAR violent crime in aid of racketeering (Count Six), and a §924(c) firearm offense (Count Twelve).
- The district court granted Howard’s Rule 29 motion as to the VICAR and §924(c) counts (finding insufficient evidence that the shooting was committed to maintain or increase his gang position) but denied it as to the racketeering conspiracy; the government appealed and Howard cross-appealed.
- The Second Circuit reviewed sufficiency of the evidence de novo, credited all reasonable inferences for the government, and concluded the evidence supported both the RICO conspiracy and that the VICAR motive element was met, so the §924(c) conviction (dependent on the VICAR predicate) also stood.
- Disposition: the court reversed the partial acquittal, reinstated the VICAR and firearm convictions, vacated the limited judgment entered after the acquittal, and remanded for reinstatement of the full verdict and resentencing.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Howard) | Held |
|---|---|---|---|
| Sufficiency of evidence for RICO conspiracy (Count One) | Evidence showed MBG functioned as an association-in-fact and Howard agreed to its violent/drug-related objectives | MBG lacked enterprise features distinct from YGz; Howard lacked knowing participation | Affirmed — evidence supported conspiracy conviction |
| VICAR motive element (did Howard act to maintain/increase gang position?) (Count Six) | Howard’s conduct and communications showed motivation to retaliate as part of MBG norms; gang membership/‘put in work’ sufficed | Shooting was a personal vendetta against Samuel, not gang-motivated | Reversed district court; jury reasonably could find gang-motivated motive |
| §924(c) firearm offense dependent on predicate crimes (Count Twelve) | §924(c) valid because VICAR remains a crime of violence under the elements clause; firearm was used in furtherance of that crime | With VICAR vacated, §924(c) could not rest on RICO post-Davis | Reinstated — because VICAR conviction stands, §924(c) conviction valid |
| Remedy / final judgment & sentencing | Verdict should be fully reinstated and defendant resentenced on all convictions | District court properly entered acquittal on VICAR and §924(c) | Court reversed partial acquittal, vacated limited judgment, remanded for reinstatement and resentencing |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (sufficiency-of-evidence standard governs review)
- Turkette, 452 U.S. 576 (definition of association-in-fact enterprise under RICO)
- Boyle v. United States, 556 U.S. 938 (structural features for association-in-fact enterprise)
- Davis, 139 S. Ct. 2319 (struck §924(c) residual clause as unconstitutionally vague)
- Benevento, 836 F.2d 60 (RICO conspiracy requires agreement to RICO objectives)
- Zichettello, 208 F.3d 72 (conspirator need only know general contours of conspiracy)
- Concepcion, 983 F.2d 369 (VICAR motive language: maintaining/increasing position can be liberally construed)
- Thai, 29 F.3d 785 (distinguished — mercenary motive insufficient where no gang-related motive shown)
- Glenn, 312 F.3d 58 (equipoise rule referenced; jury decides competing inferences)