31 F.4th 80
2d Cir.2022Background
- Defendants Leonid Gershman and Aleksey Tsvetkov were leaders/members of an East‑European criminal group charged with diverse crimes (illegal gambling, extortion, arson, marijuana distribution, firearms offenses, wire fraud) and convicted after a three‑week jury trial.
- The jury found all charged RICO predicates proved and convicted both on substantive RICO (Count 1) and RICO conspiracy (Count 2); they were each sentenced to 198 months’ imprisonment.
- Key factual episodes: weekly high‑stakes illegal poker operations (credit system and violent collections), a planned arson of a rival poker spot that caused serious injuries, a marijuana distribution operation, and multiple violent/extortionate acts.
- Pretrial identification dispute: neighbor Todd Smoloff identified Gershman as a 2012 firearm‑possession suspect after a six‑photo array; Gershman sought a Wade hearing to suppress an in‑court ID.
- Sentencing dispute: District Court applied a §3C1.1 obstruction enhancement to Gershman’s RICO base offense level (based on efforts to obtain false testimony from a victim), and Tsvetkov received an above‑Guidelines variance based on violent history and danger to the community.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Smoloff in‑court ID / need for Wade hearing | Gershman: pretrial IDs (600‑photo review then a 6‑photo array) were suggestive; court should have held a Wade hearing and excluded in‑court ID | Government: array not unduly suggestive; independent indicia of reliability; cross‑examination suffices | Court: No abuse of discretion; array not unduly suggestive and in‑court ID independently reliable — admission affirmed |
| Double jeopardy / multiplicity of overlapping extortion conspiracies | Gershman: Count 3 (overarching conspiracy) subsumes Counts 4,6,8,10,12 (victim‑specific conspiracies) so convictions violate Double Jeopardy | Government: claim was not raised below and not an obvious injustice warranting review | Court: Declined to consider on appeal (procedural default); claim not reached |
| Sufficiency of evidence that a RICO “enterprise” existed | Defendants: activities were ad hoc, disparate, lacked name, formal hierarchy, pooled profits or continuity — no association‑in‑fact enterprise | Government: overlap of participants, shared involvement in crimes, rough hierarchy, sharing of proceeds, mutual aid, and retaliation by rivals supported an enterprise | Court: Viewed evidence in light most favorable to Government — substantial overlapping conduct and interrelations supported an association‑in‑fact enterprise; RICO convictions affirmed |
| Pinkerton instruction and arson convictions (Count 17–18) | Defendants: arson not reasonably foreseeable from gambling conspiracy; Pinkerton instruction improper and could improperly bootstrap conspiracy liability | Government: defendants attended the meeting where arson was proposed and adopted; arson was a natural/foreseeable step to eliminate competition | Court: Pinkerton instruction legally correct and supported by trial evidence; arson and arson‑conspiracy convictions affirmed |
| Application of obstruction enhancement to RICO base offense (Gershman) | Gershman: he only attempted to obstruct one predicate (Dulevskiy extortion); §2E1.1 requires predicate‑by‑predicate treatment for Chapter Three adjustments — enhancement should not have been applied to marijuana predicate or entire RICO offense | Government: after computing RICO base level per §2E1.1, Chapter Three adjustments (including obstruction) apply to the RICO base as a whole; Ivezaj controls | Court: Majority affirmed application to the RICO offense as a whole (Ivezaj controlling); dissent would have limited enhancement to the specific predicate |
| Substantive reasonableness of Tsvetkov’s 198‑month sentence | Tsvetkov: above‑Guidelines term unreasonable and disparate compared to Gershman | Government/District Court: variance justified by violent history, recidivism, lack of remorse, threats while detained | Court: District Court did not abuse discretion; sentence substantively reasonable |
Key Cases Cited
- Boyle v. United States, 556 U.S. 938 (2009) (association‑in‑fact enterprise elements and broad RICO enterprise concept)
- United States v. Turkette, 452 U.S. 576 (1981) (enterprise distinct from pattern of racketeering, but proof may coalesce)
- Pinkerton v. United States, 328 U.S. 640 (1946) (co‑conspirator liability for reasonably foreseeable substantive offenses)
- United States v. Wade, 388 U.S. 218 (1967) (pretrial identification hearings and due process concerns)
- Simmons v. United States, 390 U.S. 377 (1968) (due process and pretrial identification)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (limits on exclusion of identification absent suggestiveness)
- United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009) (RICO Guidelines methodology: treat predicates separately to set base level; Chapter Three adjustments applied to RICO base)
- United States v. Khimchiachvili, 372 F.3d 75 (2d Cir. 2004) (obstruction enhancement: materiality standard and conduct that has potential to impede investigation/prosecution)
- United States v. Martoma, 894 F.3d 64 (2d Cir. 2017) (standard of review for sufficiency challenges; view evidence in light most favorable to government)