3 F.4th 75
2d Cir.2021Background
- Heyward was tried with co-defendants and convicted by jury of: Count One (RICO conspiracy), Count Two (narcotics conspiracy), and Count Three (possession/use of a firearm in furtherance of either Count One or Count Two under 18 U.S.C. § 924(c)).
- The jury specially found the RICO pattern included both murder conspiracy and narcotics conspiracy; it found a firearm was discharged in furtherance of the racketeering conspiracy but not in furtherance of the narcotics conspiracy.
- At sentencing the district court imposed 120 months consecutive for the § 924(c) conviction (60 months base + 60 months discharge enhancement) without identifying which conspiracy Count Three attached to.
- After sentencing the Supreme Court decided United States v. Davis, invalidating the § 924(c) residual clause; subsequent Second Circuit decisions held conspiracy to commit violent felonies (e.g., murder) cannot qualify under the § 924(c) elements clause.
- Heyward argued his § 924(c) conviction was invalid because the verdict could have rested on non-qualifying murder-conspiracy conduct; he also challenged sufficiency of the evidence for Counts One and Two. The panel vacated the § 924(c) conviction and remanded for resentencing, but upheld the RICO and narcotics convictions.
- Trial evidence (viewed in the light most favorable to the prosecution) showed Heyward engaged in retail-level crack distribution, stored/handled drugs in the stash house, warned others during a raid, and was involved in multiple shooting incidents connected to gang activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of § 924(c) conviction after Davis | Heyward: § 924(c) conviction is invalid because jury could have based it on murder-conspiracy (non-qualifying) conduct under Count One | Government: Even if Count One included murder, the narcotics conspiracy (Count Two) qualified and the RICO and narcotics conduct were inextricably intertwined, so § 924(c) stands | Vacated § 924(c) conviction. Jury form, special findings, and instructions leave uncertainty that conviction rested on now-invalid crime-of-violence predicate; plain error requires vacatur and remand for resentencing |
| Sufficiency of evidence for RICO and narcotics convictions | Heyward: convictions rest on testimony of cooperating witnesses with motive to lie; evidence insufficient | Government: evidence (cooperator testimony, drug activity, stash house, shootings) sufficed; jury could credit witnesses | Affirmed convictions for Counts One and Two; appellate review defers to jury credibility findings |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (Sup. Ct.) (invalidated § 924(c) residual-clause definition of "crime of violence")
- United States v. Barrett, 937 F.3d 126 (2d Cir.) (post-Davis decision limiting use of conspiracy-to-commit-violent-felony as § 924(c) predicate)
- United States v. Dussard, 967 F.3d 149 (2d Cir.) (discussing § 924(c) application post-Davis and plain-error review)
- United States v. Ivezaj, 568 F.3d 88 (2d Cir.) (RICO predicate analysis for treating RICO conviction as § 924(c) predicate under earlier law)
- United States v. Foley, 73 F.3d 484 (2d Cir.) (when jury may rely on multiple bases and one is invalid, conviction must be vacated if unclear which basis jury selected)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (standard for sufficiency-of-the-evidence review)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct.) (use of record of conviction to determine elements of offense)
- United States v. Martinez, 991 F.3d 347 (2d Cir.) (analyzing whether RICO conspiracy is a crime of violence post-Davis)