806 F.3d 706
2d Cir.2015Background
- Defendant-appellant Boris Lisyansky was convicted by jury of conspiracy to commit murder-for-hire and substantive murder-for-hire under 18 U.S.C. §§ 1958, 2.
- The district court assigned an offense level using U.S.S.G. 2A1.5 via cross-reference from 2E1.4, cmt. n.1, because underlying conduct violated state law.
- The underlying crimes involved a murder-for-hire plot against rival restaurant owners in Queens, New York, orchestrated by Lisyansky and a co-conspirator, Rosa.
- Rosa testified he agreed to kill for $24,000; he had a history of mental illness and drug use but testified clearly about the events.
- Trial did not include the New York murder definition in the instruction; appellate challenges included sufficiency and a constructive-amendment claim.
- The court affirmed the district court’s judgment, agreeing the cross-reference approach was proper and rejecting the other challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guideline cross-reference proper? | Lisyansky argues misapplication of 2E1.4 cmt.1 to 2A1.5. | Government contends cross-reference correctly uses underlying-conduct-based level. | Cross-reference properly applied. |
| Sufficiency of the evidence? | Rosa’s reliability and mental illness undermine conspiracy and murder-for-hire proof. | Evidence supports agreement to hire for murder-for-hire and intent to pay. | Evidence sufficient for both convictions. |
| Constructive amendment claim? | District court failed to instruct NY murder definition, altering the offense. | No alteration of core criminality; modern instruction is appropriate. | No plain error; no constructive amendment. |
Key Cases Cited
- United States v. Smith, 755 F.3d 645 (8th Cir. 2014) (supports cross-reference use in § 1958 cases)
- United States v. Dotson, 570 F.3d 1067 (8th Cir. 2009) (affirms cross-reference approach)
- United States v. Vasco, 564 F.3d 12 (1st Cir. 2009) (analogous cross-referencing rationale)
- United States v. Temkin, 797 F.3d 682 (9th Cir. 2015) (endorses cross-reference for state-law underlying conduct)
- United States v. Dan, 205 F.3d 1325 (2d Cir. 1999) (unpublished; cross-reference affirmed for § 1958)
- United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012) (guidelines interpretation and Application Notes cited)