UNITED STATES OF AMERICA v. JAMES CAPERS, AKA MITCH
Docket No. 17-1836-cr
United States Court of Appeals, Second Circuit
December 14, 2021
August Term, 2017
Initially Submitted: May 2, 2018
Last Written Submission: March 18, 2021
* The Clerk of Court is respectfully directed to amend the official caption as shown above.
** Judge Christopher F. Droney, originally a member of this panel, retired on January 2, 2020. This appeal has been decided by the two remaining members of the panel, who are in agreement. See
SCOTT HARTMAN (Jessica Lonergan, Jason M. Swergold, and Won S. Shin, on the brief), Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee.
BENJAMIN SILVERMAN (Andrew G. Patel, on the brief), Patel & Shellow LLP, New York, NY, for Defendant-Appellant.
Following a six-day trial, a jury in the United States District Court for the Southern District of New York found James Capers, a member of a street gang known as the Leland Avenue Crew (the “Leland Crew” or “Leland“), guilty of conspiracy to violate the Racketeer-Influenced and Corrupt Organizations Act (“RICO“), in violation of
After the briefing was complete, a series of decisions in the Supreme Court and in this Court interpreting and invalidating aspects of the definition of “crime of violence” underlying Capers‘s murder conviction led to several rounds of supplemental briefing regarding the validity of that conviction, as the law continued to evolve. Essentially, Capers now contends that under current law, most particularly the Supreme Court‘s decision in United States v. Davis, 139 S. Ct. 2319 (2019), and this Court‘s decision in United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (”Barrett II“), the district court‘s instruction that RICO conspiracy is a crime of violence for purposes of
We agree that under binding precedent from the Supreme Court, RICO conspiracy is not a crime of violence for purposes of
BACKGROUND2
At trial, Capers explicitly conceded that on the afternoon of July 7, 2015, he shot and killed Allen McQueen. The evidence showed that Capers ran up behind McQueen as McQueen was walking down a Bronx street holding his eleven-month old daughter in his arms, and fatally shot him in the side, the bullet traversing both his lungs and the vein that delivers blood to the heart. Capers did not contend at trial that he had not murdered McQueen; rather, his defense was that the murder was not a federal crime, because the murder was a “solo project” of personal revenge that he undertook on his own, and that had nothing to do
The jury heard extensive evidence about that involvement. Capers was a member of the Leland Crew, which operated primarily around Leland Avenue in the Bronx. Indeed, Capers‘s membership in the gang is not seriously disputed on appeal. The government presented evidence that Leland Crew members sold marijuana and crack cocaine between 2009 and 2015, and that Capers had been arrested for selling crack cocaine on Leland Avenue as early as March 2009. Several cooperating witnesses testified that Capers continued to sell cocaine and marijuana between 2009 and his arrest for the instant offenses in 2015.
The Leland Crew was also involved in a violent rivalry with another gang, the Taylor Avenue Crew (the “Taylor Crew” or “Taylor“). Taylor Avenue is only a street away from Leland Avenue, and the Taylor and Leland gangs competed for business in the neighborhood, resulting in considerable tension between the groups. Violence between the gangs escalated between 2009 and 2014. After a Leland member shot a Taylor member in November 2014, members of the Taylor Crew vowed to retaliate by murdering Leland‘s leader, Pablo Beard. Just a few
Leland members, angered at the murder of Beard and worried that the Taylor Crew would attempt to take advantage of their perceived weakness if they failed to retaliate, discussed the need to take revenge. Members posted warnings on social media that Beard would be avenged. Capers, who was in prison at the time of Beard‘s murder, considered Beard his best friend, and thus had a particular interest in revenge against Davila and McQueen. After his release from prison he joined other Leland Crew members in creating a YouTube video warning that Beard would be violently avenged – a video that a Leland member testified at trial was meant to let “[t]he enemy, the Taylor” know that “[n]obody is going to get away with . . . [k]illing Pablo.” Tr. 231. On more than one occasion, Leland members went to Taylor Avenue looking for McQueen and calling his name. Capers himself warned McQueen‘s girlfriend to “be careful and stay away from [McQueen].” Tr. 504. His cellphone contained text messages showing that he too was looking for McQueen.
On the afternoon of the murder, Capers asked one of his (and formerly, Beard‘s) marijuana customers for a ride, ostensibly to go to Harlem to replenish
Shortly after Beard‘s murder, Capers advised an incarcerated fellow Leland member by telephone that McQueen had been killed. Other Leland Crew members posted a news article on Facebook about McQueen‘s killing, accompanied by references to Beard and the rivalry between the gangs. Capers himself wrote notes in his cellphone two days after the killing, that referenced cooking crack, the gun violence in the neighborhood, and how his “gang” was “up to no good,” noting that “now that nigga shot” and that now “we on all these blocks.” SA 44.
After a day and a half of deliberations, the jury returned the verdict described above. Following an unsuccessful round of post-trial motions and the imposition of sentence, Capers filed a timely notice of appeal.
As noted above, Capers challenges the sufficiency of the evidence to support certain of his convictions, and also raises two challenges to the instructions that were given to the jury with respect to the firearms-murder charge. Because insufficiency of the evidence would require reversal of the challenged convictions and entry of a judgment of acquittal, see, e.g., United States v. Bramer, 956 F.3d 91, 99 (2d Cir. 2020), while a finding of instructional error would require only vacatur of the conviction and a remand for a new trial, see, e.g., United States v. Silver, 948 F.3d 538, 547, 572 (2d Cir. 2020), we address the sufficiency argument first.
I. Sufficiency of the Evidence
Capers raises sufficiency of the evidence challenges to two of his convictions. First, he argues that there is insufficient evidence to support the jury‘s finding on Count One that the pattern of racketeering activity that he agreed to commit included the murder of McQueen. Second, he argues that his
A. The RICO Conspiracy Charge
As part of Capers‘s conviction of RICO conspiracy, the jury found, inter alia, that the pattern of racketeering activity that Capers agreed would be committed as part of the Leland Crew enterprise included the murder of Allen McQueen. On appeal, Capers acknowledges that there is sufficient evidence to support his conviction of RICO conspiracy, but argues that there was insufficient evidence to support the jury‘s finding that the murder of McQueen was part of
Looking at the evidence in the light most favorable to the government, a rational trier of fact could have concluded that the murder of McQueen was part of the RICO enterprise. Capers does not deny that he killed McQueen. He argues, however, as he did at trial, that he committed that murder solely “to avenge his best friend‘s murder” and not for any reason connected to the Leland RICO conspiracy. Appellant‘s Br. at 24, 26. The jury rejected that argument, however, after hearing extensive evidence that Capers was a member of the Leland Crew, that Leland and Taylor would commit violent acts against one another in order to maintain territory and respect, and that Capers both participated, before McQueen‘s murder, in group Leland Crew threats to avenge the murder of their leader, and wrote notes after McQueen‘s murder that a reasonable juror could find linked the murder of McQueen to the success of the Leland Crew.
Leland members testified at trial that affiliates of the gang were required to “put[] in work,” meaning that they would “[h]urt[] the enemy” to boost the
Almost immediately after he shot McQueen, moreover, Capers communicated to a jailed Leland member that McQueen had been killed. Capers also made notes in his cell phone a few days later associating gun violence and the fact that the “nigga [got] shot” (which a reasonable juror could infer was a reference to McQueen) with the activities of his “gang,” the cooking of crack, and his gang‘s ability to be “on all these blocks,” SA 44, again paralleling social media
From all of that evidence, a trier of fact could reasonably draw the inference that Capers‘s murder of McQueen was an instance of a Leland member striking back at “the enemy” to bolster the racketeering enterprise. It may well be that Capers, perhaps like other members of the gang, was particularly motivated to avenge Beard‘s death because of his personal friendship with Beard. But nothing about that additional motive is inconsistent with the conclusion, which could rationally be drawn from the evidence, that Capers was loyal not only to Beard personally, but to the gang that Beard led, and that he, along with other Leland members, joined in the purpose of furthering the gang‘s interests by hunting down and retaliating against one of the members of the rival Taylor Crew who had played a role in Beard‘s murder. See United States v. White, 7 F.4th 90, 101-02 (2d Cir. 2021) (holding, in the context of
The jury also found that the murder of McQueen violated
II. The Jury Instructions
Capers raises two claims of error in the district court‘s instructions to the jury concerning the firearms-murder count. First, he argues that the judge erred in advising the jury that the RICO conspiracy count in the indictment was a crime of violence that could serve as a predicate offense for a firearms-murder charge under
“We review de novo a properly preserved challenge to a jury instruction, reversing where the charge, viewed as a whole, either failed to inform the jury adequately of the law or misled the jury about the correct legal rule.” United States v. Binday, 804 F.3d 558, 581-82 (2d Cir. 2015) (internal quotation marks omitted). Objections to jury instructions that were not presented to the trial court, however, are reviewed for plain error. United States v. Grote, 961 F.3d 105, 114 (2d Cir. 2020). “Under plain error review, we consider ‘whether (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant‘s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.‘” United States v. Martinez, 991 F.3d 347, 351 (2d Cir. 2021), quoting United States v. Miller, 954 F.3d 551, 557-58 (2d Cir. 2020).
A. Did the Court Commit Plain Error by Instructing the Jury that RICO Conspiracy is a Crime of Violence on which a Section 924(j) Violation Can Be Predicated?
1. The Charge Was Erroneous.
Moreover, the Supreme Court has long held that to be a crime of violence under the force clause, a crime must categorically involve the use of force. See Taylor v. United States, 495 U.S. 575, 588-90 (1990). In other words, it is not enough
racketeering through which the RICO offense was to be committed, the object offense could have been a crime of violence, see Martinez, 991 F.3d at 356-57, and so under our pre-Davis case law the charged conspiracy would also be a crime of violence. The government does not argue that Capers intentionally waived his present contention that the prior circuit law has been superseded; in consequence, we may consider that argument on appeal. See United States v. Eldridge, 2 F.4th 27, 36 n.11 (2d Cir. 2021) (noting that the government can waive the issue of waiver). But because Capers failed to object to the instruction, as discussed above, we may reverse only for plain error.
The parties now disagree as to whether RICO conspiracy qualifies as a crime of violence under the force clause.7 The government argues that “the racketeering conspiracy in this case has as an element the use of physical force” because it “involved the murder of Allen McQueen.” Govt. Letter (Dkt. 128) at 1-2 (emphasis added). For his part, Capers argues that racketeering conspiracy does not require an overt act and therefore cannot qualify as a crime of violence
The government‘s position is unsustainable. The categorical approach directs us that to determine whether an offense constitutes a crime of violence, we are to consider not the particular conduct disclosed by the evidence presented in the case, but the elements of the offense as defined by statute, to determine whether forcible conduct is legally required to be proved in order to establish a violation of the statute. See United States v. Hill, 890 F.3d 51, 55 (2d Cir. 2018). In contrast to a substantive violation of RICO under
To be convicted of conspiracy under
[t]he essence of a RICO conspiracy is the existence of an agreement to violate RICO‘s substantive provisions. Though the substantive RICO offenses require proof of an enterprise and a pattern of racketeering activity, the establishment of an enterprise is not an element of the RICO conspiracy offense. The government need only prove that the defendant knew of, and agreed to, the general criminal objective of a jointly undertaken scheme. [To sustain a conviction, we must conclude that] the evidence permitted a conclusion that the defendant knowingly agreed with others to function as a unit for the common purpose of engaging in racketeering activity.
White, 7 F.4th at 98-99 (footnotes, citations, internal quotation marks, and alterations omitted; alteration added).
The case of RICO conspiracy is thus indistinguishable from the case of Hobbs Act conspiracy we faced in Barrett II, 937 F.3d at 127. As in that case, even
That this conclusion applies to RICO conspiracies as to others can come as no surprise. We have said as much on several occasions, although our statements could be seen, strictly speaking, as dicta, or were in the context of summary orders. Thus, in Martinez we noted that “[w]e can assume that the [RICO] conspiracy violation is not a crime of violence because . . . a conspiracy offense cannot categorically involve the use of force, since its key element is simply an agreement to commit a crime. . . . [and] because no violent act [i.e., no act requiring use of force] . . . must be committed in order to be guilty of the offense.” 991 F.3d at 354 (emphasis added; emphasis omitted). But in Martinez we needed only to assume that this was so; because the defendant there pled guilty to using a firearm in furtherance of both a conspiracy and a substantive RICO offense, our conclusion that it was not plain error for the district court to have
Although these cases may not constitute binding precedent, their results confirm that we have never, since the Supreme Court‘s decision in Davis, upheld a
The government attempts to avoid this conclusion by characterizing Capers‘s offense as “aggravated RICO conspiracy” on the theory that “murder was an element of the racketeering conspiracy [charged and proved in this case] . . . thereby increasing the maximum penalty for” the crime. Govt. Letter (Dkt. 128) at 1-2; see also
That argument, however, misconceives the nature both of RICO conspiracy, as discussed above, and of the relevant sentence enhancement. Assuming arguendo that the enhanced maximum sentence provision of
But Capers‘s guilt of the offense charged in the indictment, including the enhanced penalty element, was not dependent on whether he actually did murder McQueen (though of course, the proof that he did murder McQueen was highly probative of the charge that Capers had agreed to join an enterprise that was dedicated, among other criminal goals, to murdering enemies of the Leland
RICO, including RICO conspiracy, is an “unusual[ly] complex crime” covering “a multitude of sins” ranging from mail fraud to murder. Martinez, 991 F.3d at 356. But even assuming that the substantive RICO crime defined in
2. The Error is Clear and Obvious.
Next, the government argues that even if the district court‘s jury instruction was erroneous, that error is not clear or obvious. Whether there is an error that is clear or obvious “‘is established at the time of the appeal,’ not as of the time that the district court ruled.” Martinez, 991 F.3d at 357, quoting United States v. Dussard, 967 F.3d 149, 156 (2d Cir. 2020). The government is correct that, until now, this Court has not, since Davis and Barrett II, addressed in a published opinion whether RICO conspiracy is a crime of violence.12 However, there is
Davis and Barrett II, decided while this appeal was pending, clearly foreshadowed the conclusion that we reach today. In fact, we alluded to this exact conclusion in a prior opinion. See Martinez, 991 F.3d 354 (“We can assume that [RICO conspiracy] is not a crime of violence under the force clause because, as the Supreme Court‘s decision in Davis reasoned, a conspiracy offense cannot categorically involve the use of force . . . .“) (emphasis omitted). Furthermore, every one of our sister circuits to have considered post-Davis whether RICO conspiracy (“aggravated” or not) is a crime of violence has held that it is not. See United States v. McClaren, 13 F.4th 386, 412-14 (5th Cir. 2021); United States v. Simmons, 11 F.4th 239, 254-61 (4th Cir. 2021); United States v. Green, 981 F.3d 945, 951-52 (11th Cir. 2020); United States v. Jones, 935 F.3d 266, 271 (5th Cir. 2019); United States v. Davis, 785 F. App‘x 358, 360-61 & n.2 (9th Cir. 2019). Lastly, this Court has long described the RICO conspiracy statute as “most closely analogous
3. Effect on Substantial Rights
Capers was charged in Count Five with a
This case comes on appeal under plain error review, and we correct such errors “only where the appellant demonstrates that . . . the error affected the appellant‘s substantial rights . . . [and] seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted). “In the ordinary case . . . to have impacted [a defendant‘s] substantial rights and the fairness . . . of the judicial proceedings, the overall effect of the . . . error must have been sufficiently great such that there is a reasonable probability that the jury would not have convicted him absent the error.” United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (emphasis added).
Under the rule of Yates v. United States, 354 U.S. 298 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 8-10 (1978), an instructional error is of serious concern “where disjunctive theories of culpability are submitted to a jury that returns a general verdict of guilty, and one of the theories
Relying on our decision in United States v. Vasquez, 672 F. App‘x 56 (2d Cir. 2016) (summary order), the government argues that Capers cannot demonstrate
But that conclusion does not necessarily follow. It is true that the jury made two findings of guilt that, in theory, could be predicates for a
It is entirely plausible that the jury rested its Count Five verdict on the general RICO conspiracy. Count One charged that the overall conspiracy had as its goals not only the promotion of the gang‘s drug enterprise, but also “to protect fellow members and associates of the Enterprise,” and that its violent acts, including murder, were “intended either to protect the Enterprise‘s drug territory, retaliate against members of rival gangs who had encroached on the territory controlled by the Enterprise, or to otherwise promote the standing and
a. Preserving and protecting the power, territory, and profits of the Enterprise through murder, attempted murder, robberies, and other acts of violence, and threats of violence[,]
b. Promoting and enhancing the Enterprise and the activities of its members and associates[, and]
c. Keeping victims and potential victims in fear of the Enterprise and its members and associates through acts and threats of violence.
Id. Thus, the jury could have based its verdict on a finding that Capers killed McQueen in retaliation for the murder of the Leland Crew‘s leader in order to “promote the standing and reputation” of the Leland Crew and to keep its rivals “in fear of the Enterprise and its members.” Id. That would suffice to convict if (as the jury was instructed) the Count One conspiracy were a crime of violence. Such a conclusion by the jury would have been supported by the evidence, and would not have referenced any narcotics conspiracy.
Nor can we conclude, based on the government‘s theory at trial, that the predicate acts supporting the RICO conspiracy were “intertwined” with the narcotics conspiracy in Count Three, as the predicate offenses were in Vasquez. In
But that is not what happened here. The RICO conspiracy was not “presented as part of the proved narcotics scheme.” Id. Instead, it charged Capers
In short, the jury found Capers guilty of conspiring to violate RICO and that various unspecified narcotics crimes were part of the pattern that was the object of the RICO conspiracy. The jury‘s verdict on RICO conspiracy means that it necessarily found that Capers agreed to further a criminal plan that would involve people selling drugs, among other things, but that says nothing about what, if anything, Capers personally would do to participate in the predicate narcotics conspiracy, nor does it say anything about whether the killing of McQueen was in furtherance of that narcotics conspiracy, rather than in the broader interest of the enterprise in furthering its violent dominion.
Of course, we are not in the business of policing verdicts for the consistency of the jury‘s findings of guilty and not guilty on various counts. See, e.g., United States v. Powell, 469 U.S. 57, 64-67 (1984) (explaining that inconsistent verdicts are unreviewable on appeal). But that is not what Capers is asking us to do. One reason we do not evaluate verdicts for inconsistency is to avoid “inquiring into a jury‘s thought processes,” id. at 67, because a jury may reach an
To meet his burden under plain error review, Capers must show that he was “prejudiced by the error,” which, when raising a Yates issue on a
In this case, the split verdict supports Capers‘s argument. There is no particular reason to relate the firearm-murder conviction to a specific subpart – the narcotics conspiracy – of the racketeering charge, rather than to the entire racketeering conspiracy. Nor can that conviction be persuasively connected to the narcotics charge in Count Three, given that the jury acquitted Capers on Count Four, which charged him with murdering McQueen while “engaging in” the narcotics conspiracy charged in Count Three.
We thus cannot infer from the pattern of the jury‘s verdicts that it necessarily rested its guilty verdict on the firearm-murder charge either on the narcotics conspiracy of which he was convicted under Count Three or on the narcotics conspiracy (assuming it was not quite the same conspiracy) charged as one of the predicate acts that were agreed to in the RICO conspiracy charged in Count One. It follows that there is a reasonable probability that the jury found him guilty on Count Five based on the theory that the use of a firearm to murder McQueen was in furtherance of the general conspiracy to operate the Leland Crew enterprise through a pattern of racketeering as charged in Count One, as it
4. The Error Seriously Affects the Fairness and Integrity of the Proceedings.
The last factor need not detain us long. Perhaps some members of the public might shrug off the elaborate analysis that we have been required to undertake. Some might be perplexed as to why, in assessing whether a crime should be called “violent,” we look to how a crime might in theory be committed under its definition, rather than at the fact that the crime the defendant actually committed manifestly involved severe violence, or why the Supreme Court concluded that neither ordinary citizens nor trained judges can reliably determine whether a crime, “by its nature, involves a substantial risk” that physical force will be used in its commission. Lay readers may also wonder why these inquiries lead to the possibility that a man who concedes that he committed a murder is not guilty of the particular homicidal crime that he was charged with in federal court.
But at the end of the day, we are bound by the Constitution that effectively restricts the federal government to prosecuting murders only under specified
At the same time, we note that, as we have held above, the evidence presented here was sufficient to permit a properly instructed jury to convict on Count Five. We vacate the conviction on that count not because Capers necessarily should be exonerated as a matter of law of the crime charged, but rather because an erroneous jury instruction makes it impossible to be confident that the jury convicted him on an appropriate set of findings. The proper remedy,
Moreover, even if the government chooses not to proceed on that count, the erroneous conviction affected not just the sentence imposed on that count, but the entire sentence imposed on Capers for all the counts of conviction. The sentence of only five years in prison for the murder charge that was the most serious count of conviction, while a sentence of thirty-seven years was imposed on other charges, cannot be the product of a conclusion that the murder of McQueen warrants only a five-year sentence. Especially given that the murder was itself a predicate act that was an object of the RICO conspiracy, one might expect a court to have imposed concurrent terms on all counts, based on an integrated assessment of the appropriate sentence for Capers based on the totality of the circumstances, including the murder. But that course was precluded by the fact that the firearm-murder charge mandated a sentence consecutive to the sentence imposed on other counts of conviction. See
Accordingly, we remand with instructions to the district court to consider whether to vacate the entire sentence and impose a new judgment and sentence as it deems appropriate, or to allow the sentences on the counts other than Count Five to stand.
B. Does a Killing Constitute Murder Under the Relevant Statutes Only if it is Premeditated?
Capers also argues that the judge erred by failing to instruct the jury that to constitute murder in violation of
Fortunately, the issue is easily resolved. Capers‘s argument fails because the lower court‘s failure to give a premeditation instruction was not erroneous at all, let alone plainly so.
Capers was charged with murder under
That is simply not the case. Section 1111(a) provides, in full, as follows:
Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.
On a plain reading of the statute, the first sentence defines “murder.” The definition is brief and (at least to any lawyer schooled in the common-law tradition) straightforward: “Murder is the unlawful killing of a human being with malice aforethought.” The remainder of the section is concerned not with the definition of murder, but with the division of murder into two degrees. First-degree murder includes murders that are premeditated, as well as murders committed by certain means or in the course of certain felonies; all murders that do not fit into those categories fall into the residual category of murder in the second degree.
At common law, murder was defined as the unlawful killing of another human being with malice aforethought. Whatever the original meaning of that phrase, it became over time an arbitrary symbol used by judges to signify any of a number of mental states deemed sufficient to support liability for murder.
Amer. Law Inst., Model Penal Code and Commentaries, § 210.2 cmt. 1 at 13-14 (footnotes and internal quotation marks omitted). “First and foremost” among those mental states was “intent to kill.”
It is not necessary here to define the precise, and long-controverted, contours either of “premeditation” or of the provocation that would reduce an intentional killing to manslaughter. The first issue is irrelevant because
CONCLUSION
Accordingly, the judgment of the district court is VACATED as to Count Five. We otherwise AFFIRM the judgment of the district court and REMAND for further proceedings consistent with this Opinion, with authorization to the district court in its discretion to vacate the sentences and resentence the defendant on all counts due to the elimination of the sentence on Count Five.