The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence showed only that the Burdens and their friends sold drugs, but not that the group had the structure required of an enterprise. While the circuit noted the “limitations of the evidence in this case,” it found that the evidence was sufficient. The Burden organization had “multiple members who joined in the shared purpose of selling drugs and promoting such sales.” They had a meeting place from which they could sell in secret, store guns and plan. And their activities were “orderly because there was a hierarchical structure in place.” Nor did it matter that there were “other styles of organization between the narcotics business and the violent acts.”

As for the pattern requirement, the statute requires “criminal acts that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.” There must be at least two acts that are related and that amount to or pose a threat of continued criminal activity. “Horizontal” relatedness requires that the predicate acts be related to each other, but this can be indirect - a common relationship of each act to the enterprise is enough. “Vertical” relatedness means that each act is related to the enterprise. Both types of relatedness must be proven, but each is satisfied by “linking each predicate act to the enterprise.” The pattern element was satisfied here, even though the violent acts here were “the type of conduct that the defendants could have committed absent a connection to the enterprise.” The court agreed that the fact that the violent acts were discussed at the same location where the narcotics activity took place was not enough to establish vertical relatedness. But the violence between the Burdens and rival gang members had its genesis in a drug debt to a Burden member, and that was sufficient.

One defendant also raised an interesting Crawford issue, claiming that an informant’s statements on a wire were “testimonial” because the cooperator consented to be wired and knew that what he said could be used against others at a future criminal trial. The defendant relied on United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), where the circuit wrote: “Crawford at least suggests that the determinative factor in whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at trial.”

The court here noted that this language is dictum and was limited in a later case. Instead, the court held that a declarant’s awareness that his words may be used at a later trial is only “part of the equation,” and “it is the law of this circuit that it is not the sole touchstone.” Looking at the particulars of the statements here, the court found that they were not testimonial. Nothing that the informant said “was spoken for the purpose of accusing. Rather, his comments were made to elicit inculpating statements by others present.” Thus, the “declarant’s purpose in speaking matters,” and a statement “the purpose of which is 'non-accusatory' is not testimonial.”

All five defendants won Regalado remands, however, so that the district court could revisit their crack sentences.

Gambling Problem

United States v. Ivezaj, No. 06-3112-cr (2d Cir. June 11, 2009) (Feinberg, Miner, Parker, CJJ)

Six defendants were convicted of racketeering and related offenses arising from their efforts to break the hold that New York City’s traditional organized crime families had on illegal gambling.

The primary challenge on appeal concerned two RICO predicate acts that alleged violations of New York state’s extortion statute. In New York, extortion involves compelling another person to “deliver ... property” to himself or a third person through fear of a future injury. “Property” is any personal property or “article, substance or thing of value ... which is provided for a charge or compensation.” The defendants argued that control over illegal intangible property such as a gambling operation was not “property” and could not be “delivered.”

The circuit disagreed. Surveying New York case law, the court first concluded that the state recognizes that intangible property - for example, a tenant’s right to occupy an apartment - is covered by the extortion statute. New York courts have also held that “illegal tangible goods,” such as narcotics, can constitute “property.” From those two propositions, the circuit readily concluded that illegal intangibles are also “property” under New York law.

The circuit’s own Hobbs Act jurisprudence bolstered this conclusion. Indeed, the court in 2006 held that “intangible property rights can qualify as extortable property under the Hobbs Act,” whether legal or not.

The court characterized the defendants’ claim that control over an illegal gambling business could not be “obtain[ed]” or “deliver[ed]” as “imaginative but overly literal,” since New York courts have already held that intangible property rights can be extorted.

Relatedly, the defendants also claimed that one of their beating victims was not a “victim” of the inchoate extortion offense, since he was not an “owner” of the extorted property. The court held that, since the defendants were charged with attempt and conspiracy offenses, it was sufficient that the defendants thought he was an owner.

Finally, the defendants challenged their § 924(c) convictions, which related back to the substantive racketeering count, arguing that racketeering did not constitute a “crime of violence.” Applying the traditional “categorical approach” to both the racketeering statute and the statutes underlying the predicate acts, the court disagreed. “[W]here the government proves (1) the commission of at least two acts of racketeering and (2) at least two of those acts qualify as ‘crime[s] of violence’ under § 924(c)," a racketeering conviction serves as a predicate for a § 924(c) conviction.

Finally, the court tackled an open Guidelines question in racketeering cases. One defendant challenged his aggravating role enhancement on the ground that the district court should have looked only to the conduct alleged in the charged RICO predicates, and not to his role in the enterprise as a whole. The circuit disagreed, adopting the reasoning of a Seventh circuit case. In racketeering prosecutions, role adjustments function just as they do in any other prosecution: the sentencing court is to look to the count of conviction and all relevant conduct.