US v. Burden

Decision Date31 March 2010
Docket Number03-1779-cr-CON,03-1728-cr-XAP,Docket No. 03-1727-cr-LEAD,06-2375-cr-CON.,03-1729-cr-CON,06-0519-cr-CON,04-2737-cr-CON
PartiesUNITED STATES of America, Appellee-Cross-Appellant, v. David L. BURDEN, Also Known as Quinten, Also Known as Sid, Kelvin Burden, Also Known as Waffle, Also Known as Uncle, Also Known as Unc, Jermain Buchanan, and David M. Burden, Defendants-Appellants-Cross-Appellees, Terrence Boyd, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

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Kevin J. O'Connor, United States Attorney, Stephen B. Reynolds, Harold H. Chen, Sandra S. Glover, Assistant United States Attorneys, for Appellee-Cross-Appellant.

Robert M. Frost, Jr., Zeldes, Needle & Cooper, P.C., for Defendant-Appellant-Cross-Appellee, David L. Burden.

Joseph A. Bondy, The Law Offices of Joseph A. Bondy, for Defendant-Appellant, Kelvin Burden.

Jeremiah Donovan, William T. Koch, Jr., for Defendant-Appellant-Cross-Appellee, Jermain Buchanan.

Timothy P. Aspinwall, for Defendant-Appellant, David M. Burden.

Francis L. O'Reilly, for Defendant-Appellant, Terrence Boyd.

Before: HALL, LIVINGSTON, and JOHN R. GIBSON,* Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

This appeal arises out of a twenty-five count indictment alleging that the defendants were part of the Burden Organization, a racketeering enterprise engaged in the distribution of cocaine and cocaine base that also undertook violent acts to promote the enterprise's drug trafficking. Defendants David L. Burden, Kelvin Burden, Jermain Buchanan, and David M. Burden were convicted by a jury following a month-long trial on multiple counts including violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962, the Violent Crimes in Aid of Racketeering statute ("VCAR"), 18 U.S.C. § 1959, and conspiracy to distribute cocaine and cocaine base. They challenge whether the murder and attempted murder of those they believed to be responsible for the death of a family member were sufficiently related to the enterprise alleged in the indictment, or were performed for the purpose of maintaining or improving their position in the enterprise, such that the murder and attempted murder could form the basis for the RICO and VCAR convictions. All four defendants also allege that the government's summation was unfairly prejudicial, and each defendant raises individual issues as well. The remaining defendant on appeal, Terrence Boyd, pleaded guilty to one count of possessing with intent to distribute and distributing cocaine base. He alleges that the district court unreasonably declined to resentence him on remand. We address each argument in turn.

Background

Terrence Boyd, Jermain Buchanan, and Kelvin, David M., and David L. Burden were among a group of people who trafficked cocaine and cocaine base in Norwalk, Connecticut from 1997 until 2001. Kelvin Burden supervised the operation. He had sources who supplied him with kilogram quantities of cocaine and cocaine base, he cooked the cocaine and repackaged the drugs for street-level sales, and over time he began coordinating distribution of the drugs to a number of street dealers. He lived at 27 Lincoln Avenue, where the narcotics activity took place, members of the group congregated, and weapons were stored. The government referred to it as "the stash house." Other members of Kelvin's family also lived there from time to time during this period. Kelvin was incarcerated twice during 2000, but he continued to direct operations from jail.

Beginning in 1998, the group's activities expanded to include violent acts used to promote its narcotics business and strengthen the organization's power. Two separate disputes erupted. The first was with members of the "Hill Crew," a group of people from the Hill section of Norwalk who were also involved in drug trafficking. This dispute began in January 1998 when Willie Prezzie, a friend and relative of Kelvin, was attempting to collect on a drug debt from Hill Crew member Shaki Sumpter. The debt arose when Prezzie fronted Shaki some drugs for street-level distribution and Sumpter failed to pay for them. Sumpter arranged to meet Prezzie and Jermain Buchanan, purportedly to repay the debt. When they met, Buchanan and Prezzie were in a car along with Sean Burden and Demetrius Story. Buchanan was driving. Sumpter and fellow Hill Crew member Rodrick Richardson approached the car, both with guns pointed, and tried to rob Prezzie of money and marijuana. As Buchanan drove away, Sumpter and Richardson fired shots at the car. Sean Burden was struck by the gunfire but not killed.

When Prezzie told Kelvin about the incident, Kelvin wanted to retaliate. He gave weapons stored at the Lincoln Avenue house to Buchanan and David M. Burden (also known as "DMX"), who went with Prezzie in search of Richardson and Sumpter. They were not able to find them, so members of the Burden Organization did nothing more at the time. However, two months later there was an exchange of gunfire between members of the Organization and the Hill Crew outside of the Lincoln Avenue house.

The second dispute was with Marque Young, a drug dealer to whom Kelvin had been supplying crack cocaine for resale. Kelvin became upset with Young in May 1998 when Terrence Burden was injured in a fight and six days later his brother Sean was shot and killed. Although Young was not directly involved in either incident, he was present at both and Kelvin held him responsible for Sean's fatal shooting. Over the next several weeks Young exchanged taunts and insults with Kelvin, Jermain, and other members of the Burden family, and Kelvin and other members of the organization planned but never carried out acts of retaliation. Ultimately, though, on July 1, 1999, Jermain Buchanan and another person carried out a drive-by shooting in front of Young's house where Young and Derek Owens were sitting in Young's car. Owens was killed and Young was wounded such that he is now a paraplegic.2

The violence between the Burden Organization and the Hill Crew resurfaced in June 1999. Richardson, who had been involved in the attempted robbery of Prezzie a year and a half earlier, was at a bar known for drug trafficking at the same time Kelvin was there. Richardson began chastising Kelvin for failing to avenge his brother Sean's death, accusing him of going on with his business and spending money on a Mercedes Benz instead of worrying about who killed his brother. Richardson was outside the same bar the next night when Buchanan came running toward him and shot him. A bullet hit Richardson in the elbow, paralyzing his arm. A month or two later, David L. Burden (known as "QB") got in a dispute with Terra Nivens, a Hill Crew member, over Nivens's relationship with QB's sister. Opposing members of the Burden Organization and the Hill Crew gathered and began facing off, threatening and taunting each other. St. Clair Burden said he wanted to return to the Lincoln Avenue house to get his gun, and Mike Dawson, a Hill Crew member, stepped in and started firing shots into the car in which Kelvin was riding. A bullet from Dawson's gun struck Kelvin in the chest.

Several additional instances of violence occurred between the Burden Organization and the Hill Crew in late 1998 and early 1999, most frequently involving members of the two groups shooting at each other with both sides vowing revenge. Ultimately, the violence ended when key members of the Hill Crew moved away or were incarcerated.

In connection with these incidents, the Burdens, Buchanan, and Boyd were charged in this multi-count indictment. All but Boyd were tried by a jury. Boyd entered a plea of guilty. The jury returned guilty verdicts on many of the counts. All four trial defendants were acquitted of Count Eleven, which charged VCAR attempted murder of Richardson, Hatton, and other members of the Hill Crew on October 10, 1999. The Burdens and Buchanan were all charged with and convicted of the substantive RICO count. Those four individuals were charged with various combinations of ten racketeering acts. The jury found the government proved seven racketeering acts for Kelvin Burden: drug conspiracy (Act 1); conspiracy to murder Rodrick Richardson (Act 2A); attempted murder of Rodrick Richardson on June 27, 1999 (Act 2C); conspiracy to murder Marque Young (Act 3A); attempted murder of Marque Young (Act 3B); murder of Derek Owens (Act 4); conspiracy to murder members of the Hill Crew from in or about August 1999, until on or about October 10, 1999 (Act 5A); and attempted murder of members of the Hill Crew on September 3, 1999 (Act 5B). Kelvin was also found guilty of RICO conspiracy (Count Two); VCAR conspiracy to murder Rodrick Richardson in or about June 1999 (Count Three); VCAR attempted murder of Rodrick Richardson on June 27, 1999 (Count Five); VCAR conspiracy to murder Marque Young (Count Six); VCAR attempted murder of Marque Young (Count Seven); VCAR murder of Derek Owens (Count Eight); VCAR conspiracy to murder members of the Hill Crew (Count Nine); VCAR attempted murder of Fred Hatton and other members of the Hill Crew on September 3, 1999 (Count Ten); conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of a mixture containing a detectable amount of cocaine, and 50 grams or more of a mixture or substance containing a detectable amount of cocaine base (Count Twelve); and possession with intent to distribute and distributing 5 grams or more of a mixture or substance containing a detectable amount of cocaine base (Count Fourteen). Kelvin was sentenced to life in prison.

Jermain Buchanan's RICO conviction was based on six racketeering acts, Acts 1, 2A, 2C, 3A, 3B, and 4. He was also convicted of Counts Two, Three, Five, and Twelve. Buchanan was...

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