United States v. Pierce

• Decision Date: 11 May 2015
• Docket Number: 13–3930–cr,13–3936–cr.,Docket Nos. 13–3687–cr
• Citation: 785 F.3d 832
• Parties: UNITED STATES of America, Appellee, v. Earl PIERCE, aka Sealed Defendant 3, aka Skeet Box, Melvin Colon, aka Sealed Defendant 2, aka Melly, Joshua Meregildo, aka Sealed Defendant 1, aka Killa, Defendants–Appellants, Nolbert Miranda, aka Sealed Defendant 4, aka PayDay, Lebithan Guzman, aka Sealed Defendant 5, aka Levi, Aubrey Pemberton, aka Sealed Defendant 6, aka Au, Felipe Blanding, aka Sealed Defendant 7, aka Hump, Javon Jones, aka Sealed Defendant 8, aka Capo, Dante Barber, aka Sealed Defendant 9, aka Tay, Nathaniel Fludd, aka Juntao, Orfelina Brito, aka Becky, Kevin Pinero, aka SB, Toshnelle Foster, aka Tosh, Bernard Folks, aka Akon, Hassen Brito, aka 12, Enrique Brito, aka 13, Walter Aponte, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

785 F.3d 832

UNITED STATES of America, Appellee

v.Earl PIERCE, aka Sealed Defendant 3, aka Skeet Box, Melvin Colon, aka Sealed Defendant 2, aka Melly, Joshua Meregildo, aka Sealed Defendant 1, aka Killa, Defendants–Appellants

Nolbert Miranda, aka Sealed Defendant 4, aka PayDay, Lebithan Guzman, aka Sealed Defendant 5, aka Levi, Aubrey Pemberton, aka Sealed Defendant 6, aka Au, Felipe Blanding, aka Sealed Defendant 7, aka Hump, Javon Jones, aka Sealed Defendant 8, aka Capo, Dante Barber, aka Sealed Defendant 9, aka Tay, Nathaniel Fludd, aka Juntao, Orfelina Brito, aka Becky, Kevin Pinero, aka SB, Toshnelle Foster, aka Tosh, Bernard Folks, aka Akon, Hassen Brito, aka 12, Enrique Brito, aka 13, Walter Aponte, Defendants.^*

Docket Nos. 13–3687–cr

13–3930–cr

13–3936–cr.

United States Court of Appeals, Second Circuit.

Argued: Oct. 17, 2014.

Decided: May 11, 2015.

Nola B. Heller, Assistant United States Attorney (Adam Fee, Santosh Aravind, Brian A. Jacobs, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

Gwen M. Schoenfeld, Law Office of Gwen M. Schoenfeld, LLC, New York, N.Y., for Defendant–Appellant Earl Pierce.

Mitchell Dinnerstein, New York, N.Y., for Defendant–Appellant Melvin Colon.

Ying Stafford, New York, N.Y., for Defendant–Appellant Joshua Meregildo.

Before: KEARSE, WESLEY, and CHIN, Circuit Judges.

Opinion

CHIN, Circuit Judge:

Defendants-appellants Earl Pierce, Melvin Colon, and Joshua Meregildo appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Pauley, J. ) on September 25, 2013, following a jury trial at which they were found guilty of, inter alia, conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses. The district court sentenced Pierce principally to 600 months' imprisonment, Colon principally to life plus 420 months' imprisonment, and Meregildo principally to life plus 60 months' imprisonment.

Defendants raise the following issues on appeal: the sufficiency of the evidence as to certain counts, the admissibility of a rap video and images of tattoos posted on a defendant's Facebook page, the constitutionality of certain sections of the Stored Communications Act, 18 U.S.C. §§ 2702 –2703 (the “SCA”), the propriety of certain of the district court's jury instructions, and whether the rule of lenity applies to the district court's sequencing of sentences on multiple firearms convictions under 18 U.S.C. § 924(c).

We affirm the district court in all respects, with one exception. We remand for resentencing with respect to Pierce's firearms convictions, in accordance with the rule of lenity.

STATEMENT OF THE CASE

A. Summary of the Facts

Viewed in the light most favorable to the government, United States v. Vitale, 459 F.3d 190, 191 (2d Cir.2006), the evidence established the following:

Pierce, Colon, and Meregildo were members of a violent street gang, dubbed the Courtlandt Avenue Crew (“CAC”) by the government, that engaged in the trafficking of crack cocaine, heroin, and marijuana in and around the Melrose Public Housing Developments and the Andrew Jackson Houses (the “Melrose–Jackson Houses”) in the Melrose section of the Bronx. CAC was formed in 2010 by Terry Harrison, who recruited young men around the Melrose–Jackson Houses to sell drugs, many of whom—including Meregildo and Colon—were already members of another gang, known as God's Favorite Children, or “GFC.”

Harrison was shot and killed in 2010 by an individual working for the rival “321 Organization.” After Harrison's murder, Meregildo assumed a leadership role in CAC, providing crack cocaine to the street dealers until he was arrested in January 2011. After Meregildo was arrested, Colon took over some of the narcotics operations, supplying crack cocaine to members of CAC as well as to its customers. Colon was arrested on the current charges in September 2011. In addition to their involvement in the extensive narcotics sales, Pierce, Meregildo, and Colon also actively participated in violence perpetrated against rival gangs and suspected law enforcement informants on behalf of CAC.

B. The Proceedings Below

Pierce, Colon, and Meregildo were charged along with more than a dozen other alleged members and associates of CAC, in an indictment filed June 4, 2012. The two-month trial commenced on October 1, 2012.

As part of its case-in-chief, the government called forty witnesses, including six cooperating witnesses. Five of the cooperating witnesses were former members of CAC who testified about the participation of Pierce, Meregildo, and Colon in the narcotics trafficking and violence. The government also offered physical evidence, including seized drugs, drug paraphernalia, and firearms used in the commission of the murders.

Additionally, the government introduced into evidence social media posts by members of CAC, which alluded to the narcotics sales and violent acts, including a rap video from Colon's Facebook page and photographs of his tattoos.

The district court charged the jury on November 28, 2012. The district court delivered an uncalled witness instruction, without making the modifications Meregildo had requested in the charge conference. The jury began its deliberations. The next day, November 29, the jury sent the court a note asking “[a]s related to [Count Fifteen],¹ is the conspiracy limited to the Courtlandt Avenue [C]rew? Or working together or in concert with the Courtlandt Avenue Crew?” Trial Transcript (“Tr.”) 6462. After hearing from both parties on the appropriate response, the district court instructed the jury—over defense objections—that Count Fifteen “does not allege that membership in the narcotics conspiracy requires membership in the Courtlandt Avenue Crew.” Id.

On December 4, 2012, the jury returned guilty verdicts against the defendants on multiple counts. All three defendants were convicted of racketeering (Count One), racketeering conspiracy (Count Two), conspiracy to distribute narcotics (Count Fifteen), and possession of a firearm in furtherance of a drug-trafficking offense (Count Twenty–Eight).

Pierce was also convicted of conspiracy to murder in aid of racketeering (Count Three), a crime of violence in aid of racketeering (Count Eleven), and discharging a firearm in furtherance of a crime of violence (Count Twenty–Four). Colon was also convicted of, inter alia, conspiracy to murder and murder in aid of racketeering (Counts Seven, Eight, and Twelve), assault and attempted murder in aid of racketeering (Count Fourteen), and murder in connection with a drug-trafficking offense (Count Eighteen). Meregildo was also convicted of, inter alia, conspiracy to murder and murder in aid of racketeering (Counts Five and Six), and murder in connection with a drug-trafficking offense (Count Seventeen).

All three defendants moved for judgments of acquittal and a new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. Their motions were denied, and defendants were sentenced as set forth above.

These appeals followed.

DISCUSSION

Defendants present the following issues on appeal: (a) the sufficiency of the evidence with respect to certain counts as to Meregildo and Colon; (b) the admissibility of video and tattoo evidence as to Colon; (c) the constitutionality of the SCA as applied to Colon; (d) the propriety of certain of the district court's jury instructions as to all three defendants; and (e) the calculation of Pierce's sentence.

A. Sufficiency of the Evidence

We review challenges to the sufficiency of evidence de novo.

United States v. Harvey, 746 F.3d 87, 89 (2d Cir.2014) (per curiam). A defendant “bears a heavy burden” because “we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility.” Id. (internal quotation marks omitted). We will sustain the jury's verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

1. Meregildo

Meregildo challenges the sufficiency of the evidence with respect to whether: CAC was an association-in-fact enterprise as contemplated by RICO; he was a part of the alleged narcotics conspiracy; he was involved in the murder of Carrel Ogarro; and Ogarro's murder was in furtherance of the RICO enterprise or for pecuniary gain.

The thrust of Meregildo's principal argument is that the evidence at trial established merely random acts of violence in the vicinity of the Melrose–Jackson Houses, rather than “the organization, continuity, structure or intent of an ‘enterprise’ as intended under RICO.” Meregildo Brief (“Br.”) 38. Specifically, he argues that the government failed to prove that CAC had the requisite hierarchy to satisfy the enterprise element of RICO; CAC lacked sufficient longevity to pursue the enterprise's purpose; and the government failed to establish the separate existence of an enterprise as something distinct from the predicate acts. These arguments fail, both legally and factually.

First, as a matter of law, the requirements for proving a racketeering enterprise are not so rigid as Meregildo contends. As the Supreme Court noted in Boyle v. United States, “an association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a ‘chain of command.’ ” 556 U.S. 938, 948, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). Moreover, there is no hard-and-fast time period for satisfaction of the longevity prong. “Continuity is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S....