U.S. v. Applins

• Citation: 637 F.3d 59
• Decision Date: 01 March 2011
• Docket Number: Docket No. 07–2217–cr,Docket No. 07–2372–cr,Docket No. 07–2193–cr(L),Docket No. 07–2312–cr,Docket No. 09–0225–cr,Docket No. 07–2194–cr
• Parties: UNITED STATES of America, Appellee,v.Billy J. APPLINS, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, Skyler Willis, Defendants,Charmish Singletary, Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, Ismail Pierce, Defendants–Appellants.*
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

637 F.3d 59

UNITED STATES of America, Appellee,

v.Billy J. APPLINS, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, Skyler Willis, Defendants,Charmish Singletary, Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, Ismail Pierce, Defendants–Appellants.*

Docket Nos. 07–2193–cr(L); 07–2194–cr; 07–2217–cr; 07–2312–cr; 07–2372–cr; 09–0225–cr.

United States Court of Appeals, Second Circuit.

Argued: June 10, 2010.Decided: March 1, 2011.

Stuart J. LaRose, Law Office of Stuart J. LaRose, Syracuse, NY, for defendant-appellant Charmish Singletary.

Albert J. Millus, Hinman, Howard & Kattell, L.L.P., Binghamton, NY, for defendant-appellant Dennis Jones.David M. Samel, Law Office of David M. Samel, New York, NY, for defendant-appellant Jerrawn Thomas.James E. Long, Law Office of James E. Long, Albany, NY, for defendant-appellant Gregory Thomas.Daniel A. Hochheiser, Hochheiser & Hochheiser, New York, NY, for defendant-appellant William Robinson.Kim P. Bonstrom, Law Office of Kim P. Bonstrom, Shelter Island, NY, for defendant-appellant Ismail Pierce.Elizabeth S. Riker, Assistant United States Attorney (John M. Katko, John G. Duncan, Assistant United States Attorneys, of counsel; Richard S. Hartunian, United States Attorney for the Northern District of New York), for Appellee.Before: MINER, SACK, and HALL, Circuit Judges.MINER, Circuit Judge:

Defendants-appellants appeal from judgments of conviction and sentence entered in the United States District Court for the Northern District of New York (Mordue, C.J.), for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961–68. All were convicted under a one-count indictment charging conspiracy to violate the provisions of 18 U.S.C. § 1962(c) (prohibiting participation in the affairs of an enterprise through a pattern of racketeering activity). The conspiracy was charged as a violation of 18 U.S.C. § 1962(d). Two of the defendants-appellants entered into plea agreements prior to trial. A jury found that the remaining five appellants agreed to participate in a pattern of racketeering activity that included conspiracy to distribute and/or possess with intent to distribute 50 or more grams of crack cocaine. The district court sentenced all defendants-appellants to terms of imprisonment. The terms ranged from 214 months to life. The sentences included terms of supervised release of four to five years and $100 special assessments.

On appeal, the defendants-appellants now bring a host of challenges to their convictions and sentences. We examine with particularity three of the arguments raised by them: (1) whether the existence of a RICO enterprise is a necessary element that the government must prove to establish a RICO conspiracy in violation of 18 U.S.C. § 1962(d); (2) whether there was sufficient evidence to prove an agreement that an enterprise would be established; and (3) whether the district court's failure to require unanimity as to which predicate acts the defendants agreed to commit was reversible error, the district court having instructed the jury that it must find that each defendant agreed to commit at least two racketeering acts and agree unanimously on the type of racketeering acts each defendant agreed to commit. Because all of the defendants' claims are ultimately without merit, for the reasons that follow we affirm the judgments of conviction in all respects but remand defendant-appellant Gregory Thomas's case to the district court for resentencing in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

BACKGROUND

I. Prior Proceedings

This case arises out of the involvement of defendants-appellants in the Elk Block gang. The gang's territory, located in Syracuse, New York, was bordered by South Salina Street on the west, Interstate 81 on the east, Colvin Street on the north, and McAllister Avenue on the south. On July 20, 2005, the seven defendants-appellants, Charmish Singletary, Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, Ismail Pierce, Ronnie Parnell (collectively, the “appellants”), along with nine co-conspirator defendants, Billy J. Applins, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, Skyler Willis (collectively, the “defendants”) (the defendants and appellants, collectively, the “Elk Block Gang” or “Elk Block”), were named in the indictment returned by a grand jury in the United States District Court for the Northern District of New York. Those named in the indictment were accused of being “members and associates of a criminal organization in Syracuse, New York, known as Elk Block, whose members and associates engaged in murders, attempted murders, drug trafficking, witness tampering ¹ and other crimes within the Northern District of New York and elsewhere.” The indictment alleged that the Elk Block Gang, including its “leadership, members, and associates, constituted an enterprise as defined by [ 18 U.S.C. § 1961(4) ]” and that its members conspired to participate in the affairs of the Elk Block enterprise through a pattern of racketeering activity. The indictment also alleged, with regard to the history and development of Elk Block, that

[b]eginning in or about 1995, the exact date being unknown to the grand jury, and continuing thereafter up to the date of the indictment, in the Northern District of New York and elsewhere, the defendants ... together with others known and unknown to the grand jury, being persons employed by and associated with the enterprise known as Elk Block, described in paragraphs 1 through 11 of this indictment, which enterprise engaged in, and the activities of which affected, interstate and foreign commerce, unlawfully, knowingly and intentionally, did combine, conspire, confederate, and agree together and with each other and with others known and unknown to the grand jury, to violate [18 U.S.C. § ] 1962(c), that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity, as that term is defined in [18 U.S.C. § ] 1961(1) and 1961(5), consisting of multiple acts involving: (1) murder, in violation of New York Penal Law sections 125.25, 110.05 and 105.17, and (2) conspiracy to possess with intent to distribute more than 50 grams of cocaine base (crack) and marijuana, as well as possession with intent to distribute and distribution of more than 50 grams of cocaine base (crack) and marijuana, in violation of [21 U.S.C. §§ ] 841(a) and 846; and (3) witness tampering, in violation of [18 U.S.C. § ] 1512(b)(3).

It was part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise.

The indictment described fifty-four racketeering acts, including multiple occasions of narcotics possession and distribution, firearms possession, shootings, and murder.

Pursuant to a plea agreement executed March 21, 2006, appellant Charmish Singletary pleaded guilty to the conspiracy charged in the indictment and admitted to involvement in seven racketeering acts. By virtue of his plea, Singletary admitted to having been responsible either directly or through relevant conduct of his co-conspirators for the distribution of more than 50 but less than 150 grams of crack-cocaine and for possession of a dangerous weapon in connection with his drug trafficking activity. On May 4, 2007, Singletary received a sentence of a 214–month term of imprisonment, a five-year term of supervised release, and a $100 special assessment. Judgment was entered on May 9, 2007, and Singletary timely appealed.

Pursuant to a sealed plea agreement executed February 27, 2006, appellant Ronnie Parnell also pleaded guilty to the conspiracy charge. On May 9, 2007, Parnell received a sentence of a 45–month term of imprisonment, a four-year term of supervised release, and a $100 special assessment. Parnell's term of imprisonment was reduced to 37 months on April 10, 2008, pursuant to an amendment to the crack-cocaine guidelines set forth in U.S.S.G. § 2D1.1(c). Parnell served his 37–month term of imprisonment, but on November 20, 2008, the district court held a revocation hearing at which Parnell admitted to violating five conditions of supervised release. The court then imposed a fifty-month term of imprisonment for Parnell's violations of supervised release. Judgment was entered December 1, 2008, and Parnell timely appealed on December 3, 2008. ²

In addition to appellants Singletary and Parnell, nine co-defendants, Billy J. Applins, James Kelly, Nathan Speights, Joseph Derby, Lonnie Singletary, Gregory Griffin, Andre Applins, Tyler Willis, and Skyler Willis, pleaded guilty and were sentenced to terms of imprisonment ranging from to 121 months, terms of supervised release of 4 to 5 years, and a $100 special assessment.

The remaining five appellants—Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, and Ismail Pierce—proceeded to trial on the indictment. The trial commenced on November 20, 2006. Cooperating defendants, who were former Elk Block gang members, and numerous law enforcement witnesses testified at trial regarding Elk Block's geographic territory, gang signs, graffiti, clothing, tattoos, drug dealing, use of firearms, and utilization of violence for the protection and maintenance of control over the cocaine base (crack) sales in Elk Block territory. At trial, there was also evidence of a multitude of shootings and several murders. On December 19, 2006, following four weeks of trial and two days of deliberations, the jury rendered guilty verdicts as to all five defendants including findings that Dennis Jones, Jerrawn Thomas, Gregory Thomas, William Robinson, and Ismail Pierce each agreed to a pattern of racketeering activity...