United States v. Capers

• Decision Date: 14 December 2021
• Docket Number: Docket No. 17-1836-cr,August Term, 2017
• Citation: 20 F.4th 105
• Parties: UNITED STATES of America, Appellee, v. James CAPERS, aka Mitch, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

20 F.4th 105

UNITED STATES of America, Appellee,

v.James CAPERS, aka Mitch, Defendant-Appellant,^*

Docket No. 17-1836-cr

August Term, 2017

United States Court of Appeals, Second Circuit.

Initially Submitted: May 2, 2018

Last Written Submission: March 18, 2021

Decided: December 14, 2021

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.

Before: Leval and Lynch, Circuit Judges.^**

Gerard E. Lynch, Circuit Judge:

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 18 U.S.C. § 1962(d) ; conspiracy to possess narcotics with intent to distribute, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 ; and murder through the use of a firearm during and in relation to a crime of violence or a narcotics offense, in violation of 18 U.S.C. § 924(j)(1).¹ The district court (William H. Pauley III, J .) sentenced Capers to imprisonment for 444 months (37 years) on the racketeering and narcotics conspiracy charges, to run concurrently, and an additional 60 months (5 years) on the firearm-murder charge. Capers appeals from that judgment.

Capers initially challenged his convictions by arguing that there was insufficient evidence to support the jury's finding that the murder with which he was charged was in furtherance of either the racketeering enterprise or the narcotics conspiracy charged in the indictment, and that the district court erred in failing to instruct the jury that it must find that Capers committed premeditated murder in order to convict him under § 924(j).

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 , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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 § 924(j) was plainly erroneous, and that his conviction on the firearm-murder charge must therefore be vacated.

We agree that under binding precedent from the Supreme Court, RICO conspiracy is not a crime of violence for purposes of § 924(j). Because it is unclear whether the jury based its decision to convict Capers of the firearm-murder offense on the erroneous belief, in light of the trial court's instruction, that RICO conspiracy is such a crime, Capers's conviction of that offense must be vacated. Capers has not shown error as to any other conviction. We therefore VACATE Capers's conviction as to Count Five, AFFIRM the remainder of the judgment, and REMAND for further proceedings consistent with this Opinion.

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 with his involvement in the Leland Crew's racketeering and narcotics activities. Appellant's Br. at 21.

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 months later, in March 2015, Beard was shot and killed by two Taylor Crew members, Elijah Davila and Allen McQueen.

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 his marijuana supply. Once under way, however, he instructed the customer to drive down Taylor Avenue, purportedly to look for one of his suppliers. Capers spotted McQueen, ordered the car to stop, got out of the car and, as described above, shot McQueen, who managed to run a block, still holding his child, before he collapsed and died. Capers returned to the car and told the driver that he had just "blammed" someone. Tr. 563.

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.

DISCUSSION

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 § 924(j) conviction cannot stand because there is no evidence that he murdered McQueen in relation to either the racketeering conspiracy or a drug trafficking crime. Both arguments are meritless.

"We review preserved claims of insufficiency of the evidence de novo ." United States v. Atilla , 966 F.3d 118, 128 (2d Cir. 2020). Even on de novo review, however, "defendants face a heavy burden" because we must sustain the jury's verdict if, "credit[ing] every inference that could have been drawn in the government's favor" and "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Ho , 984 F.3d 191, 199 (2d Cir. 2020) (internal quotation marks omitted). "A court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." Atilla , 966 F.3d at 128 (internal quotation marks omitted).

A. The RICO Conspiracy Charge

As part of Capers's conviction of RICO conspiracy, the...