 10-3411-cr (L)
 USA v. Rodriguez and Moore

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
 of February, two thousand twelve.

 Present:
          ROBERT D. SACK,
          ROBERT A. KATZMANN,
          BARRINGTON D. PARKER,
                      Circuit Judges.
 ________________________________________________

 UNITED STATES OF AMERICA,

            Appellee,

                    v.                                           Nos. 10-3411-cr (L),
                                                                 10-4214-cr (con)
 JOSE ESCOBAR, also known as RAFA,
 NELSON CALDERON, also known as SHORTY,
 JOHN ROMAN, also known as J.R.,

            Defendants,

 AMADEO RODRIGUEZ, CHRISTOPHER MOORE,
 also known as BLACK BOY, also known as BLACK,

          Defendants-Appellants.
 ________________________________________________

 For Appellee:                    CHARLES N. ROSE, Assistant United States Attorney (Peter A.
                                  Norling, Lara Treinis Gatz, on the brief), for Loretta E. Lynch,
                                  United States Attorney for the Eastern District of New York,
                                  Brooklyn, N.Y.
For Defendant-Appellant            STEVE ZISSOU (Randall D. Unger, on the brief), Steve Zissou
Amadeo Rodriguez:                  & Associates, Bayside, N.Y.

For Defendant-Appellant            JOHN S. WALLENSTEIN, Garden City, N.Y.
Christopher Moore:


       Appeal from the United States District Court for the Eastern District of New York
(Feuerstein, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgments of the district court be and hereby are AFFIRMED.

       Defendants-Appellants Amadeo Rodriguez and Christopher Moore appeal from judgments

of conviction entered by the district court on August 20, 2010. Each was found guilty, after a jury

trial, of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); conspiracy to commit

murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); assault with a dangerous

weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3); conspiracy to commit assault

with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6); three

counts of discharge of a firearm in connection with a crime of violence, in violation of 18 U.S.C. §

924(c)(1)(A)(iii); and three counts of use of explosives to commit a felony, in violation of 18

U.S.C. § 844(h)(1). Rodriguez was also convicted of three additional counts of assault with a

dangerous weapon in aid of racketeering; an additional count of conspiracy to commit assault with

a dangerous weapon in aid of racketeering; an additional count of discharge of a firearm in

connection with a crime of violence; and an additional count of use of explosives to commit a

felony. Rodriguez was sentenced principally to life in prison plus 70 years, and Moore was

sentenced principally to life in prison plus 45 years.




                                                   2
       Rodriguez and Moore, joining in each other’s claims pursuant to Fed. R. App. P. 28(i),

argue on appeal that: (1) the admission of the expert testimony provided by investigator Hector

Alicea violated the Federal Rules of Evidence and the Confrontation Clause of the Sixth

Amendment; (2) the government’s alleged pre-trial deportation of two witnesses violated the

defendants’ right to compulsory process; (3) the district court erred when it denied the defendants’

respective motions to sever; (4) the district court’s “Pinkerton charge” deprived defendants of a

fair trial; and (5) the sentences imposed on the defendants were procedurally and substantively

unreasonable. We assume the parties’ familiarity with the facts and procedural history of this case,

which we discuss only as necessary to explain our decision.

       We first consider the defendants’ contention that the admission of the expert testimony

provided by investigator Hector Alicea violated the Federal Rules of Evidence and the

Confrontation Clause of the Sixth Amendment. Defendants’ convictions arise from their alleged

participation in violence committed by “Neta,”1 a street gang operating on Long Island. The

crimes charged in the seventeen-count superseding indictment (“Indictment”) primarily concern

the following three incidents: (1) an assault committed by Rodriguez and other Neta members on

two individuals in the Freeport Industrial Area of New York on July 18, 2000 (Counts Three

through Five) (the “Freeport Industrial Area Incident”); (2) violent acts committed on January 1,

2001 against members of the rival gang La Mara Salvatrucha (“MS-13"), including Rodriguez’s

fatal shooting of Giovanni Aguilar as he left a house on Jay Street (Counts One, Two, Eight

through Eleven, Fourteen and Fifteen) and Moore’s firing of multiple shots into the same house



       1
        In the briefs, the name of the gang is alternatively spelled “Neta,” “Netas,” and “Nètas.”
We will refer to the gang as “Neta” for the sake of convenience.

                                                 3
(Counts Six, Seven, Twelve, Sixteen) (the “Jay Street Incident”); and (3) Rodriguez’s involvement

in an April 23, 2003 assault with a weapon on MS-13 members on Sunrise Highway in Bellmore,

New York (Counts Nine, Thirteen, and Seventeen) (the “Sunrise Highway Incident”).

       During the trial, which commenced on May 19, 2008, the government called investigator

Hector Alicea, an officer with the New York State Police, as “an expert on the structure and

operation of the Nètas street gang.” Special App. 12. Alicea testified, inter alia, that Neta was a

violent organization whose members were “involved in narcotics trafficking, auto theft, assaults,

murders, robberies,” J.A. 454; that members of Neta could enhance their status within the gang by

“committing crimes on behalf of the gang, whether it be dealing narcotics or stealing cars or

committing assaults or procuring weapons or anything of that nature,” including murder, id. at

457; that Neta members who violated the gang’s rules were disciplined for their infractions and

that the punishment might be in the form of assault “or even sometimes murder,” id. at 456; and

that encounters between members of Neta and MS-13 were generally violent, id. at 461.

       On June 18, 2008, the jury convicted both defendants of all counts with which they were

charged. On October 6, 2008 -- after the defendants had been convicted but before they had been

sentenced -- this Court issued an opinion addressing the admissibility of expert testimony offered

by Hector Alicea in a different case involving the MS-13 gang. See United States v. Mejia, 545

F.3d 179 (2d Cir. 2008). In United States v. Mejia, we held that the district court erred in

admitting Alicea’s testimony for three principal reasons. First, Alicea testified about matters not

beyond the ken of the average juror in violation of Fed. R. Evid. 702. Id. at 194-96. Second,

portions of Alicea’s testimony violated Fed. R. Evid. 703 because he “‘repeat[ed] hearsay

evidence without applying any expertise whatsoever,’ a practice that allows the Government ‘to


                                                  4
circumvent the rules prohibiting hearsay.’” Id. at 197 (quoting United States v. Dukagjini, 326

F.3d 45, 59 (2d Cir. 2003)). Third, Alicea’s repetition of out-of-court testimonial statements made

by individuals during the course of custodial investigations violated the defendants’ Confrontation

Clause rights under Crawford v. Washington, 541 U.S. 36 (2004). Mejia, 545 F.3d at 198-99. We

further found that these errors were not harmless beyond a reasonable doubt with respect to each

required element of the crimes at issue. Id. at 202.

       Following our decision in Mejia, the defendants filed a joint motion for a new trial

pursuant to Rule 33 of the Federal Rules of Criminal Procedure. By Opinion and Order dated

April 5, 2010, the district court denied the motion. See United States v. Rodriguez, No. 03 CR

1342 (SJF), 2010 U.S. Dist. LEXIS 33999 (E.D.N.Y. Apr. 5, 2010). The district court concluded,

inter alia, that Alicea’s testimony was proper and that any error was harmless in any event because

Alicea’s testimony was cumulative of: (1) a stipulation entered into by the government and the

defendants on June 11, 2008 setting forth the facts of the murder case against Joanna Pimentel

(“La Madrina”), the “godmother” of Neta, see generally United States v. Pimentel, 346 F.3d 285

(2d Cir. 2003); and (2) the testimony of four cooperating Neta gang members. See Rodriguez,

2010 U.S. Dist. LEXIS 33999, at *9-12. After denying the motion, the district court proceeded

with sentencing on July 27, 2010.

       On appeal, defendants rely on Mejia to argue that the admission of Alicea’s testimony

violated Rules 702 and 703 of the Federal Rules of Evidence and the Confrontation Clause. We

review the district court’s admission of expert testimony for abuse of discretion, and we will not

find error unless the district court’s ruling was “manifestly erroneous.” Dukagjini, 326 F.3d at 52

(internal quotation marks omitted). Having reviewed the record de novo, we find no error with


                                                  5
respect to the Confrontation Clause. As stated in Mejia, we have determined that an officer

expert’s testimony violates defendants’ Confrontation Clause rights under Crawford “‘if [the

expert] communicated out-of-court testimonial statements of cooperating witnesses and

confidential informants directly to the jury in the guise of an expert opinion.’” Mejia, 545 F.3d at

198 (alteration in original) (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007)).

In this case, unlike in Mejia, there is no evidence that Alicea communicated any out-of-court

testimonial statements to the jury. Defendants’ arguments to the contrary are pure speculation.

We thus find that the admission of Alicea’s testimony did not violate defendants’ Confrontation

Clause rights under Crawford.

       Nonetheless, we conclude that much of Alicea’s testimony was erroneously admitted in

violation of the Federal Rules of Evidence for largely the same reasons explained in Mejia. First,

Alicea’s testimony “went far beyond interpreting jargon or coded messages, describing

membership rules, or explaining organizational hierarchy.” Mejia, 545 F.3d at 195 (internal

citations omitted). By testifying to facts “well within the grasp of the average juror,” id. at 194,

Alicia’s testimony violated Fed. R. Evid. 702. See also United States v. Amuso, 21 F.3d 1251,

1263 (2d Cir. 1994) (“A district court may commit manifest error by admitting expert testimony

where the evidence impermissibly mirrors the testimony offered by fact witnesses, or the subject

matter of the expert’s testimony is not beyond the ken of the average juror.”). Second, Alicea

acknowledged that hearsay evidence -- including blogs, documents, and conversations with other

law enforcement officers -- was the source of much of his information concerning Neta. J.A. 447-

49. Accordingly, his testimony violated Fed. R. Evid. 703. See United States v. Rubi-Gonzalez,

311 Fed. App’x 483, 487 (2d Cir. 2009) (summary order) (“Alicea’s testimony violated Fed. R.

Evid. 703 by transmitting hearsay evidence directly to the jury.”); see also Mejia, 545 F.3d at 197-

98.

                                                   6
       Having found error in Alicea’s testimony, the dispositive question is whether the erroneous

admission of that testimony was “‘harmless beyond a reasonable doubt’ with respect to each

required element of the crime[s]” charged in the Indictment. Rubi-Gonzalez, 311 Fed. App’x at

488 (citation omitted). “Several factors are relevant when evaluating the error’s likely impact: (1)

the strength of the Government’s case; (2) the degree to which the statement was material to a

critical issue; (3) the extent to which the statement was cumulative; and (4) the degree to which the

Government emphasized the inadmissible evidence in its presentation of its case.” Mejia, 545

F.3d at 199. In this case, Alicea’s testimony was relevant to establishing the various RICO

charges alleged in the Indictment. In order to sustain a conviction on the RICO counts, the

government was required to prove that Neta was an enterprise that had an effect on interstate

commerce. It was also required to prove the two predicate acts alleged in the Indictment: (1) that

Neta engaged in acts involving murder; and (2) that Neta engaged in narcotics trafficking.

       Having reviewed the record de novo, we conclude that the government’s case was strong

with respect to each of these elements and that Alicea’s testimony was cumulative of other

admissible evidence in the record. With respect to whether Neta was an enterprise that had an

effect on interstate commerce, the prosecution called four former Neta gang members who testified

extensively about, inter alia, the history of the gang, the hierarchy and structure of the gang, the

rules of the gang, the hand signs of the gang, the meetings traveled to and attended by the gang

members during which prayers were recited, the carrying of guns or other weapons by the

members, the discipline meted out by the gang, the dues collected by the gang from its members

and how the funds were used, and the gang’s tattoos and colors worn by the gang’s members. This

testimony concerning the gang’s history, hierarchy, and internal rules was more than sufficient to


                                                   7
establish that Neta is an “enterprise” under RICO. See generally Boyle v. United States, 556 U.S.

938 (2009). Additionally, several of the cooperating witnesses testified that they traveled to

meetings which drew gang members from multiple states, thus establishing that Neta had an effect

on interstate commerce. Thus, we are satisfied that Alicea’s erroneously admitted testimony on

these issues was harmless beyond a reasonable doubt. See Mejia, 545 F.3d at 200-01 (concluding

that Alicea’s erroneously admitted testimony on both MS-13's enterprise status and effect on

interstate commerce was harmless because it was cumulative of other testimony concerning the

“gang’s structure, membership rules, symbols, . . . history” and interstate activities).

       With respect to whether Neta engaged in acts involving murder, the same four witnesses

testified to the many acts of violence engaged in by the gang’s members, including the murders

committed at the direction of La Madrina. Moreover, and of particular importance, the defendants

themselves stipulated to all of the facts of the murders carried out at the behest of La Madrina.

J.A. 934-37. Thus, in stark contrast to Mejia, where “Alicea was alone in testifying that MS-13

had actually committed eighteen to twenty-two or twenty-three murders in the preceding five

years,” and “much of the remaining evidence consist[ed] of what [was] essentially ‘tough talk,’”

Mejia, 545 F.3d at 201, here the defendants themselves conceded that Neta engaged in acts

involving murder.

       Finally, the four cooperating witnesses offered detailed testimony about Neta’s drug

dealing activities, testimony that was emphasized in summation. For example, witness Jose

Escobar offered extensive testimony about his own drug dealing and that of Neta members

generally:

       Q: Have you ever dealt drugs?
       A: Yes, I did.

                                                  8
       Q: What drugs did you deal?
       A: Coke, Ecstacy and marijuana.
       ...
       Q: Where did you deal your drugs?
       A: Mainly in Freeport.
       ...
       Q: How long were you dealing drugs in Freeport?
       A: Like two or three years.
       ...
       Q: Did you pay your dues [of $2 to $5 at each meeting]?
       A: Yes. I guess I did.
       Q: How did you get the money to pay your dues?
       A: Either I was working or I was selling drugs.
       ...
       Q: And did other Netas members sell drugs?
       A: Yes.
       Q: And of the total amount of Netas members that you were familiar with, what portion or
       what percentage sold drugs?
       A: More than half.
       ...
       Q: Did your membership in the Netas assist you in your drug selling?
       A: Yes, yes.
       Q: How?
       A: They would get me customers. They wouldn’t even try to rob me or something like
       that, because I had protection for that, too.
       Q: Did you ever get drugs from Netas memebrs?
       A: Yes.
       Q: Drugs that you later sold?
       A: Yes.
       Q: Did you ever supply other Netas members with drugs?
       A: Yes.

J.A. 698, 704-05. Other witnesses offered similar testimony. Accordingly, we are convinced that

Alicea’s testimony was cumulative of other evidence in the record with respect to each required

element of the crimes charged, and that the erroneous admission of Alicea’s testimony was

therefore harmless beyond a reasonable doubt. See United States v. Reifler, 446 F.3d 65, 87 (2d

Cir. 2006).




                                                9
       We turn next to defendants’ second argument, i.e., that “the government’s pre-trial

deportation of two witnesses who would have provided material and favorable testimony violated

the [defendants’] right to compulsory process.” Rodriguez’s Br. 52 (capitalization removed). The

Sixth Amendment guarantees a defendant the right “to have compulsory process for obtaining

witnesses in his favor.” U.S. Const. amend. VI. “At the same time, a defendant who alleges a

violation of due process and compulsory process due to a missing witness must show the witness

would have provided ‘favorable evidence which was neither cumulative nor irrelevant.’” United

States v. DeSena, 287 F.3d 170, 176 (2d Cir. 2002) (quoting Singleton v. Lefkowitz, 583 F.2d 618,

623 (2d Cir. 1978)). “Where the prosecution is responsible for the unavailability of a witness, the

defendant’s burden is lighter in this respect, but does not disappear altogether.” Id. (internal

citation omitted); see also United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982)

(“Sanctions may be imposed on the Government for deporting witnesses only if the criminal

defendant makes a plausible showing that the testimony of the deported witnesses would have

been material and favorable to his defense, in ways not merely cumulative to the testimony of

available witnesses.”). In this case, it is unclear whether the government deported just one witness

or both witnesses. We need not address this issue, however, because even assuming the

government deported both witnesses, defendants have not met even their “lighter” burden of

showing that either witness would have provided “favorable evidence which was neither

cumulative nor irrelevant.” Defendants’ assertion that the unavailable witnesses would have

provided favorable evidence is severely undermined by the fact that the defendants voluntarily

declined to introduce the written statements previously given by the very same witnesses at issue.

Indeed, had defendants introduced those statements, the witnesses’ purportedly “favorable


                                                  10
evidence” would have been introduced at trial. Moreover, the evidence was largely cumulative of

the trial testimony provided by Jenny Aguilar. Accordingly, defendants have not shown a

violation of compulsory process.2

       Defendants next argue that the district court erred by denying their motions to sever. There

is a preference in the federal system for joint trials of defendants who are indicted together,

because joint trials promote efficiency and avoid the problem of inconsistent verdicts. See Zafiro

v. United States, 506 U.S. 534, 537 (1993); United States v. Spinelli, 352 F.3d 48, 55 (2d Cir.

2003). “Joint trials are often particularly appropriate in circumstances where the defendants are

charged with participating in the same criminal conspiracy . . . .” Spinelli, 352 F.3d at 55.

However, Rule 14 of the Federal Rules of Criminal Procedure provides that “[i]f the joinder of

offenses or defendants in an indictment, an information, or a consolidation for trial appears to

prejudice a defendant or the government, the court may order separate trials of counts, sever the

defendants’ trials, or provide any other relief that justice requires.” Id. Motions to sever under


       2
          It is unclear to what extent the defendants claim that the purported violation of the right
to compulsory process also constitutes a Brady violation. To the extent defendants do advance
this argument, however, it must fail. It is well established that the government must disclose to
the defense evidence that is favorable to the accused when such evidence is material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). In this case, the government disclosed
the statements of the witnesses well in advance of trial. The government also disclosed the
witnesses’ names about two and one-half months prior to trial. Thus, the evidence at issue was
not suppressed. Morever, even assuming arguendo that the witnesses’ names should have been
disclosed earlier, defendants cannot claim to have suffered prejudice when they declined the
government’s offer to introduce the statements at trial. See United States v. Diaz, 922 F.2d 998,
1007 (2d Cir. 1990) (citing United States v. Brown, 582 F.2d 197, 200 (2d Cir. 1978); Joseph v.
Coyle, 469 F.3d 441, 472 (6th Cir. 2006) (“[I]t appears that the defense declined to re-call [the
witness] for strategic reasons . . . so that choice cannot now be used to attempt to magnify the
prejudice of the delay.”); United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (holding that
there was no prejudice from a delayed disclosure where the “[d]efendant was given every
opportunity to review the tapes [the prosecutor had previously ‘forgotten to turn over’] and to
recall [the witness] if necessary, but he refused to do so”).

                                                  11
Rule 14 are committed to the sound discretion of the district court and are “[c]onsidered virtually

unreviewable.” United States v. Diaz, 176 F.3d 52, 102 (2d Cir. 1999) (internal quotation marks

and citations omitted). “To show an abuse of discretion, a defendant must demonstrate that the

denial of the motion caused substantial prejudice, that is, prejudice so severe as to amount to a

denial of a constitutionally fair trial.” Id. (internal quotation marks and citation omitted).

       Defendants do not come close to meeting these rigorous standards. Rodriguez claims that

severance was required because Rodriguez and Moore relied on “mutually antagonistic” defenses.

Rodriguez’s Br. 60. In order to make a showing of “mutually antagonistic” or “irreconcilable

defenses,” however, “the defendant must make a factual demonstration that acceptance of one

party’s defense would tend to preclude the acquittal of the other.” United States v. Salameh, 152

F.3d 88, 116 (2d Cir. 1998) (internal quotation marks and brackets omitted).       The mere fact that

defense theories are “inconsistent” is insufficient under this standard. Id. In this case, although

Moore’s theory that Aguilar had been murdered by two light-skinned members of Neta was

arguably inconsistent with Rodriguez’s theory that Aguilar had been murdered by two black men,

Moore never suggested that Rodriguez was responsible for the murder. Indeed, Moore specifically

argued that Aguilar had been murdered by two other gang members. Thus, the jury could have

readily found that both Rodriguez and Moore were innocent of the murder. Id.3 For his part,

Moore argues that “joinder of the Freeport Industrial Area incident and the Sunrise Highway

shooting, both of which involved Amadeo Rodriguez and other individuals, and both of which



       3
         Moreover, even “when two defendants both claim they are innocent and each accuses
the other of the crime,” the Supreme Court has concluded that “defendants are not entitled to
severance merely because they may have a better chance of acquittal in separate trials.” Zafiro,
506 U.S. at 540.

                                                  12
included violent acts of assault and weapons use, but neither of which included any reference

whatsoever to Christopher Moore, was extremely prejudicial to Moore.” Moore’s Br. 11

(emphasis omitted). This contention is without merit. A court may properly maintain a joint trial

even if it will result in the admission of testimony about other crimes in which a codefendant

played no part. See Diaz, 176 F.3d at 103. Indeed, because the government in this case was

required to prove the existence of a racketeering enterprise, evidence concerning the Freeport

Industrial Area Incident and the Sunrise Highway Incident would have been admissible against

Moore even in a separate trial. See United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992)

(holding that because the government must prove the existence and pattern of racketeering,

evidence of acts in which the defendants did not play a part is admissible against each defendant

and claims “that separate trials would eliminate the so-called spillover prejudice [are] at least

overstated if not entirely meritless”). We therefore conclude that the district court did not abuse its

discretion in denying defendants’ respective motions to sever.

       We turn next to defendants’ contention that the district court’s Pinkerton charge deprived

them of a fair trial. Under the Pinkerton doctrine, “a jury [may] find a defendant guilty on a

substantive count without specific evidence that he committed the act charged if it is clear that the

offense had been committed, that it had been committed in the furtherance of an unlawful

conspiracy, and that the defendant was a member of that conspiracy.” United States v. Miley, 513

F.2d 1191, 1208 (2d Cir.1975) (citing Pinkerton v. United States, 328 U.S. 640, 645 (1946)). “We

review challenged jury instructions de novo but will reverse only if all of the instructions, taken as

a whole, caused a defendant prejudice.” United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998).




                                                  13
        In this case, defendants argue that because the government’s theory of the case was that

Moore and Rodriguez were the actual perpetrators, “the Pinkerton charge was inappropriate and

unfairly prejudicial[] as it allowed the jury to speculate and to find guilt even if they [sic] felt that

the Government had not proven its case beyond a reasonable doubt.” Moore’s Br. 18. This

argument is unavailing. Although it is true that a Pinkerton charge “should not be given as a

matter of course,” United States v. Sperling, 506 F.2d 1323, 1341 (2d Cir. 1974), this caution is

rooted in a concern that the jury may improperly infer the existence of the conspiracy “from the

series of criminal offenses committed.” Id. at 1342. See also Salameh, 152 F.3d at 149 (“We have

cautioned that the Pinkerton charge should not be given as a matter of course and in particular

where the evidence is such that the jury is required to resort to the inverse of Pinkerton and infer

the existence of a conspiracy from the series of disparate criminal offenses.”) (internal quotations

omitted). Defendants do not assert that this concern is at issue in this case. To the contrary, the

district court’s charge clearly indicated that in order to find the defendants guilty under a

Pinkerton theory of liability, it was essential that the jury first “find beyond a reasonable doubt

that a defendant was a member of a charged conspiracy of the indictment.” J.A. 1074; see also

Salameh, 152 F.3d at 149-50 (“[T]he district court cautiously instructed the jury that [the

defendant] could be found guilty of the substantive crimes only after the jury had concluded that

he was a conspirator.”).

        Moreover, defendants offer no precedent for the proposition that a defendant cannot be

found guilty on a Pinkerton theory of liability once the government has submitted independent

evidence that the defendant committed the substantive crime in question. Indeed, the Pinkerton

Court held that “it is not material that overt acts charged in the conspiracy counts were also


                                                    14
charged and proved as substantive offenses,” Pinkerton, 328 U.S. at 644, and we have

consistently affirmed cases in which a Pinkerton charge was given even when the government

submitted evidence suggesting that the defendant committed or aided the substantive crime(s) in

question. See, e.g., United States v. Malpeso, 115 F.3d 155, 166 (2d Cir. 1997) (argument that the

district court erred in instructing the jury on both aiding and abetting and Pinkerton liability was

“wholly frivolous”); United States v. Harwood, 998 F.2d 91, 100 (2d Cir. 1993) (defendant

possessed controlled substance); United States v. Corr, 543 F.2d 1042, 1050 (2d Cir. 1976)

(defendant “personally committed most of the substantive acts himself during and in furtherance of

the conspiracy”). Accordingly, the district court’s Pinkerton charge was not improper.

       Finally, defendants challenge the sentences imposed by the district court. It is well

established that we review sentences for both procedural and substantive and substantive

reasonableness. United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). When a

defendant fails to object at sentencing to the procedures employed by the district court, the

procedural reasonableness of his sentences is reviewed, not only for abuse-of-discretion, but under

the more deferential plain error standard of review. Id. at 128; United States v. Villafuerte, 502

F.3d 204, 208 (2d Cir. 2007) (“[W]e now expressly hold that rigorous plain error analysis is

appropriate for such unpreserved [sentencing] errors.”). Pursuant to this standard, there must be an

“error” that is “plain” and that affects “substantial rights.” United States v. Olano, 507 U.S. 725,

732 (1993) (internal quotation marks and brackets omitted). Moreover, the decision to correct a

forfeited error lies “within the sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (internal quotation marks omitted).


                                                   15
       In this case, because neither defendant objected to the sentencing procedures employed by

the district court, the procedural reasonableness of their sentences is subject to plain error review.

Although the district court did not discuss the Section 3553(a) factors or the Guidelines on the

record, “we presume, in the absence of record evidence suggesting otherwise, that a sentencing

judge has faithfully discharged her duty to consider the statutory factors[, . . . and] we will not

conclude that the district judge shirked her obligation to consider the § 3553(a) factors simply

because she did not discuss each one individually or did not expressly parse or address every

argument relating to those factors that the defendant advanced.” United States v. Fernandez, 443

F.3d 19, 30 (2d Cir. 2006). See also Verkhoglyad, 516 F.3d at 129 (“While our review is

undoubtedly made easier if a district judge explicitly references the § 3553(a) factors, we have

declined to prescribe any specific verbal formulations to demonstrate the adequate discharge of the

duty to consider matters relevant to sentencing.”) (internal quotation marks and ellipsis omitted)).

Additionally, defendants did not object to the Guidelines calculations set forth in the PSRs, and the

only two issues they did raise with respect to sentencing -- the potential merger of certain counts

and the consecutive nature of certain sentences -- were addressed by the district court on the

record. Moreover, even assuming the district court plainly erred by failing adequately to discuss

its reasoning on the record, we conclude that defendants’ “substantial rights” were not affected

because each defendant received a statutorily-required life term of imprisonment that he does not

challenge on appeal. Thus, we decline to exercise our discretion to correct any forfeited error that

may have been committed in this case.

       Defendants also argue that their sentences were substantively unreasonable because the

imposition of consecutive sentences was “excessive and unreasonable.” Moore’s Br. 23. This


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argument is without merit. It is well settled that separate punishments are authorized for a

substantive crime and conspiracy to commit the same crime. See Callanan v. United States, 364

U.S. 587, 591-95 (1961).

       We have considered the defendants’ remaining arguments and find them to be without

merit. For the reasons stated herein, the judgments of the district court are AFFIRMED.



                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




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