     07-2729-cr
     USA v. Young


 1                         UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                 August Term, 2008
 6
 7
 8          (Argued: May 12, 2009           Decided: October 8, 2009)
 9
10                               Docket No. 07-2729-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   UNITED STATES OF AMERICA,
15
16                  Appellee,
17
18                  -v.-                                    07-2729-cr
19
20   LAVAL FARMER,
21
22                  Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26          Before:             JACOBS, Chief Judge, WALKER and LEVAL,
27                              Circuit Judges.
28
29          Defendant-Appellant, Laval Farmer, appeals from a June

30   22, 2007 judgment of conviction entered in the United States

31   District Court for the Eastern District of New York (Platt,

32   J.).    Farmer was convicted by a jury of murder, attempted

33   murder, and conspiracy to assault with a dangerous weapon,

34   in violation of the Violent Crimes in Aid of Racketeering

35   statute, 18 U.S.C. § 1959(a), and of related firearms
1    offenses under 18 U.S.C. § 924(c).    We reject Farmer’s

2    argument that there was insufficient evidence to sustain the

3    convictions, but we conclude that he was denied due process

4    by the prosecutors’ gratuitous exploitation of his

5    prejudicial nickname, “Murder.”    As a result, Farmer is

6    entitled to a new trial for the attempted murder of Jacquel

7    Patterson, and the related firearms offenses.    We affirm

8    Farmer’s convictions for conspiracy to assault with a

9    dangerous weapon and the murder of Jose White, because the

10   strength of the evidence precludes finding substantial

11   prejudice.   Affirmed in part, vacated in part, and remanded.

12                                 JEREMY G. EPSTEIN (Seth M. Kean,
13                                 Grace Lee, Rebecca Boon, Of
14                                 Counsel, on the brief), Shearman
15                                 & Sterling LLP, New York, NY,
16                                 for Defendant-Appellant.
17
18                                 ILENE JAROSLAW, Assistant United
19                                 States Attorney (Peter A.
20                                 Norling, Assistant United States
21                                 Attorney, on the brief), for
22                                 Benton J. Campbell, United
23                                 States Attorney for the Eastern
24                                 District of New York, Brooklyn,
25                                 NY , for Appellee.
26
27   DENNIS JACOBS, Chief Judge:
28
29       Laval Farmer was convicted by a jury in the United

30   States District Court for the Eastern District of New York

31   (Platt, J.) of murdering Jose Angel White and attempting to

                                    2
1    murder Jacquel Patterson “for the purpose of . . .

2    maintaining or increasing [Farmer’s] position” within the

3    Bloods street gang, 18 U.S.C. § 1959(a), as well as

4    conspiring to assault with a dangerous weapon and

5    discharging firearms during the murder and the attempted

6    murder.   At trial, the government elicited testimony that

7    Farmer’s friends and fellow Bloods knew him by the nickname

8    “Murder,” an appellation that Farmer had acquired years

9    before and that had little, if any, relevance to any

10   contested issue.

11       Farmer’s nickname, which would be problematical and

12   suggestive in any case involving violent crime, posed a

13   heightened risk of prejudice because the crimes charged

14   included murder and attempted murder.   Farmer objected to

15   the use of his nickname in the indictment, and he offered to

16   concede identification to avoid its use at trial.     But the

17   government declined Farmer’s offer, and the district court

18   admitted the name.   Thereafter, the prosecution used the

19   nickname promptly, repeatedly, and in ways calculated to

20   intensify the prejudice.

21       When a defendant charged with a crime of violence is

22   identified before a jury by a nickname that bespeaks guilt,



                                   3
1    violence, or depravity, the potential for prejudice is

2    obvious.     Before receiving such evidence over a defendant’s

3    objection, a trial court should consider seriously whether

4    the probative value is substantially outweighed by any

5    danger of unfair prejudice, Fed. R. Evid. 403, and whether

6    introduction of the nickname is truly needed to identify the

7    defendant, connect him with the crime, or prove some other

8    matter of significance.     Even so, a potentially prejudicial

9    nickname should not be used in a manner beyond the scope of

10   its proper admission that invites unfair prejudice.     Federal

11   Rule of Evidence 404(a) provides (with exceptions not

12   applicable here) that “[e]vidence of a person’s character or

13   a trait of character is not admissible for the purpose of

14   proving action in conformity therewith on a particular

15   occasion.”     It is the ethical obligation of the prosecutor,

16   and the legal obligation of the court, to ensure that this

17   rule is observed.

18       In this case, the prosecutors, in their addresses to

19   the jury, invited prejudice by repeatedly emphasizing

20   Farmer’s nickname in a manner designed to suggest that he

21   was known by his associates as a murderer and that he acted

22   in accordance with that propensity in carrying out the acts



                                     4
1    charged in the indictment.   This abuse of Farmer’s nickname

2    entitles Farmer to a new trial for the attempted murder of

3    Patterson and the related firearms offenses.        However, we

4    affirm Farmer’s convictions for murdering Jose White,

5    discharging a firearm during that offense, and conspiring to

6    assault, because the evidence so overwhelmingly established

7    his guilt respecting those offenses as to nullify any

8    prejudice resulting from the inappropriate argument to the

9    jury.

10       Farmer also argues that his killing of White, a child

11   on a bicycle wearing the wrong color clothing, was so

12   obviously a mistake that no other intent can be reasonably

13   ascribed to the act, and that his attempted killing of

14   Patterson, another Blood, was so obviously motivated by

15   personal animus that this act likewise cannot reasonably be

16   attributed to an intent to increase Farmer’s status as a

17   Blood--an element of the offense.        We conclude that the

18   government introduced sufficient evidence that the murder

19   and attempted murder were committed “for the purpose of

20   . . . maintaining or increasing [Farmer’s] position in” the

21   Bloods.   18 U.S.C. § 1959(a).       This was shown by the Bloods’

22   governance and code, the conversations and conduct of Farmer



                                      5
1    and other Bloods at and around the time of the crimes, and

2    Farmer’s self-promoting boasts.

3         Finally, we conclude that Farmer is not entitled to

4    relief on the ground that White’s relatives wore T-shirts in

5    the courtroom displaying White’s photograph.     Accordingly,

6    the judgment of the district court is affirmed in part,

7    vacated in part, and remanded.

8

9                                 BACKGROUND

10   A.   The Government’s Case

11        Farmer was convicted for the murder of fourteen-year-

12   old Jose Angel White in Roosevelt, New York on September 23,

13   2001, and the attempted murder of Jacquel Patterson in

14   Wilkes-Barre, Pennsylvania on July 15, 2002.     The indictment

15   charged that these acts came within the scope of § 1959(a)

16   because Farmer committed them “for the purpose of . . .

17   maintaining or increasing” his status in the Bloods street

18   gang, which was a racketeering enterprise.     18 U.S.C. §

19   1959(a).

20   1.   The Bloods

21        Farmer was a member of the Velt Gangsta Lanes (“VGL”)

22   of Roosevelt, New York, on Long Island, a subgroup of the


                                      6
1    larger Bloods gang.   The VGL was associated with other

2    Bloods subgroups on Long Island.

3        Aspiring members of the Bloods were required to commit

4    acts of violence to be eligible for membership.    Members

5    were initiated by being “blessed in” (vouched for by

6    existing members) or “jumped in” (beaten by five Bloods for

7    55 seconds).

8        Bloods operated under a code of loyalty that required

9    members to take on their associates’ problems as their own.

10   Disagreements and grievances were resolved through violence,

11   including stabbing or shooting.    The leadership of the VGL

12   promoted “gang banging,” or beating people up, to “represent

13   the neighborhood.”

14       A member “gain[ed] status” within the gang by

15   “put[ting] in work,” which entailed committing acts of

16   violence, including attacking rival gangs.    Status was

17   denoted by titles, which ranged upward from “baby gangsta”

18   to “original gangsta,” or “OG.”

19       During 2000 and 2001, VGL members met regularly at

20   Centennial Park and in an abandoned house on Hanson Place,

21   both in Roosevelt, New York.   Gang members wore specific

22   colors, had gang tattoos, and flashed signs to fellow


                                    7
1    Bloods.

2    2.   Murder of Jose Angel White

3         On the evening of Saturday, September 22, 2001, VGL

4    members who gathered at Centennial Park learned that two VGL

5    members (Roach and Shoke) had been hit by a car and beaten

6    with baseball bats by members of the rival Crips gang.     The

7    VGL members discussed retaliation and dispersed looking for

8    revenge.

9         Later that evening, Farmer attended a party in Glen

10   Cove, New York with fellow Blood Kashawn Jackson.     There,

11   Farmer spoke with Jackson and Gregory Key, another Blood,

12   about the attack on Roach and Shoke.     Farmer said that “he

13   knew who did it,” and the three agreed to “[t]ake a ride out

14   to Roosevelt, see the guy who did it.”     Jackson arranged for

15   Melissa Petrizzo, the girlfriend of a Blood, to pick them up

16   in front of a housing project in Glen Cove.     Before getting

17   into Petrizzo’s car, Farmer asked Key if he “had a burner”

18   (a gun); Key assured him that he did.

19        Once in Roosevelt, the group stopped near a convenience

20   store where Farmer thought the offending Crips might be, but

21   Farmer and Key did not find them inside.     As the two walked

22   back to the car, Farmer asked Key whether he could carry the


                                   8
1    gun.       Key responded, “yeah, but if you use it, you have to

2    pay for it.” 1     Farmer took the gun from Key.

3           Back in the car, Key asked Farmer where a certain Crip

4    lived.       Farmer said he knew, but expected only the Crip’s

5    mother to be home.       Key suggested that they shoot up the

6    house anyway, because he wanted to increase respect for the

7    Bloods and because he needed to repair his status within the

8    gang after having undergone drug rehabilitation in Virginia.

9           Petrizzo objected and kept driving, until Farmer saw

10   two boys on bicycles, one of them dressed “in all blue”

11   (i.e., color-coded as a Crip).        Farmer pointed and said,

12   “there they go right there”; directed Petrizzo to pull over

13   and turn off the lights; and then got out of the car, took a

14   few steps, and fired three shots at the two boys from a

15   distance of approximately five feet.        Farmer got back into

16   the car, dropped the gun at Key’s feet, and told Petrizzo to

17   drive back to Glen Cove.

18          As Petrizzo drove away, an ambulance passed going in

19   the other direction.       Farmer excitedly proclaimed, “I got

20   those crabs” (Bloods slang for Crips).        Petrizzo dubiously


            1
            Key testified that the gun would be too risky to own
     if used to kill someone and that he would need to replace it
     if that happened.
                                       9
1    observed that the victim looked like a little boy, but

2    Farmer responded, “[t]hat wasn’t a little boy.   I knew who

3    it was.”

4        Later that afternoon, Farmer visited Petrizzo and her

5    Blood boyfriend, boasted that “I got a body,” and confirmed

6    to Petrizzo that the victim had died.   Farmer eventually

7    discovered that he had killed Jose White, a popular

8    fourteen-year-old boy who was not a Crip.   After the

9    shooting, Farmer “felt like his name may come up, so he had

10   to get out of town.”

11   3. Farmer’s Move from New York and Attempted Murder of
12   Jacquel Patterson
13
14       In December 2001, three months after the White

15   shooting, Farmer moved to Wilkes-Barre, Pennsylvania, where

16   he associated with fellow Bloods Damion Russell and Jacquel

17   Patterson.   Russell was a high-ranking “OG” member of the

18   Bloods who had enhanced his status living in California and

19   assumed leadership of the VGL when he returned to New York.

20   Russell imposed discipline within VGL ranks and imported

21   west-coast traditions.

22       Farmer told Russell that he had been driving around

23   with Key, Jackson, and Petrizzo looking for “any Crip he

24   could see,” and boasted that he had avenged the attack on

                                   10
1    the Bloods by shooting “a Crips.”   Russell suggested that

2    Farmer go back to Glen Cove to make sure the gun was

3    destroyed, which Farmer did in December 2001.

4        In Wilkes-Barre, Farmer and his girlfriend Stacey moved

5    in with Russell, then moved out a few weeks later to live

6    with one of Russell’s friends, Khasan Dancy, who had a

7    larger house.   Jacquel Patterson and his girlfriend were

8    also living in the house when Farmer moved in.   Farmer,

9    Patterson, and Dancy sold crack together.

10       Farmer’s relationship with Patterson developed into

11   hostility.   Russell testified that Farmer viewed Patterson

12   as “soft” and “weak.”   One day, when Dancy and Patterson got

13   into a bar fight with men from Philadelphia, Farmer stabbed

14   one of the Philadelphia men to help out, and became angry

15   when Dancy and Patterson did not back him up or show

16   appreciation.   Worse, Patterson expressed the view that the

17   VGL was an illegitimate and inferior Bloods set, to which

18   Farmer and Russell took offense.

19       In July 2002, Farmer and Patterson bought narcotics

20   from a man named Udi, whom Farmer greeted with the Bloods

21   salute.   When Udi brushed off the salute and mocked the VGL

22   set, Farmer objected, Udi drew a gun, and Farmer was forced



                                   11
1    to stand down.   Patterson gloated at Farmer’s humiliation.

2    Furious, Farmer visited Patterson’s house, punched cabinets,

3    argued, and discharged his gun.       After leaving Patterson’s

4    house, Farmer called Russell, demanded that he identify

5    himself as a member of the VGL, and told him “that he was

6    sick of [Patterson], that he can’t take it no more, and that

7    he was about to give it to [him].”

8        Farmer and Russell agreed to teach Patterson a lesson

9    and again visited Patterson’s house.       While Russell waited

10   in the front doorway of the home, Farmer and Patterson

11   walked to Patterson’s bedroom.       After they entered the

12   bedroom, Patterson’s girlfriend, Esther Ross, heard the

13   rapid firing of seven to eight gunshots.       During the

14   fussilade, Ross heard Patterson apologize repeatedly and

15   plead for his life.     After Patterson stopped pleading, Ross

16   heard two more shots.     Patterson suffered gunshot wounds to

17   his body, legs, arms, and face, but survived.

18       After the shooting, Farmer recounted to Russell that he

19   followed Patterson into the room; that Patterson moved

20   toward the bed, urging Farmer to “hold on”; that Farmer

21   started shooting, while Patterson apologized repeatedly;

22   that when Farmer stopped firing, he found a 9 millimeter



                                     12
1    pistol under the mattress that Patterson had been

2    approaching; and that Farmer retrieved the pistol and used

3    it to shoot Patterson in the face.        Russell gave Farmer

4    money and arranged for him to flee to New York.

5    4.     Farmer’s Arrest and Post-Arrest Statements

6           Farmer was arrested the day he arrived back in Nassau

7    County, July 16, 2002.        When the police moved in to arrest

8    Farmer, he fled by car, was pulled over, and fled on foot

9    into a house, where he was arrested.        During the arrest, a

10   second group of officers found a 9 millimeter pistol in the

11   car.        Farmer told the Nassau County police that he had just

12   arrived from Virginia, where he had been living with his

13   girlfriend Stacey and doing construction work for the past

14   three or four months, 2 that he did not shoot anybody in

15   Pennsylvania, that he had no role in the White murder, and

16   that he did not know whose pistol was in the car.

17          On October 31, 2002, Farmer pleaded guilty in state

18   court to possession of the 9 millimeter found in his car at

19   the time of his arrest, which was identified as one of the

20   weapons used in the Patterson shooting.


             2
            Stacey testified that she never lived in Virginia,
     and that she and Farmer were living in Wilkes-Barre in the
     months before his arrest.
                                        13
1    B.   The Indictment and Trial

2         Farmer was charged in a superseding indictment with:

3    conspiracy to assault with a dangerous weapon in aid of

4    racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count

5    One); murder in aid of racketeering, in violation of 18

6    U.S.C. § 1959(a)(1) (Count Two); use of a firearm in

7    connection with murder in aid of racketeering, in violation

8    of 18 U.S.C. § 924(c) (Count Three); attempted murder in aid

9    of racketeering, in violation of 18 U.S.C. § 1959(a)(1)

10   (Count Four); and use of firearms in connection with

11   attempted murder in aid of racketeering, in violation of 18

12   U.S.C. § 924(c) (Counts Five and Six).

13        The two-week jury trial started February 7, 2006 and

14   ended February 22, 2006.     The government elicited testimony

15   from numerous lay and law enforcement witnesses.     Petrizzo

16   testified, pursuant to a cooperation agreement, about

17   driving the car on the night of White’s murder, the sequence

18   of events leading up to the crime, and Farmer’s inculpatory

19   admissions thereafter.     Three Bloods testified pursuant to

20   cooperation agreements: Key, who was in the car with Farmer

21   on the night of White’s murder (and who supplied the gun);

22   Russell, whom Farmer associated with in Wilkes-Barre; and


                                     14
1    Zanne Brown, who was a friend of White and who attended the

2    meeting at Centennial Park on the night of his murder.

3        Kahiem Seawright, the friend bicycling with White the

4    night he was murdered, testified to seeing a car pull up and

5    turn off its lights before a man wearing a hooded sweatshirt

6    came out, pulled out a gun, and shot White. 3

7        Other government witnesses included investigating

8    officers from Nassau County and Wilkes-Barre, emergency

9    services workers, and a ballistics expert.

10       Farmer called two witnesses.   Special Agent James

11   Langtry was questioned about notes from his interview with

12   Key reflecting that Key fired the first shots at White.

13   Farmer’s wife, Stacey Farmer, testified about Patterson’s

14   jealousy of Farmer’s interactions with Patterson’s

15   girlfriend--testimony evidently intended to inject a sexual

16   motive into the conflict between Farmer and Patterson, and

17   thereby rebut that Farmer’s purpose was to increase his

18   status in the Bloods.

19       Farmer moved pre-trial to strike references to his

20   nickname “Murder” from the indictment.   The district court



          3
            Key testified that Farmer was wearing a hooded
     sweatshirt when he committed the murder.
                                   15
1    denied the motion, ruling that “if the government’s

2    witnesses and one or more material witnesses have identified

3    him to provide a nickname for the name ‘Murder’ or what have

4    you, they are entitled to use that name in the [i]ndictment

5    for that limited purpose.”    The court explained that, to

6    keep the nickname in the indictment, the government would be

7    required to elicit trial testimony from witnesses who knew

8    Farmer by that name.    Farmer then asked that the government

9    avoid referring to him as “Murder” in its questions and that

10   it avoid eliciting testimony in which witnesses might call

11   him “Murder.”   Farmer stressed that he was the only

12   defendant on trial, that identity was not at issue, and that

13   he would waive any identification requirement to avoid

14   prejudice from use of his nickname.

15       The district court initially indicated that it would

16   consider precluding testimony mentioning the name “Murder,”

17   but accommodated the government’s protest and ruled that

18   “[i]f the witness knows this man by the name of ‘Murder’ he

19   can so testify.”

20       At trial, several government witnesses testified to

21   knowing Farmer as “Murder” and used the nickname repeatedly

22   in their testimony.    Similarly, the government used the name


                                    16
1    in its questions and dozens of times in argument to the

2    jury.

3         On February 22, 2006, Farmer was convicted on all

4    counts.

5    C.   Sentencing

6         On June 20, 2007, Farmer was sentenced principally to

7    two terms of life imprisonment for the murder and attempted

8    murder counts.    Farmer was also sentenced to a term of three

9    years’ imprisonment on the conspiracy count and consecutive

10   terms of 25 years’ imprisonment for the firearms offenses

11   charged in Counts Three, Five, and Six. 4

12

13                              DISCUSSION

14                                  I

15        Farmer challenges the sufficiency of the government’s

16   evidence.   We must affirm if “‘any rational trier of fact

17   could have found the essential elements of the crime beyond


             4
            The judgment of conviction and sentencing transcript
     do not specify whether Farmer’s sentences on Counts One,
     Two, and Four are to run consecutively or concurrently. In
     the absence of an explicit statement from the district court
     (or a congressional mandate) the sentences on those counts
     are to run concurrently. See 18 U.S.C. § 3584(a) (“Multiple
     terms of imprisonment imposed at the same time run
     concurrently unless the court orders or the statute mandates
     that the terms are to run consecutively.”).
                                    17
1    a reasonable doubt.’”    United States v. MacPherson, 424 F.3d

2    183, 187 (2d Cir. 2005) (quoting Jackson v. Virginia, 443

3    U.S. 307, 319 (1979)).   We “review the evidence in the light

4    most favorable to the government, drawing all reasonable

5    inferences in its favor.”   United States v. Gaskin, 364 F.3d

6    438, 459 (2d Cir. 2004).

7    A.   VICAR Statute

8         Farmer was convicted on three counts of violating the

9    Violent Crimes in Aid of Racketeering (“VICAR”) statute, 18

10   U.S.C. § 1959(a), which provides, in relevant part:

11             Whoever . . . for the purpose of gaining
12             entrance to or maintaining or increasing
13             position in an enterprise engaged in
14             racketeering activity, murders, kidnaps,
15             maims, assaults with a dangerous weapon,
16             commits assault resulting in serious bodily
17             injury upon, or threatens to commit a crime
18             of violence against any individual in
19             violation of the laws of any State or the
20             United States, or attempts or conspires so
21             to do, shall be punished--
22
23             (1)   for  murder,  by   death  or   life
24             imprisonment, or a fine under this title,
25             or both;
26
27             * * *
28
29             (6) for attempting or conspiring to commit
30             a crime involving maiming, assault with a
31             dangerous weapon, or assault resulting in
32             serious bodily injury, by imprisonment for
33             not more than three years or a fine of
34             under [sic.] this title, or both.

                                    18
1    18 U.S.C. § 1959(a)(emphasis added).    Farmer argues that the

2    government failed to prove beyond a reasonable doubt that

3    his “purpose” in shooting White and Patterson was

4    “maintaining or increasing position in” the Bloods, id., the

5    enterprise identified in the indictment.

6        “Although section 1959(a) does not define the phrase

7    ‘for the purpose of . . . maintaining or increasing position

8    in an enterprise,’ we interpret that phrase by its plain

9    terms, giving the ordinary meaning to its terms.”    United

10   States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001) (internal

11   citation omitted).   “Webster’s defines ‘maintain’ as to

12   ‘preserve from failure or decline’ or ‘to sustain against

13   opposition or danger,’ WEBSTER’S THIRD NEW INTERNATIONAL

14   DICTIONARY 1362 (1993), and increase as ‘to become greater

15   in some respect’ (listing as examples, size, value, power,

16   authority, reputation and wealth).”    Id.   Accordingly,

17   “section 1959 encompasses violent crimes intended to

18   preserve the defendant’s position in the enterprise or to

19   enhance his reputation and wealth within that enterprise.”

20   Id. (emphases omitted).

21       Dhinsa “broadly interpreted the motive requirement,”

22   and “‘reject[ed] any suggestion that the ‘for the purpose


                                   19
1    of’ element requires the government to prove that

2    maintaining or increasing position in the . . . enterprise

3    was the defendant’s sole or principal motive.’”     Id.

4    (quoting United States v. Concepcion, 983 F.2d 369, 381 (2d

5    Cir. 1992)).    “[T]he motive requirement is satisfied if ‘the

6    jury could properly infer that the defendant committed his

7    violent crime because he knew it was expected of him by

8    reason of his membership in the enterprise or that he

9    committed it in furtherance of that membership.’”       Id.

10   (quoting Concepcion, 983 F.2d at 381); see also United

11   States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir. 2003).

12          Concepcion, which considered whether a defendant could

13   be liable under § 1959 for shooting someone other than the

14   intended victim, “reject[ed] the suggestion that the

15   government must prove that the victim of the violence was

16   the defendant’s intended target,” and applied the “well

17   established” principle that “a defendant who planned to

18   murder one person and, in so attempting, killed another is

19   guilty of the murder of the unplanned victim.”    983 F.2d at

20   381.    We concluded in Concepcion that

21              It was sufficient for the government to
22              prove that [the defendant], as a member of
23              a[n]   .  .   .   enterprise  engaged   in
24              racketeering activity, set out to commit a

                                    20
1             proscribed act of violence in order to
2             maintain or increase his position in the
3             enterprise, and that, in the course of so
4             doing, he committed that act against a
5             person who got in his way.

6    Id. at 382.

7        For the reasons that follow, we conclude that Farmer’s

8    sufficiency challenge is foreclosed by these precedents.

 9   B. Conspiracy to Assault Rival Gang Members with Dangerous
10   Weapons (Count One)
11
12       Farmer argues that the government introduced no

13   evidence of a conspiracy to use dangerous weapons on the

14   night that White was murdered.       Although Farmer concedes

15   that he set out with Key and Jackson looking to “beat down”

16   a Crip, he asserts that his fellow Bloods did not anticipate

17   using dangerous weapons in the attack.

18       The government established that on the night of White’s

19   murder, Farmer told Key that “he knew who [attacked their

20   fellow VGL members],” and that the men agreed to “[t]ake a

21   ride out to Roosevelt, [to] see the guy who did it.”       The

22   verb “see” is surely a euphemism.       In any event, before

23   getting into the car, Farmer confirmed that Key had a gun,

24   and the two men entered a corner store, with the gun,

25   looking for Crips to assault.

26       As they left, Farmer borrowed Key’s gun, and Key

                                     21
1    stipulated that Farmer would have to replace it if he used

2    it.   Upon returning to the car, Key suggested using the gun

3    to shoot up a Crip’s house; Farmer instead used the gun to

4    kill White.

5          Farmer focuses on Key’s testimony that Key brought the

6    gun for protection.   But Key could have brought the gun for

7    protection and in anticipation of assaulting a Crip if the

8    need or opportunity presented itself.        Moreover, it is

9    apparent that Key contemplated Farmer’s use of the gun, as

10   evidenced by his warning that Farmer would have to replace

11   it if he did.   Based on this evidence, it was reasonable for

12   the jury to conclude that Key and Farmer conspired to

13   assault Crips using Key’s gun (a dangerous weapon).

14   C. Murder of Jose White and Discharge of a Firearm During
15   the Offense (Counts Two and Three)
16
17         Farmer argues that the government failed to adduce

18   sufficient evidence to satisfy the VICAR statute’s position-

19   related motivation element as to the murder of Jose White.

20   However, the government introduced substantial evidence that

21   the Bloods deemed an attack against one Blood to be an

22   attack against all, and that Bloods could rise within the

23   gang by defending their peers and committing acts of

24   violence against rival gangs.        By shooting White--whom

                                     22
1    Farmer believed to be one of the Crips who had attacked

2    Roach and Shoke--Farmer conformed to the expectations of the

3    Bloods enterprise.   An exultant Farmer boasted about the

4    crime to his fellow Bloods in the days and months that

5    followed.   A reasonable jury could infer from these facts

6    “that [Farmer] committed his violent crime because he knew

7    it was expected of him by reason of his membership in the

8    enterprise or that he committed it in furtherance of that

9    membership.”   Dhinsa, 243 F.3d at 671 (quoting Concepcion,

10   983 F.2d at 381).

11       Farmer argues that the government’s theory--that he and

12   two friends set off on their own to avenge the attack on

13   Roach and Shoke--was inconsistent with the depiction of the

14   Bloods as a well-organized hierarchy, in which authorization

15   to retaliate would come from superiors.   But Farmer cites no

16   evidence that such authorization was required.   To the

17   contrary, the evidence showed that Bloods were expected to

18   aid one another without prompting.   Moreover, the VGL

19   members jointly agreed to seek revenge at the meeting in

20   Centennial Park on the night of the murder; from that, the




                                   23
1    jury could infer that the attacks were authorized. 5

2        Farmer also argues that killing an innocent fourteen-

3    year-old could not serve the interest of the Bloods, and

4    that his move to Pennsylvania after the crime was evidence

5    that the gang did not condone his actions.   In support,

6    Farmer cites United States v. Bruno, 383 F.3d 65, 82-86 (2d

7    Cir. 2004), and United States v. D’Angelo, No. 02-cr-

8    399(JG), 2004 WL 315237, at *1-14 (E.D.N.Y. Feb. 18, 2004),

9    decisions vacating VICAR convictions because of evidence

10   that the killings were against the interests of the

11   defendants’ enterprises.

12       However, the question is not whether Farmer’s position

13   in the Bloods was advanced in fact by the murder he

14   committed, but whether his purpose in committing the murder

15   was to benefit his position.    We held in Concepcion that a

16   defendant’s intent to increase his position in an enterprise

17   can be transferred to an accidental killing.    983 F.2d at

18   381-82.   In this case, there was ample evidence that Farmer

19   intended to kill a Crip (and initially believed he had), and

20   that at least part of his purpose in doing so was to raise


          5
            Zanne Brown, a trial witness who attended the meeting
     in Centennial Park, testified that he went out that night
     and fired shots at Crips.
                                    24
1    his status in the Bloods.

2          Farmer contended at oral argument that notwithstanding

3    Concepcion, the position-related motivation element was not

4    satisfied because the killing was so obviously a mistake

5    that it would be irrational to attribute it to his

6    membership in the Bloods.    But the evidence showed that

7    Farmer shot a teenager wearing a Crip color, where Crips

8    might be found.   The blunder does not alter the intent.

9          As to Bruno and D’Angelo, neither decision controls

10   this case because the shootings in those cases did not

11   involve mistaken identity.    The defendants in Bruno and

12   D’Angelo intended to shoot (and did shoot) people whose

13   killing could not have enhanced the defendants’ status.     See

14   Bruno, 383 F.3d at 82-86; D’Angelo, 2004 WL 315237, at *1-

15   14.   For all of these reasons, we conclude that the

16   government’s evidence satisfied the requirement of the VICAR

17   statute that, in killing White, Farmer acted for the purpose

18   of maintaining or increasing his position in a racketeering

19   enterprise.

20   D. Attempted Murder of Jacquel Patterson and Discharge of
21   Firearms During the Offense (Counts Four, Five, and Six)
22
23         Farmer also challenges the sufficiency of the evidence

24   that he shot Patterson to enhance his position in the

                                    25
1    Bloods.   Although we reject Farmer’s argument, the Patterson

2    shooting presents a closer question.

3        The government argues that Farmer’s conflict with

4    Patterson stemmed from Patterson’s lack of respect for the

5    VGL, and from Patterson’s gloating when Farmer was

6    humiliated by Udi during a drug transaction.     The government

7    posits that Farmer grew tired of these insults and that he

8    shot Patterson to defend the VGL, to repair his reputation

9    after the accidental killing of White, and to further his

10   standing within the set--which is why Farmer took Russell

11   with him as a witness.

12       As Farmer points out, the indictment charged Farmer

13   with attempting to murder Patterson to increase his status

14   in the Bloods: the government did not charge Farmer with

15   acting to enhance his position in the VGL.     Farmer argues

16   that there was no evidence that shooting Patterson could

17   enhance his standing in the Bloods because an intra-gang

18   shooting would not benefit the larger Bloods enterprise.

19   Farmer points to evidence that Bloods subgroups were often

20   closely allied, and that Bloods were expected to defend--not

21   shoot--one another.

22       However, the jury was free to credit testimony that



                                   26
1    members of the Bloods rose in rank within a given set, that

2    actions on behalf of a set could lead to increased status,

3    and that Farmer believed shooting Patterson to defend the

4    VGL could thus enhance his status within the larger Bloods

5    enterprise, the identity of his victim notwithstanding.

6        Second, Farmer argues that the Patterson shooting was a

7    personal matter, the culmination of months of increasing

8    rancor unconnected to Farmer’s standing or membership in the

9    Bloods.   However, the government introduced evidence that

10   Farmer’s disagreement with Patterson concerned (at least in

11   part) the honor of the VGL set, and that Farmer was enraged

12   by Patterson’s contempt for his subgroup.   The government

13   was not required to prove that Farmer’s “sole or principal

14   motive” was “maintaining or increasing his position,”

15   Dhinsa, 243 F.3d at 671 (internal quotation marks omitted),

16   so long as it proved that enhancement of status was among

17   his purposes.   The government met that burden.

18       In sum, we conclude that there was sufficient evidence

19   to sustain the jury’s verdict as to all counts, and Farmer’s

20   sufficiency challenge is denied.

21

22                                 II



                                   27
1        Farmer challenges the repeated use of his nickname

2    “Murder” in the government’s presentation of evidence and

3    argument to the jury.

4        Farmer moved pre-trial to strike his nickname from the

5    indictment.   The district court denied the request,

6    explaining that the government was entitled to include the

7    name if it elicited testimony that witnesses knew Farmer as

8    “Murder.”   Farmer then asked that the government and its

9    witnesses refer to him as “the defendant.”   The government

10   opposed the request , and the district court sided with the

11   government.   It therefore happened that Farmer was called

12   “Murder” throughout the murder trial, with a lot of arch

13   emphasis and many facetious asides.

14       For example, in the fourth sentence of her opening

15   statement, the first prosecutor stated that “Laval Farmer,

16   known to everyone by his gangster name as Murder, murdered

17   ninth grader Jose White in cold blood.”   Moments later,

18   describing the night that White was killed, she explained

19   that “[i]n gang life, if members of another gang mess up

20   members of your gang, the rule is that you retaliate.      So,

21   Murder decided that it was time to take out a Crip . . . .

22   Murder was on the warpath.”   Referring to Farmer’s shooting


                                   28
1    of Patterson, the prosecutor argued that “as you might

2    imagine from what happened eight or nine months before, it

3    wasn’t Murder’s way to let things go.”

4        In her summation, the second prosecutor asked the jury,

5    “Now, when opening statements began in this case three weeks

6    ago, you must have been saying to yourself: who would do

7    such a thing?   Who would execute a 14-year-old boy simply

8    because he was wearing blue?    Well, allow me to reintroduce

9    you to the defendant.   That would be Mr. Murder.   He would

10   do something like this.”   In the climax of the summation,

11   the prosecutor commented that Farmer “really tried to prove

12   himself a real gangster, to come up in the gang.    You know,

13   maybe live up to his name of Murder.”

14       Finally, in her rebuttal to Farmer’s closing argument,

15   the first prosecutor used the nickname “Murder” nearly

16   thirty times.   She referred to “Murder . . . on the warpath”

17   the day he shot Patterson, and argued that “[i]n a word,

18   . . . what happened in Pennsylvania was about revenge and

19   power and being a tough gangster.    It [was] about Murder

20   living up to his name and his reputation as a Blood.”    The

21   prosecutor closed the government’s case by admonishing the

22   jury to “put the responsibility for these crimes where it


                                    29
1    belongs; and that is with defendant Laval Farmer, the Blood

2    known as Murder.”

3        We have ruled on challenges to the use of a defendant’s

4    nickname in three prior cases.        In United States v. Aloi,

5    511 F.2d 585, 602 (2d Cir. 1975), the prosecution introduced

6    nicknames for several defendants and witnesses, including

7    “Charlie Lamb Chops,” “Big Vinny,” “Philly Rags,” and

8    “Checko Brown.”     We explained that “although this

9    prosecution practice is to be condemned,” we would not

10   presume prejudice, because both the prosecution and defense

11   had used the criminal backgrounds of witnesses to their

12   advantage and because the “epithets occasionally

13   interspersed” throughout an eight-week trial were

14   insufficient to “materially divert[] the attention of the

15   jury.”   Id. (emphasis added).

16       In United States v. Burton, 525 F.2d 17, 19 (2d Cir.

17   1975), we considered use of the nickname “Big Time.”       In

18   Burton, the defendant’s nickname was heard on recorded

19   telephone conversations, and the defendant never moved to

20   strike the nickname from the indictment.       Id.   We held that

21   “[i]n view of the fact that testimony as to the defendant’s

22   nickname was relevant to the government’s case and therefore


                                      30
1    properly before the jury, the prosecutor’s occasional

2    reference to the defendant by his nickname during the

3    presentation of the government’s case, while certainly not

4    to be encouraged, was not prejudicial and does not require

5    the grant of a new trial.”   Id. (emphasis added).

6        More recently, in United States v. Mitchell, 328 F.3d

7    77, 83-84 (2d Cir. 2003), we considered the government’s use

8    of the nickname “Phox.”   In Mitchell, the government had

9    noted “in summation that Mitchell had ‘outfoxed’ questions

10   while testifying.”    Id. at 83 (brackets omitted).   We

11   observed that “Mitchell’s identity . . . was not at issue in

12   this case, nor did the admission of the nickname directly

13   relate to the proof of the acts alleged.    Accordingly, the

14   Government’s references were arguably inappropriate.”      Id.

15   at 84.    We held, however, that the “references to Mitchell’s

16   nickname were not prejudicial in view of the fact that they

17   were brief and isolated and in light of the substantial

18   evidence of guilt adduced by the government.”    Id. (emphasis

19   added).

20       Our decisions in Aloi, Burton, and Mitchell are

21   consistent with precedents in other circuit courts, which

22   have looked to the relevance of the defendant’s nickname and


                                    31
1    the frequency of its use by the prosecution in deciding

2    whether a defendant was prejudiced.   See, e.g., United

3    States v. Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999)

4    (finding no error in including in indictment or admitting

5    testimony of nickname “Macho Gatillo” (“Trigger Man”) where

6    nickname was critical to establishing authorship of letter);

7    United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996)

8    (permitting use of nickname “Monster” where it was not used

9    to “suggest [defendant’s] bad character or unsavory

10   proclivities” and where it could not be avoided in

11   wiretaps); United States v. Black, 88 F.3d 678, 681 (8th

12   Cir. 1996) (holding that reference to defendant as “the

13   Jamaican” did not warrant reversal where name was not used

14   in prejudicial manner and confidential informant only knew

15   defendant by that name); United States v. Smith, 918 F.2d

16   1501, 1511, 1513 (11th Cir. 1990) (affirming conviction

17   where nickname “Boss Man” was introduced as evidence

18   defendant held a supervisory or managerial role in the

19   enterprise whose members called him “Boss Man”).

20       In assessing the propriety of using a defendant’s

21   nickname, other courts have also looked to whether the name

22   was “necessarily suggestive of a criminal disposition.”


                                  32
1    United States v. Dean, 59 F.3d 1479, 1492 (5th Cir.

2    1995)(holding that the nickname “Crazy K” was “not

3    necessarily suggestive of a criminal disposition”); see also

4    United States v. Jorge-Salon, 734 F.2d 789, 791-92 (11th

5    Cir. 1984) (noting that “[t]he alias . . . ‘The Egg,’ is

6    similar to the alias ‘Red’ in Taylor which [that] court

7    observed, ‘is no more than a nickname’” (quoting United

8    States v. Taylor, 554 F.2d 200, 203 (5th Cir. 1977)).

9        In United States v. Williams, the Seventh Circuit

10   vacated a mail-fraud conviction because the prosecution

11   elicited testimony from a police detective that he knew the

12   defendant as “Fast Eddie.”   739 F.2d 297, 299-301 (7th Cir.

13   1984).   The court found that “the detective’s testimony

14   about the defendant’s nickname was completely unrelated to

15   any of the other proof against the defendant,” and “[t]he

16   prosecution’s only possible purpose in eliciting the

17   testimony was to create an impression in the minds of the

18   jurors that the defendant was known by the police to be an

19   unsavory character or even a criminal.”    Id. at 300.   The

20   prosecution’s introduction of the nickname was deemed so

21   prejudicial as to warrant a new trial.    Id. at 301; cf.

22   United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976)


                                   33
1    (per curiam) (holding that where an alias, “though proven,

2    holds no relationship to the acts charged, a motion to

3    strike [the alias from the indictment] may be renewed, the

4    alias stricken and an appropriate instruction given the

5    jury”).

6        In these cases, the suggestiveness of the nickname has

7    not required exclusion, especially when it helped to

8    identify the defendant, connect him to the crime, or prove

9    other relevant matter, or when coherent presentation of the

10   evidence entailed passing reference to it.    In determining

11   admissibility, however, the courts also considered whether

12   the nickname’s probative value was substantially outweighed

13   by its capacity for unfair prejudice.   See Fed. R. Evid.

14   403 ; Dean, 59 F.3d at 1491.   And even when admission of the

15   nickname was found proper, the courts went on to consider

16   the frequency, context, and character of the use that the

17   prosecution made of it.   See Mitchell, 328 F.3d at 83-84;

18   Burton, 525 F.2d at 19; Aloi, 511 F.2d at 602.

19       In this case, it was error for the district court to

20   permit the government to elicit testimony of Farmer’s

21   nickname (except for references by witnesses who know him by

22   that name): identity was not an issue at trial, and Farmer’s


                                    34
1    nickname, as a name, had no legitimate relationship to the

2    crimes charged.6   Farmer’s nickname was strongly “suggestive

3    of a criminal disposition,” Dean, 59 F.3d at 1492, and a

4    propensity to commit particularly heinous crimes, including

5    the very offenses charged in the indictment.    Federal Rule

6    of Evidence 404(a) prohibits admission of “[e]vidence of a

7    person’s character or a trait of character . . . for the

8    purpose of proving action in conformity therewith on a

9    particular occasion.”    Moreover, the district court’s pre-

10   trial ruling imposed no restraint or limitation on the

11   government’s use of the nickname.7   And nothing was done to


          6
            Evidence that   Farmer was known as “Murder” might have
     been relevant had he   adopted the nickname after killing Jose
     White to memorialize   the crime. But Farmer was called
     “Murder” long before   the White killing: Russell, for
     example, testified that he knew Farmer as “Murder” in 1998,
     three years before the White killing. Thus, the nickname
     had no connection “to the proof of the acts alleged.”
     Mitchell, 328 F.3d at 84.
          7
            Because several witnesses knew Farmer only as
     “Murder,” it was probable that the name would be used
     occasionally, even if only accidentally. Cf. United States
     v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984) (holding
     that witness’s use of gang nicknames was permissible, where
     gang members used nicknames in witness’s presence and
     “forbidding [the witness] from using the[] names would have
     placed an undue burden on her testimony”). Additionally,
     certain events could only be described with use of the
     nickname: Russell, for example, testified that when he heard
     gunshots coming from Patterson’s bedroom, he “screamed
     ‘Murder, Murder.’” However, the frequency of the nickname’s

                                    35
1    mitigate prejudice, such as giving a curative instruction.

2        But the main problem was not the admission of the

3    nickname into evidence.     Rather, it was the prosecutors’

4    frequently repeated, gratuitous invocation of Farmer’s

5    nickname in their addresses to the jury, uttered in a

6    context that, in effect, invited the jurors to infer that

7    the defendant had earned the nickname among his gang

8    colleagues as a result of his proclivity to commit murder--

9    an inference corroborated by the government’s evidence that

10   he had yielded to that proclivity in the particular

11   instances being tried.     This is precisely what Rule 404(a)

12   was designed to prevent.

13       Even so, the misuse and overuse of Farmer’s nickname

14   would not lead us to vacate a conviction unless the

15   defendant suffered “substantial prejudice, by so infecting

16   the trial with unfairness as to make the resulting

17   conviction a denial of due process.”     United States v.

18   Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (internal quotation

19   marks, citations, and brackets omitted); see also United



     use in evidence, and the resulting prejudice, as well as the
     prosecutors’ deliberate attempt in summation to use the
     nickname to imply a proclivity on the defendant’s part to
     commit murder, could have been abated had the district court
     exercised greater care in its ruling.

                                     36
1    States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009).

2    Moreover, “where, as here, the defendant did not object to

3    the remarks at trial, reversal is warranted only where the

4    remarks amounted to a ‘flagrant abuse.’” 8   United States v.

5    Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (quotation marks

6    and brackets omitted); see also United States v. Rivera, 22

7    F.3d 430, 437 (2d Cir. 1994).

8        In our prior cases, the government’s use of a

9    defendant’s nickname was “occasional,” Burton, 525 F.2d at

10   19; Aloi, 511 F.2d at 602, or “brief and isolated,”

11   Mitchell, 328 F.3d at 84 .   But Farmer’s nickname--permitted

12   in a manner that offended Rule 404--was the main rhetorical

13   trope used by the prosecution in its addresses to the jury.

14   This tactical misuse of the nickname, no fewer than thirty

15   times during the rebuttal summation in a presentation that

16   occupies only sixteen transcript pages, amounted to a

17   flagrant abuse.

18       Did the misuse of the nickname cause Farmer substantial

19   prejudice?   One of the relevant considerations is that the


          8
            Farmer argues that his objection to the admission of
     his nickname sufficed to preserve his present challenge to
     the prosecutors’ comments. We need not resolve that
     question, because the prosecutors’ remarks “amounted to a
     ‘flagrant abuse.’” Coriaty, 300 F.3d at 255.
                                     37
1    district court did nothing to curb the abuse or mitigate the

2    prejudice, despite initially entertaining Farmer’s request

3    that the government avoid use of the nickname in its

4    examination of witnesses.   See United States v. Feliciano,

5    223 F.3d 102, 123-24 (2d Cir. 2000).   However, the

6    determinative factor here is the weight of the evidence.

7    See id. at 123.   Farmer’s guilt respecting the White murder

8    and the conspiracy to assault White was supported by such

9    overwhelming evidence that conviction was a certainty.     It

10   was therefore not affected by the government’s conduct.     On

11   the other hand, the evidence supporting Farmer’s guilt for

12   the attempted murder of Patterson was far less conclusive.

13       Both the murder of White and conspiracy to assault

14   White were shown with clarity by multiple witnesses who

15   described in detail the sequence of events before, during,

16   and after White’s murder.   Key described going with Farmer

17   “to see” the Crips who attacked Roach and Shoke; the murder

18   was obviously a (misguided) act of retaliation.   Testimony

19   of the witnesses was strongly supported by Farmer’s acts and

20   words after the crime, including his move to Wilkes-Barre

21   and his explanation to Russell as to why he was there.

22   Ample evidence also showed the operation of the Bloods and


                                   38
1    the role of violence in increasing members’ status within

2    the enterprise.    Given the strength of the government’s

3    evidence, there can be no doubt that Farmer would have been

4    convicted on Counts One, Two, and Three even if he had no

5    nickname.

6        However, our confidence does not extend to Farmer’s

7    conviction for the attempted murder of Patterson.    Nobody

8    witnessed the shooting or what happened in Patterson’s

9    bedroom.    The evidence showed that the two men had an

10   ongoing feud, with hatred and contempt on both sides.       So it

11   was plausible--as Farmer argued to the jury--that Patterson

12   initiated an attack against Farmer in Patterson’s bedroom,

13   and that Farmer acted in self-defense.    This was supported

14   by Farmer’s account to Russell of Patterson moving toward

15   the bed where the 9 millimeter firearm was located.

16       Additionally, as discussed in Part I, supra, it is not

17   clear whether Farmer shot Patterson to settle a personal

18   score or to elevate his status within the Bloods enterprise.

19   Only the latter finding would support a conviction under the

20   VICAR statute; but the government may have short-circuited

21   the jury’s fact-finding by repeatedly using Farmer’s

22   prejudicial nickname in discussing the Patterson shooting.


                                    39
1    For example, the government argued that “Murder . . . was

2    the one that was on the warpath that day.”   In the

3    government’s narrative of the shooting itself, “[o]ut came

4    Murder’s 380 pistol . . . .   Murder leaves, leaving J-Rock

5    [Patterson for] dead.”   “In a word,” the government

6    suggested, “what happened in Pennsylvania was about revenge

7    and power and being a tough gangster.   It [was] about Murder

8    living up to his name and his reputation as a Blood.”

9        The government argues that Farmer could not have

10   suffered prejudice because the crimes were so highly charged

11   and gruesome that the nickname could not have had

12   incremental effect.   This argument is unsound: that the

13   trial evidence was (unavoidably) inflammatory was no reason

14   for the government to raise the temperature in the courtroom

15   by irrelevant sensation.

16       In sum, Farmer is entitled to a new trial for the

17   Patterson shooting because of the government’s misuse of

18   Farmer’s nickname, the district court’s failure to forestall

19   or mitigate the prejudice, and the arguable strength of

20   Farmer’s defenses to the charged offense.    Farmer is not

21   entitled to a new trial for the White murder or conspiracy

22   to assault because there was no substantial prejudice given


                                   40
1    the certainty of conviction.

2        Because we are vacating Farmer’s attempted-murder

3    conviction, we must also vacate his convictions for the

4    related firearm offenses charged in Counts Five and Six.

5    See United States v. Polanco, 145 F.3d 536, 540 (2d Cir.

6    1998) (reversing derivative § 924(c) convictions where the

7    underlying conviction was reversed).

8

9                                   III

10       Farmer argues that he is entitled to a new trial for

11   the murder of Jose White because White’s family members wore

12   T-shirts featuring White’s photograph during trial.    On the

13   fourth day of trial, defense counsel requested “that nobody

14   be permitted in this courtroom with T-shirts with a picture

15   of Jose White for the jury to see.”    Counsel explained that

16   he had not noticed the shirts during the first three days of

17   trial, but that he found out when his wife read about them

18   in the newspaper.

19       Judge Platt responded that he had seen several

20   spectators “[o]ne of the first days” and that it appeared

21   “there was a picture.”   But he was not sure if jurors had

22   sufficiently good eyesight to see the photographs or if


                                    41
1    “they would be affected by the picture,” because he

2    “couldn’t recognize that they had a picture, even with [his]

3    glasses on.”    As to Farmer’s request, Judge Platt opined

4    that “[p]eople are free to walk into a courtroom with

5    whatever they want on their clothing, and I’m reluctant to

6    adopt a different rule.”    Nonetheless, he “urge[d] the

7    prosecutors to urge them not to come into this courtroom

8    with shirts with pictures.”

9        In Estelle v. Williams, 425 U.S. 501, 505 (1976), the

10   Supreme Court stated that a courtroom practice creating an

11   “unacceptable risk . . . of impermissible factors coming

12   into play” violates due process and the defendant’s right to

13   a fair trial.    Williams ruled that “the State cannot . . .

14   compel an accused to stand trial before a jury while dressed

15   in identifiable prison clothes.”    Id. at 512.

16       In Holbrook v. Flynn, 475 U.S. 560, 562 (1986), the

17   Supreme Court considered whether a defendant’s due process

18   rights were violated “when, at his trial with five

19   codefendants, the customary courtroom security force was

20   supplemented by four uniformed state troopers sitting in the

21   first row of the spectator’s section.”    Under Williams, “the

22   question must be . . . whether ‘an unacceptable risk is



                                    42
1    presented of impermissible factors coming into play.’”           Id.

2    at 570 (quoting Williams, 425 U.S. at 505).        Applying that

3    standard, the augmented presence of police was held not

4    “inherently prejudicial.”   Id. at 570-72.

5        The Ninth Circuit applied Williams and Flynn to grant

6    habeas corpus relief because spectators at a rape trial were

7    permitted to wear buttons displaying the message “Women

8    Against Rape.”   Norris v. Risley, 918 F.2d 828, 831-32 (9th

9    Cir. 1990).   The buttons created “an unacceptable risk . . .

10   of impermissible factors coming into play,” because they

11   conveyed a message that undermined the defendant’s

12   presumption of innocence.   Id.

13       The Ninth Circuit later relied on Norris to hold that a

14   petitioner was “inherently prejudic[ed]” when the victim’s

15   family members sat in the front row at trial wearing buttons

16   with the victim’s photograph.        Musladin v. Lamarque, 427

17   F.3d 653, 657-58, 661 (9th Cir. 2005), rev’d sub. nom.,

18   Carey v. Musladin, 549 U.S. 70 (2006).        The court decided

19   that the “buttons essentially ‘argue[d]’ that [the victim]

20   was the innocent party and that the defendant was

21   necessarily guilty.”   Id. at 660.

22       The Supreme Court overruled the Ninth Circuit’s



                                     43
1    decisions in Norris and Musladin v. Lamarque on the ground

2    that no “clearly established” Supreme Court precedent

3    governed displays by trial spectators.    See Carey v.

4    Musladin, 549 U.S. 70, 72 (2006).    The Court reasoned that

5    Williams and Flynn both involved “state-sponsored courtroom

6    practices,” id. at 76, and that the Antiterrorism and

7    Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

8    110 Stat. 1214 (codified in scattered sections of 18 U.S.C.,

9    21 U.S.C., 28 U.S.C., and 42 U.S.C.), precluded extending

10   those precedents--on habeas review of a state-court

11   judgment--to displays by private actors, Carey v. Musladin,

12   549 U.S. at 77.   Carey v. Musladin stressed that “the effect

13   on a defendant’s fair-trial rights of the spectator conduct

14   to which [defendant] objects is an open question in our

15   jurisprudence.”   Id. at 76.   The Court did not decide that

16   question, but it observed that the Fourth and Ninth Circuits

17   (and state courts) were divided as to whether spectator

18   displays can be “inherently prejudicial.”    Id. at 76-77.

19       In light of the Supreme Court’s decision in Carey v.

20   Musladin, Farmer’s exclusive reliance on Norris is

21   misplaced.   Carey v. Musladin, in effect, wiped the slate

22   clean and left it to lower courts to address claims such as



                                    44
1    Farmer’s in the first instance.    However, the circumstances

2    of this case do not require us to decide whether courtroom

3    displays by private actors can ever be “inherently

4    prejudicial.”   Defense counsel did not observe the

5    relatives’ T-shirts for three days, the trial judge could

6    not make out the picture, and the imagery and its import

7    only became known because a reporter providing daily

8    coverage of the trial interviewed White’s relatives for his

9    story.   See, e.g., John Moreno Gonzales, Witness Claims

10   Victim Was in Gang, Newsday, Feb. 10, 2006, at A47.    On

11   these facts, we cannot conclude that “what [the jurors] saw

12   was so inherently prejudicial as to pose an unacceptable

13   threat to [the] defendant’s right to a fair trial.”    Flynn,

14   475 U.S. at 572.

15       Moreover, once defense counsel called the T-shirts to

16   the district court’s attention, the court instructed the

17   government “to urge [Farmer’s family] not to come into this

18   courtroom with shirts with the picture.”    There was no

19   further objection from defense counsel, and there is no

20   indication in the record that the government or Farmer’s

21   family ignored the court’s request.    This intervention

22   fulfilled the obligation of trial judges to “take careful



                                   45
1    measures to preserve the decorum of courtrooms.”    Carey v.

2    Musladin,549 U.S. at 81 (Kennedy, J., concurring in the

3    judgment).   The ameliorative action also distinguishes this

4    case from Norris, 918 F.2d at 829, and Musladin v. Lamarque,

5    427 F.3d at 655, in which the trial courts did nothing to

6    remove the displays from their courtrooms.

7

8                                   IV

9        Farmer argues that the government introduced expert

10   testimony from Pennsylvania State Trooper Edward Urban

11   without complying with Federal Rule of Criminal Procedure

12   16(a)(1)(G), which requires the government to provide a

13   written summary of expert testimony in advance of trial.       At

14   trial, Urban testified as to bullet trajectories, blood

15   splatter patterns, and shell casings found at the scene of

16   the Patterson shooting.   Urban also testified that the

17   evidence at the crime scene in Wilkes-Barre showed the kind

18   of shootout where “one person was doing the shooting” and

19   “one person was being shot.”    In its summation, the

20   government referred to this statement as Urban’s “expert

21   conclusion,” and argued that it undermined Farmer’s theory

22   of self-defense.



                                    46
1        Because we are vacating Farmer’s conviction for the

2    Patterson shooting, we need not decide whether Urban

3    testified as an expert or whether it was error to admit his

4    testimony without the advanced notice required by Rule

5    16(a)(1)(G).   Farmer is now on notice that if he is retried

6    for attempted murder, the government is likely to elicit

7    testimony from Urban about the crime-scene evidence.

8

9                                  V

10       Farmer argues that his sentence of 25 years’

11   imprisonment for the discharge of a firearm in connection

12   with the White murder exceeds the statutory maximum.     “[A]ny

13   person who, during and in relation to any crime of violence

14   . . . uses or carries a firearm . . . shall, in addition to

15   the punishment provided for such crime of violence, . . .

16   (iii) if the firearm is discharged, be sentenced to a term

17   of imprisonment of not less than 10 years.”    18 U.S.C.

18   § 924(c)(1)(A).   The statute imposes higher mandatory

19   minimum penalties for defendants with prior § 924(c)

20   convictions, see id. § 924(c)(1)(C); but Farmer’s conviction

21   on Count Three was his first under § 924(c).   Therefore, the

22   increased penalties did not apply to Count Three.


                                   47
1         Farmer argues that the ten-year mandatory minimum

2    sentence prescribed by § 924(c)(1)(A)(iii) also constitutes

3    the statutory maximum sentence.    But the statute does not

4    specify a maximum sentence, and in United States v. Johnson,

5    507 F.3d 793, 798 (2d Cir. 2007), we “h[e]ld that the

6    maximum available sentence under § 924(c)(1)(A) is life

7    imprisonment.”   Under Johnson, the district court was

8    permitted to impose a sentence above the ten-year mandatory

9    minimum. 9

10

11                                 VI

12        Farmer, with leave of the Court, submitted a pro se

13   supplemental brief in which he argues that his convictions

14   must be vacated because the Act of June 25, 1948, Pub. L.


          9
            It appears that Farmer is entitled to resentencing on
     Count Three in light of United States v. Williams, 558 F.3d
     166, 168 (2d Cir. 2009), which held that “the mandatory
     minimum sentence under Section 924(c)(1)(A) is . . .
     inapplicable where the defendant is subject to a longer
     mandatory minimum sentence for a[n] . . . offense that is
     part of the same criminal transaction or set of operative
     facts as the firearm offense.” Farmer faced a mandatory
     life sentence for the White murder, the offense underlying
     the § 924(c) conviction. However, Farmer did not raise this
     issue in his brief or at oral argument, perhaps because the
     district court’s imposition of a 25-year sentence suggests
     that a remand under Williams would be futile (or because
     Farmer faces a life sentence in any event). Accordingly, we
     decline to reach the issue.

                                   48
1    No. 80-772, 62 Stat. 683 (codified as amended in scattered

2    sections of 18 U.S.C.), which, inter alia, grants district

3    courts criminal jurisdiction, see 18 U.S.C. § 3231, 10 was

4    not validly enacted by Congress.    Farmer contends that the

5    Congressional Record from the date that the Act was passed

6    shows that a quorum was not present, and that the signature

7    of the Speaker of the House of Representatives on the

8    enrolled bill did not cure this deficiency.    Farmer also

9    asserts that the legislation is void because the

10   Congressional Record does not describe how members voted on

11   the bill, as required by Article I, Section 7, Clause 2 of

12   the Constitution. 11   This notion has evidently been

13   circulating among inmates in federal correctional

14   institutions, and has been presented in other pro se briefs.

15        The government argues that even if procedural


          10
            18 U.S.C. § 3231 provides, in relevant part, that
     “[t]he district courts of the United States shall have
     original jurisdiction, exclusive of the courts of the
     States, of all offenses against the laws of the United
     States.”
          11
            Article I, Section 7, Clause 2 provides that after a
     bill is returned to Congress as a result of a presidential
     veto, Congress shall reconsider the statute, and “Votes of
     both Houses shall be determined by Yeas and Nays, and the
     Names of the Persons voting for and against the Bill shall
     be entered on the Journal of each House respectively.”



                                    49
1    irregularities tainted the passage of the Act of June 25,

2    1948 (a point the government vigorously contests), the bill

3    was properly enrolled (signed by the Speaker of the House

4    and President Pro Tempore of the Senate), immunizing it from

5    judicial inquiry into procedural irregularities.

6        The “enrolled-bill rule” precludes a court from looking

7    beyond the signatures of House and Senate leaders in

8    determining the validity of a statute.   The District of

9    Columbia Circuit recently explained the rule thus:

10            It   is   not   competent   for   a   party
11            [challenging the validity of a statute] to
12            show, from the journals of either house,
13            from the reports of committees or from
14            other documents printed by authority of
15            Congress, that an enrolled bill differs
16            from that actually passed by Congress. The
17            only evidence upon which a court may act
18            when the issue is made as to whether a bill
19            asserted to have become a law, was or was
20            not passed by Congress is an enrolled act
21            attested to by declaration of the two
22            houses, through their presiding officers.
23            An  enrolled   bill,   thus  attested,   is
24            conclusive evidence that it was passed by
25            Congress.   The enrollment itself is the
26            record, which is conclusive as to what the
27            statute is.
28
29   Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342,

30   1349-50 (D.C. Cir. 2007) (internal quotation marks,

31   brackets, and ellipses omitted) (quoting Marshall Field &

32   Co. v. Clark, 143 U.S. 649, 670, 672-73, 675, 680 (1892));


                                  50
1    see also OneSimpleLoan v. U.S. Sec’y of Educ., 496 F.3d 197,

2    203 (2d Cir. 2007) (“[T]he enrolled bill rule ‘provides that

3    if a legislative document is authenticated in regular form

4    by the appropriate officials, the courts treat that document

5    as properly adopted.’” (brackets omitted) (quoting United

6    States v. Pabon-Cruz, 391 F.3d 86, 99 (2d Cir. 2004));

7    United States v. Miles, 244 Fed. App’x 31, 33 (7th Cir.

8    2007) (order) (relying on enrolled-bill rule to deny

9    challenge to the validity of 18 U.S.C. § 3231); United

10   States v. Chillemi, No. 03-cr-917(PGR)(JRI), No. 07-cv-

11   430(PGR), 2007 WL 2995726, at *6-7 (D. Ariz. Oct. 12, 2007)

12   (same); United States v. Harbin, No. C-01-cr-221(3), No. C-

13   07-cv-260, 2007 WL 2777777, at *5-6 (S.D. Tex. Sept. 21,

14   2007) (same).

15       We agree with the government that the enrolled-bill

16   rule precludes Farmer’s challenge to the validity of the Act

17   of June 25, 1948, and we hold that the district court

18   properly exercised jurisdiction pursuant to 18 U.S.C.

19   § 3231.

20

21                            CONCLUSION

22       For the foregoing reasons, the judgment of the district



                                  51
1   court is affirmed in part, vacated in part, and remanded for

2   a retrial of the attempted murder of Patterson and related

3   firearms offenses.




                                 52
