   08-3141-cr, 08-3813-cr (con), 08-5636-cr(con)
   United States v. Abdur-Razzaaq (Shepherd)



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
   on the 21 st day of April, two thousand and ten.

   PRESENT:          PETER W. HALL,
                     DEBRA ANN LIVINGSTON,
                                         Circuit Judges,
                     DENNY CHIN,*
                                         District Judge.

   --------------------------------------------------------------------x
   UNITED STATES OF AMERICA,

                                                         Appellee,
            -v.-                                                                   Nos. 08-3141-cr(L),
                                                                                   08-3813-cr(con), 08-
                                                                                   5636-cr(con)
   UMAR ABDUR-RAZZAAQ, a.k.a OOH, ISMAIL
   ABDUR-RAZZAAQ, a.k.a. ISH, and BENONI BRYANT, a.k.a
   FACE,

                                                         Defendants,

   PABLO LOPEZ, a.k.a. POP, GUILLERMO PAYANO,
   a.k.a. WILL CRUZ, a.k.a WILFREDO SANCHEZ, a.k.a P., and
   DARNELL SHEPHERD, a.k.a Cuz,

                                                          Defendants-Appellants.
   -------------------------------------------------------------------x


            *
            Judge Denny Chin of the United States District Court for the Southern District of New
   York, sitting by designation.
COUNSEL FOR APPELLANT:                       JOHN L. PERTICONE, Levene Gouldin & Thompson,
                                             LLP, Vestal, NY
                                                   for Darnell Shepherd.

COUNSEL FOR APPELLEE:                        BRENDA K. SANNES, Assistant United States
                                             Attorney (Miroslav Lovric, Assistant United States
                                             Attorney, on the brief), Syracuse, NY
                                                    for Andrew T. Baxter, United States
                                                    Attorney, Northern District of New York.

Appeal from a judgment of the United States District Court for the Northern District of New

York (McAvoy, J.). UPON DUE CONSIDERATION, it is hereby ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Appellant Darnell Shepherd (“Shepherd”) appeals from a judgment of conviction entered

in the United States District Court for the Northern District of New York on November 14, 2008.

We assume the parties’ familiarity with the underlying facts, procedural history of the case, and

the issues on appeal.

I.     Sufficiency of the Evidence – Whether the Conviction Was Time Barred

       Shepherd argues that his motion for a judgment of acquittal should have been granted.

He contends that there was insufficient evidence to convict him because he withdrew from the

conspiracies by September 13, 2001, more than five years before he was indicted. This Court:

       review[s] the grant or denial of a judgment of acquittal under Rule 29 de novo.
       We may properly affirm a judgment of acquittal under Rule 29 only if we
       conclude, considering all of the evidence, direct and circumstantial, that no
       rational trier of fact could have found the defendant guilty beyond a reasonable
       doubt. We must reverse a district court's postconviction Rule 29 judgment of
       acquittal if, after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of
       the crime beyond a reasonable doubt.

United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) (internal quotation marks and citations

omitted). Thus, “[a] defendant who challenges the sufficiency of the evidence to support his


                                                2
conviction ‘bears a heavy burden.’” United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)

(quoting United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001)).

       We have explained that “where the government has shown that a conspiracy existed and

that a given defendant was a member of it, his membership is presumed to continue until the last

overt act by any of the coconspirators, unless the defendant proves that the conspiracy was

terminated or that he took affirmative steps to withdraw.” United States v. Flaharty, 295 F.3d

182, 192 (2d Cir. 2002).   Shepherd does not deny the existence of a conspiracy but instead

admits “that he was a member of the narcotics and RICO conspiracy from the time of his arrival

in Ithaca, New York during the summer of 1998.” Shepherd contends that he “communicated his

unequivocal withdrawal from the conspiracies to [their] leader, Guillermo Payano and others

including at least Ismail Razzaaq” around May 25, 2000, one day after Payano murdered

Shepherd’s friend Alexander Miller.

       In United States v. Berger, this Court agreed with the Third Circuit that:

       (1) resignation from the enterprise does not, in and of itself, constitute withdrawal
       from a conspiracy as a matter of law; (2) total severing of ties with the enterprise may
       constitute withdrawal from the conspiracy; however (3) even if the defendant
       completely severs his or her ties with the enterprise, the defendant still may remain
       a part of the conspiracy if he or she continues to do acts in furtherance of the
       conspiracy and continues to receive benefits from the conspiracy’s operations.

224 F.3d 107, 119 (2d Cir. 2000) (quoting United States v. Antar, 53 F.3d 568, 583 (3d Cir.

1995)). The evidence here was sufficient to allow a reasonable jury to find that Shepherd

continued to participate in the conspiracy after his claimed withdrawal from it in May 2000. For

example, there was testimony that Shepherd supplied the Razzaaqs with heroin and marijuana

after that date. When Shepherd was arrested on a drug charge in May 2001, Shepherd expressed

to both Umar Razzaaq and Benoni Bryant that he wanted to be released before the police tried to


                                                  3
bring him to Ithaca to be charged with the March 2001 shooting, and Umar Razzaaq provided

Shepherd with bail money. Further, Shepherd accepted drug proceeds from Ismail Razzaaq in

2001.

        Shepherd also contends that the evidence was “plentiful” that the conspiracy terminated

more than five years before he was indicted. Even if this were true, a reasonable jury could have

found based on other evidence that the conspiracy continued past September 2001. For example,

subsequent to that time, the Razzaaqs, via the Lopez brothers, continued to obtain cocaine from

Payano and his “uncles” in New York City. Further, after a drug seizure, Payano asked Ismail

Razzaaq to pick up a Mercedes Benz in which there were drugs that had not yet been seized.

Shepherd’s challenges to the sufficiency of the evidence fail based upon the evidence before the

jury.

II.     The Instruction Regarding the Conspiracy Time Bar Jury Charge

        Shepherd challenges the instruction regarding the time bar applicable to the conspiracy

charge. He argues that, under current case law, the government had to “prove beyond a

reasonable doubt that the conspiracy extended into the period not barred by the statute” and that

“[t]he lower [c]ourt’s erroneous charge shifting the burden of proof to the defense violated the

Due Process Clause of the United States Constitution and mandates a new trial.”

        We review de novo a claim of error in jury instructions to which an objection was

entered. See United States v. White, 552 F.3d 240, 246 (2d Cir. 2009). “To secure reversal based

on a flawed jury instruction, a defendant must demonstrate both error and ensuing prejudice.

Although we review de novo a claim of error in jury instructions, including a claim that the

district court improperly declined to instruct the jury regarding an affirmative defense, we will



                                                 4
reverse only where the charge, viewed as a whole, either failed to inform the jury adequately of

the law or misled the jury about the correct legal rule.” Id. (internal quotation marks and

citations omitted).

       Shepherd states that he is not “claiming that the ‘presumption of continuity’ is

unconstitutional. The claim is that the presumption cannot remove the government’s ultimate

burden to prove beyond a reasonable doubt that the conspiracy extended into a period not barred

by the statute of limitations.” The district court’s charge, however, properly instructed the jury

that “[t]he government satisfies the requirements of the statute of limitations for the charged

conspiracies if it alleges and proves beyond a reasonable doubt that the conspiracy continued into

the limitations period.” Having thus instructed the jury, the district court went on to state:

       A conspiracy is deemed to have continued as long as the purposes of the conspiracy
       have neither been abandoned nor accomplished and the defendant has not made an
       affirmative showing that the conspiracy has terminated. A defendant can overcome
       this presumption of continued participation only by showing that he affirmatively
       withdrew from the conspiracy or that the final act in furtherance of the conspiracy has
       occurred. Stated otherwise, once the government has satisfied its burden regarding
       the existence of the conspiracy, the defendant must prove either, one, that the
       objectives of the conspiracy were accomplished or abandoned prior to September 13,
       2001; or two, that he abandoned the conspiracy prior to that date.

It is this latter instruction which Shepherd claims improperly shifted the burden of proof, as he

contends that the presumption of continuance “imposes on the defense a burden of production,

not a burden of proof.” Our case law is to the contrary. We have made clear that once the

government has introduced evidence that would meet this requirement the burden is on the

defendant to show that the conspiracy had terminated earlier in time. See Flaharty, 295 F.3d at

192; Eppolito, 543 F.3d at 49 (“Where the government has presented sufficient evidence to show

a conspiracy that has continuing purposes or goals, the burden is on the defendant to prove that



                                                  5
the conspiracy was terminated or that he took affirmative steps to withdraw.”); United States v.

Spero, 331 F.3d 57, 60-61 (2d Cir. 2003) (once the government has shown that a conspiracy

existed and that defendant was a member of it, the burden falls upon the defendant to prove that

the conspiracy was terminated). The district court’s instruction was not in error.

        Shepherd attempts to distinguish Spero on the grounds that the defendant there did not

assert termination at trial and introduced no evidence of termination, and he argues that Spero did

not address the placement of the burden of proof. See Spero, 331 F.3d at 60-61. But Shepherd

reads Spero backwards, confusing the issue passed upon with the issue decided. The issue not

reached in Spero was waiver; this Court expressly found it unnecessary to consider whether

Spero had properly raised his statute of limitations argument in the district court because it found

that he had “failed to rebut the presumption that the . . . conspiracy . . . continued past [the start

of the limitations period].” Id. at 60 & n.2. The Court stated: “Spero . . . had to prove either (1)

that the objectives of the conspiracy were accomplished prior to [the start of the limitations

period] or (2) that he abandoned the conspiracy prior to that date.” Id. at 61 (first emphasis

added, second emphasis in original). Although the Court then stated that “Spero needed to

present evidence from which the jury could have found that the goals of the conspiracy were

accomplished in some final manner,” it then proceeded to weigh the evidence in the record

before concluding that termination was not proven. Id. (emphasis added). The Court’s decision

to ignore possible waiver and decide the case based on Spero’s failure to rebut the presumption

means that the Court necessarily reached a holding with respect to burden of proof, and its

weighing of the evidence means that it necessarily imposed a burden of persuasion, not merely a

burden of production.



                                                   6
III.   Evidence of Post-Conspiracy Actions

       Shepherd also argues that the court erroneously admitted evidence of Shepherd’s acts that

occurred three to five years after the conspiracy had ended. Evidentiary rulings are reviewed for

abuse of discretion. See United States v. Brady, 26 F.3d 282, 286 (2d Cir. 1994). The evidence

of Shepherd’s interactions with co-conspirators and his request for a weapon to use on a former

drug rival after his release from prison was relevant to counter Shepherd’s claim that he had

withdrawn from the conspiracies. Cf. Lutwak v. United States, 344 U.S. 604, 617 (1953) (noting

post-conspiracy acts may be admissible). Further, Shepherd’s later activities did not involve

conduct any more sensational or disturbing than the crimes with which Shepherd was charged.

See United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992). The district court did not abuse

its discretion in admitting the evidence in question.

       For the foregoing reasons, the judgment of conviction is hereby AFFIRMED.

                                                        FOR THE COURT:

                                                        Catherine O’Hagan Wolfe, Clerk




                                                 7
