14-851-cr; 14-1033-cr
United States v. Boykin


                          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 Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 30th day of August, two thousand and sixteen.

Present:
          JOHN M. WALKER, JR.,
          GUIDO CALABRESI,
          PETER W. HALL,
                     Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                             Appellee,

                v.                                            Nos. 14-851-cr
                                                                   14-1033-cr

PAUL ARLINE, AKA FACE, ET AL.,

                             Defendants,

ANTHONY BOYKIN, AKA DOUBLE O,
JUSTIN SIMMONS, AKA JUSTO,


                     Defendants-Appellants.*1
____________________________________________________

For Anthony Boykin:                 JAMES M. BRANDEN; Lisa Scolari, Law Office of
                              James M. Branden, New York, New York

For Justin Simmons:                BENJAMIN GREENWALD, The Law Office of
                              Benjamin Greenwald, New Windsor, New York

For Appellee:                       MICHAEL D. MAIMAN, Assistant United States
                              Attorney (Emil J. Bove, III, Michael A. Levy, Assistant
                              United States Attorneys, on the brief), for Preet Bharara,
                              United States Attorney for the Southern District of New
                              York

       Appeal from final judgments of the United States District Court for the

Southern District of New York (McMahon, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments are AFFIRMED for the

reasons that follow and those stated in a separate opinion filed concurrently with

this summary order.

        Anthony Boykin and Justin Simmons stand convicted of numerous offenses

stemming from their participation in a racketeering enterprise and conspiracy, and

a narcotics conspiracy. Boykin challenges the sufficiency of the evidence with

respect to one of his counts of conviction, the admission of certain statements at

* The Clerk of Court is requested to amend the official caption in this case to conform to the
listing of the parties above.
                                               2
trial, the dismissal of a juror, and the denial of his request to compel the

Government to immunize a defense witness. Simmons challenges the sufficiency

of the evidence with respect to his participation in the racketeering conspiracy and

his sentence based on multiple convictions for firearms offenses, an issue we

address in a separate opinion. With respect to the matters addressed here, we

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

issues on appeal.

        A. Sufficiency of the Evidence

    “A defendant challenging the sufficiency of trial evidence bears a heavy

burden, and the reviewing court must view the evidence presented in the light most

favorable to the government and draw all reasonable inferences in the

government’s favor.” United States v. Gagliardi, 506 F.3d 140, 149 (2d Cir. 2007)

(internal quotation marks omitted). “We will affirm if any rational finder of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010). We review de novo

challenges to the sufficiency of the evidence supporting a conviction. United

States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012).




                                         3
   i.      Boykin’s Conviction for Conspiracy to Murder and for the Murder

           of Lamont Young

        Boykin argues that the evidence was insufficient to prove that he conspired

to murder, and did murder, Young. The Government, however, presented ample

evidence of Boykin’s guilt.    In particular the Government offered testimony and

other evidence that established, among other facts, the following. Boykin knew

that Young was a “snitch”—an offense the Newburgh Bloods consider punishable

by death—and offered “status” in the Newburgh Bloods to any member who killed

Young. A man identified as Boykin walked into the bar where Young was killed

carrying a gun seconds before Young was murdered. Security camera footage

showed a similarly dressed individual emerge from the bar seconds after the

murder. On the night of Young’s murder, Boykin got into the car of a fellow

Bloods member (wearing a ski mask and a backpack, as shown in the surveillance

video), and told that member that he had just “shot [Young] in the head” “with a

.38 Special.” Tr. 1048-49. As Boykin stepped out of the vehicle, he stated “this is

what happens when you snitch on one of us.” Trial Tr. 1150. Antwan Robinson, a

fellow member of the Newburgh Bloods, admitted that he set up Young on

Boykin’s order. Based on this and other evidence, a “rational finder of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Burden, 600 F.3d at 214.

                                         4
      While Boykin points to other individuals who may have had a motive to kill

Young, the evidence described above was sufficient to convict Boykin of the

murder. Boykin faults the Government’s case for being circumstantial, but “the

prosecution may prove its case entirely by circumstantial evidence so long as guilt

is established beyond a reasonable doubt.” United States v. Glenn, 312 F.3d 58, 64

(2d Cir. 2002); see also United States v. Kwong, 14 F.3d 189, 193 (2d Cir. 1994)

(holding that, in an attempted murder prosecution, “[i]dentity can be inferred

through circumstantial evidence”). Boykin also attacks the credibility of certain

Government witnesses. It is well established, however, that “[w]here there are

conflicts in the testimony, we must defer to the jury’s resolution of the weight of

the evidence and the credibility of the witnesses.” United States v. Persico, 645

F.3d 85, 104 (2d Cir. 2011). As we have previously stated, “the proper place for a

challenge to a witness’s credibility is in cross-examination and in subsequent

argument to the jury.” United States v. Truman, 688 F.3d 129, 139 (2d Cir. 2012)

(internal quotation marks and alteration omitted).

      Boykin argues further that “the whole of the evidence showed that Mr.

Boykin was not the murderous kind” because, “other than with regard to Young,

there was no other testimony that Mr. Boykin ordered a shooting or shot at

anyone.”   Boykin Br. 50-51.      Boykin’s tendency, or lack thereof, to commit

murder is not an essential element of the crime and does not fall within the purview

                                         5
of sufficiency review. See Burden, 600 F.3d at 214 (“We will affirm if any

rational finder of fact could have found the essential elements of the crime beyond

a reasonable doubt” (emphasis added)).2 Although Boykin argues that the jury’s

mixed verdict “constitute[d] a clear sign that the government’s evidence was, in

many important regards, weak and equivocal,” Boykin Br. 52, “it has long been

established that inconsistency in jury verdicts of guilty on some counts and not

guilty on others is not a ground for reversal of the verdicts of guilty,” United States

v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994); see also United States v. Powell, 469

U.S. 57, 66 (1984) (rejecting as “imprudent and unworkable[ ] a rule that would

allow criminal defendants to challenge inconsistent verdicts on the ground that in

their case the verdict was not the product of lenity, but of some error that worked

against them”).

    ii.   Simmons’s        Conviction      for    Participation      in   a   Racketeering

          Conspiracy

      A conviction for participation in a racketeering conspiracy “requires proof,

inter alia, that a defendant agreed with others (a) to conduct the affairs of an

enterprise (b) through a pattern of racketeering.” United States v. Basciano, 599

F.3d 184, 199 (2d Cir. 2010). “[T]he conduct prong requires only that conspirators


2
  Even assuming that Boykin had never been involved in a prior shooting, the evidence was
sufficient for the jury to find that he had murdered Young, and any argument regarding his
pacific nature was one for the jury to consider.
                                                  6
reached a meeting of the minds as to the operation of the affairs of the enterprise

through a pattern of racketeering conduct.” Id. The pattern element, meanwhile,

“demands proof of an agreement to commit at least two crimes.” Id.

      Contrary to Simmons’s argument, the Government was not required to prove

that he personally committed or agreed to commit at least two predicate acts. See

United States v. Cain, 671 F.3d 271, 291 (2d Cir. 2012) (“[A] conspirator charged

with racketeering conspiracy need not commit or even agree to commit the

predicate acts . . . .”); see also United States v. Yannotti, 541 F.3d 112, 129 n.11

(2d Cir. 2008) (explaining that “to prove a defendant’s membership in the

agreement, the government need not prove that the defendant committed or agreed

to commit any of the charged predicate acts as long as the government proves that

he participated in some manner in the overall objective of the conspiracy”). Even

if we were to consider the argument, it fails. Simmons asserts that the jury could

have relied on only two predicate acts to convict him of a racketeering conspiracy:

narcotics distribution and witness intimidation. He does not challenge the proof of

the predicate act of narcotics distribution. He challenges only the proof of the

predicate act of witness intimidation. The evidence supporting the latter, however,

was sufficient for the jury to find that Simmons attempted to persuade Henry Rich




                                         7
not to testify.3 See 18 U.S.C. § 1512(b)(3) (a person may be convicted of witness

intimidation by, among other things, “corruptly persuad[ing] another person, or

attempt[ing] to do so, . . . with intent to . . . prevent communication . . . of

information relating to . . . a Federal offense”); cf. United States v. Veliz, 800 F.3d

63, 70 (2d Cir. 2015) (holding that defendant violated 18 U.S.C. § 1512(b)(3)

when he “attempted to persuade [others] to act in such a way as to prevent [a

potential witness] from communicating to the authorities information about”

certain offenses). Proof of the predicate acts of narcotics distribution and witness

intimidation was sufficient to satisfy the pattern element and thus to prove a

racketeering conspiracy. See Basciano, 599 F.3d at 199.4

    B. Juror Dismissal (Boykin)

      District courts have “broad discretion . . . to replace a juror at any time before

the jury retires if there is reasonable cause to do so, and a reviewing court will only

find abuse of that discretion where there is bias or prejudice to the defendant.”

United States v. Thompson, 528 F.3d 110, 121 (2d Cir. 2008). “Prejudice in this

context exists where the discharge is without factual support, or for a legally



3
 We need not address witness intimidation in connection with Simmons’s statements to Seth
Hinson.
4
   Simmons does argue that his acquittal of other substantive racketeering offenses precluded
those acts from being considered as predicate acts by the jury. We need not address this
argument because, in any event, the jury could properly consider narcotics distribution and
witness intimidation as predicate acts.
                                             8
irrelevant reason.” United States v. Purdy, 144 F.3d 241, 247 (2d Cir. 1998)

(internal quotation marks omitted).

       The district court dismissed a juror after that juror was observed listening

and watching a proceeding not meant for the jury. When questioned about the

incident, the juror gave inconsistent answers about what had happened. Based on

this conduct, the district court had “reasonable cause” to dismiss the juror.5 See

United States v. Fazio, 770 F.3d 160, 170 (2d Cir. 2014) (finding no abuse of

discretion when district court “determined that the juror continued to violate the

instructions of the court such that the district court had reasonable cause to believe

that the juror could no longer serve according to her oath”).

    C. Admission of Statements Regarding Boykin’s Murder of Lamont Young

       “We review evidentiary rulings for abuse of discretion.” United States v.

Mercado, 573 F.3d 138, 141 (2d Cir. 2009). This Court reviews an erroneous

admission of evidence for harmless error. United States v. McCallum, 584 F.3d

471, 477 (2d Cir. 2009). “A district court’s erroneous admission of evidence is

harmless if the appellate court can conclude with fair assurance that the evidence

did not substantially influence the jury.” United States v. Al-Moayad, 545 F.3d

139, 164 (2d Cir. 2008) (internal quotation marks omitted).

5
   Contrary to Boykin’s argument, the district court properly investigated the alleged juror
misconduct by holding a brief hearing, which was not required in these circumstances in any
event. See Fazio, 770 F.3d at 170 (if reasonable cause exists to dismiss a juror “[n]o further
inquiries or hearings [are] required”).
                                             9
      i.     Robinson’s Statement to David Evans

      Initially, we note that Boykin fails to challenge the district court’s alternative

finding that Robinson’s statement to Evans was admissible as a statement against

penal interest. We may therefore deem waived any challenge to this alternative

finding and affirm on that basis. See State Street Bank & Trust Co. v. Inversiones

Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir. 2004) (declining to address the

merits of appellants’ challenge because appellants failed to address the district

court’s alternative basis for its ruling). Regardless, the district court did not err in

admitting Robinson’s statement under Federal Rule of Evidence 801(d)(2)(E).

      A statement is not hearsay if it “was made by the party’s coconspirator

during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). To

admit a statement under this rule, the district court must find by a preponderance of

the evidence “(a) that there was a conspiracy, (b) that its members included the

declarant and the party against whom the statement is offered, and (c) that the

statement was made during the course of and in furtherance of the conspiracy.”

United States v. James, 712 F.3d 79, 105 (2d Cir. 2013). “We review a district

court’s admission of evidence under Rule 801(d)(2)(E) only for clear error . . . .”

United States v. Coppola, 671 F.3d 220, 246 (2d Cir. 2012).

      It was not clear error for the district court to find that Robinson’s statement

to Evans was made in furtherance of the racketeering and narcotics conspiracies.

                                          10
Robinson’s statement furthered those conspiracies because the evidence suggested

that Young was murdered for providing information to law enforcement, which, of

course, could jeopardize the continuing viability of the conspiracies. See United

States v. Arrington, 867 F.2d 122, 130 (2d Cir. 1989) (holding that a “plot to

silence witnesses further[ed] the goals” of a narcotics conspiracy); see also United

States v. Young, 561 F. App’x 85, 88 (2d Cir. 2014) (unpublished) (holding that

statements “furthered the charged narcotics conspiracy insofar as they referenced a

plot to retaliate against [a co-defendant] for providing a statement to law

enforcement”).    Accordingly, because Young, as an informant, clearly had the

potential to interrupt the Newburgh Bloods’ operation, Robinson was updating

Evans on “the progress or status of the conspiracy” when he

informed Evans of Young’s death. United States v. Mandell, 752 F.3d 544, 552

(2d Cir. 2014).    In addition, by describing what had happened to Young,

Robinson’s statement to Evans served to remind Evans of what happened to

“snitches”—both encouraging Evans to come forward with information of any

other informants and discouraging Evans from becoming an informant himself.

See United States v. Carson, 455 F.3d 336, 367 (D.C. Cir. 2006) (statements

admissible under Rule 801(d)(2)(e) when the “information could have served

several functions: to update [a co-conspirator] on eliminated threats—that is, to

give the ‘all clear’; to remind [him] to keep an ear open for more threats; to

                                        11
encourage him to weed out other witnesses against them; and to make sure [he] did

not consider turning against the conspiracy (that is, to motivate his continued

participation)”). Robinson also told Evans that he assisted Boykin with Young’s

murder to demonstrate that if he (Robinson) did not follow Boykin’s order, he

would have suffered violent consequences. This statement served to further the

conspiracies because it reinforced the Newburgh Bloods hierarchy and was a

reminder to Evans to obey orders from Boykin.

      ii.   Wayne’s Statement

      “For out-of-court statements to be received in evidence for a purpose other

than their truth, the proponent must satisfy Federal Rules of Evidence 401 and 403,

that is, (1) the non-hearsay purpose for which the evidence is offered must be

relevant and (2) the probative value of the evidence for this non-hearsay purpose

must not be outweighed by the danger of unfair prejudice.” United States v.

Paulino, 445 F.3d 211, 217 (2d Cir. 2006).

      As the district court made abundantly clear in its limiting instruction to the

jury, it did not admit Wayne’s statement “I heard you killed my brother” as proof

that Boykin did, in fact, kill Wayne’s brother. The evidence was not offered for

the truth of the matter asserted but to prove that the prior statement was made and

to provide context for Boykin’s response. See United States v. Barone, 913 F.2d

46, 49 (2d Cir. 1990) (“So long as the informant’s recorded statements are not

                                        12
presented for the truth of the matter asserted, but only to establish a context for the

recorded statements of the accused, the defendant's Sixth Amendment rights are

not transgressed.”); see also Anderson v. United States, 417 U.S. 211, 220 n.8

(1974) (“Of course, evidence is not hearsay when it is used only to prove that a

prior statement was made and not to prove the truth of the statement.”). Wayne’s

statement and Boykin’s response were probative of Boykin’s guilt in that Boykin

had the opportunity to deny his involvement in Young’s murder but did not do so.

      Boykin argues that the statement was unfairly prejudicial because “the jury

was certain to disregard the limiting instruction” and draw a string of inferences.

Boykin Br. 64. The court’s careful limiting instruction, however, reduced the risk

of unfair prejudice. See United States v. Mercado, 573 F.3d 138, 142 (2d Cir.

2009) (potential unfair prejudice offset when district court “gave several careful

instructions to the jury regarding what inferences it could draw from the admitted

evidence”); see also United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006)

(noting that “the law recognizes a strong presumption that juries follow limiting

instructions”).   Moreover, because the abundant evidence outlined above,

including testimony from Evans about Boykin’s involvement in Young’s murder,

was independently far more than sufficient to sustain Boykin’s conviction for

Young’s murder, the admission of Wayne’s statement was at most harmless error.

See Al-Moayad, 545 F.3d at 164.

                                          13
   D. Boykin’s Request to Compel the Government to Immunize a Potential

      Defense Witness

    This Court reviews for abuse of discretion a district court’s decision not to

compel the government to immunize a witness. United States v. Ebbers, 458 F.3d

110, 118 (2d Cir. 2006).     “The government is under no general obligation to grant

use immunity to witnesses the defense designates as potentially helpful to its cause

but who will invoke the Fifth Amendment if not immunized.” Ebbers, 458 F.3d at

118; see United States v. Diaz, 176 F.3d 52, 115 (2d Cir. 1999) (“Absent

extraordinary circumstances, the Due Process Clause imposes no requirement that

defense witness immunity be ordered whenever it seems fair to grant it.” (internal

quotation marks omitted)).

    The district court did not abuse its discretion in denying Boykin’s request to

compel the Government to grant immunity to Sukeem Bryant. Compelling the

government to grant immunity is appropriate “[o]nly when a prosecutor has abused

the government’s ability to grant immunity by using it in a discriminatory fashion

for the purpose of gaining a tactical advantage.” Diaz, 176 F.3d at 115 (quoting

Blissett v. Lefevre, 924 F.2d 434, 442 (2d Cir. 1991)). As Boykin concedes, the

Government did not offer statutory immunity to any witnesses. It follows that the

Government could not grant immunity in a discriminatory fashion if it did not

grant immunity at all. And Boykin does not cite any authority for the proposition

                                          14
that the benefits derived from the negotiation of a plea agreement are akin to the

grant of statutory immunity.6

       We have considered all of Boykin’s remaining arguments, and all of

Simmons’s remaining arguments that are not addressed in the accompanying

opinion, and find them to be without merit. For the reasons stated above and in the

accompanying opinion, the judgments of the district court are AFFIRMED.



                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, CLERK




6
  Even if we considered the plea agreement process in making such a comparison, Boykin does
not assert that, during plea negotiations, Bryant asked for and was denied benefits similar to
those offered to the Government’s witnesses. There are myriad reasons, moreover, why the
Government may decide to engage in the plea bargaining process other than to secure favorable
testimony. And it is common for the Government to dismiss charges or decline to prosecute
other conduct when entering into a plea agreement. See, e.g., United States v. Morgan, 91 F.3d
1193, 1196 (8th Cir. 1996) (describing the “offer to drop specific charges” as a “normal plea
discussion event[]”); Fed. R. Crim. P. 11(c)(1)(A) (explaining that “the plea agreement may
specify that an attorney for the government will . . . not bring, or will move to dismiss, other
charges”).
                                               15
