13-3979-cr(L)
United States v. Sanchez & Pagan
 
                                   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 2nd day of September, two thousand fifteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,
                 v.                                                      Nos. 13-3979-cr(L)
                                                                              13-4859-cr(con)
CHRISTIAN SANCHEZ, AKA King Chi Chi, WILSON
PAGAN, AKA King Gunz,
                      Defendants-Appellants,

PEDRO HERRERA, AKA King Aventura, ROGELIO
RAMOS, AKA King Bogelio, FERNANDO MERLO,
AKA King Dinero, ARMANDO SANCHEZ, AKA King
Malo, AKA King Mondo, JASON CARABALLO, AKA
King Loco, OSMAN NUNEZ, AKA King Ozzy,
HUMBERTO MORALES, AKA King Papo, STEVEN
LEWIS, AKA King Scoobz, CARLOS ROMERO, AKA
King Los, WILFREDO SANCHEZ, AKA King Frito,
FELIX LAGARES, AKA King Bavage, KELVIN
LAGARES, AKA King Haze, JUAN RIOS, AKA King
Juan, ANDREW SANCHEZ, AKA Animal, WILFREDO

                                                     1
NIEVES, AKA Jo Jo, NOEL VELEZ, LUIS TAMBITO,
AKA King Luch, CHRISTOPHER MCNAIR, AKA King
Speedy, WILLIAM OVERTON, AKA King TuTu,
TOMAS JIMENEZ, AKA King Tunes, RICARDO
RAMOS, AKA Carlito, NICHOLAS COLON, AKA King
Tragedy, CARLOS ORTIZ, AKA King Tone, DAMON
SINCLAIR, AKA King Dash, ANGELO DELEON, AKA
King Truth, DEVON SMITH, AKA King Bullethead,
EDNA REYES, AKA Queen Anita, RANDY ANGULO,
AKA King Randy, LEO AUSTIN, AKA King Pumba,
NELSON CALDERON, AKA King Murder, EVA
CARDOZA, JOSE LAGOS, AKA King Gordo,
                                 Defendants.
----------------------------------------------------------------------
APPEARING FOR APPELLANTS:                          MARSHA R. TAUBENHAUS, Law Offices of
                                                   Marsha R. Taubenhaus, New York, New York,
                                                   for Christian Sanchez.

                                           ROBERT JOSEPH BOYLE, ESQ., New York,
                                           New York, for Wilson Pagan.

APPEARING FOR APPELLEE:                    BENJAMIN ALLEE (Brian A. Jacobs, on the
                                           brief), Assistant United States Attorneys, for
                                           Preet Bharara, United States Attorney for the
                                           Southern District of New York, New York,
                                           New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Cathy Seibel, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments entered on October 18, 2013, (as to Christian

Sanchez) and December 20, 2013, (as to Wilson Pagan) are AFFIRMED.

       Defendants Wilson Pagan and Christian Sanchez, two former heads of the

Newburgh, New York, chapter of the “Latin Kings” gang, stand convicted after trial of 14

counts and 19 counts, respectively, relating to racketeering, violent acts in aid of

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racketeering, firearms, and narcotics.1 Pagan was sentenced principally to life plus 85

years’ imprisonment, and Sanchez was sentenced principally to life plus 110 years’

imprisonment. On appeal, both defendants challenge the sufficiency of the evidence

supporting their convictions and ascribe myriad errors to the trial court. We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Pagan’s Arguments

       A.     Juror Dismissal

       Pagan faults the district court for dismissing a juror, after trial had begun, for

professed financial hardship.     We review a decision to discharge a juror before

deliberation for abuse of discretion. See United States v. Fazio, 770 F.3d 160, 169 (2d

Cir. 2014). We will not identify such abuse absent “bias or prejudice to the defendant,”

which may be found “when the discharge is without factual support, or for a legally

irrelevant reason.” Id. at 170. That is not this case.

       The discharged juror, the sole employee of a small business, advised the court that

her employer would not pay her during jury service unless she otherwise made up the time,

circumstances that posed a financial hardship. See Trial Tr. 1419–20. The district court

unsuccessfully tried to contact the employer and afforded the juror a day to seek employer

consideration. When the juror was unable to do so, the district court had a sufficient


1
  Pagan was convicted of 15 counts, but the conviction on Count 31 of the Superseding
Indictment, a violation of 18 U.S.C. § 924(c), was vacated without opposition by the
government because it was a lesser included offense of the § 924(j) charge in Count 32.

                                             3
factual basis to excuse the juror. See Trial Tr. 1422–23, 1679–80; cf. United States v.

Millar, 79 F.3d 338, 342 (2d Cir. 1996) (identifying reasonable cause to dismiss juror

where juror’s “father died suddenly during the trial”). Under these circumstances, and in

the absence of any other showing of prejudice, we identify no abuse of discretion

warranting a new trial.

       B.     Pinkerton Jury Instruction

       Pagan argues that the district court erroneously instructed the jury that it could find

Pagan guilty of charged violent crimes in aid of racketeering, see 18 U.S.C. § 1959(a), on

the basis of foreseeable acts of coconspirators in furtherance of their conspiracy. See

Pinkerton v. United States, 328 U.S. 640, 646–48 (1946); accord United States v. Coplan,

703 F.3d 46, 71 (2d Cir. 2012). We review a preserved challenge to a jury instruction de

novo, “viewing the charge as a whole,” and we will reverse only if we identify both error

and prejudice. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010). Where a

challenge is unpreserved, we review only for plain error. See United States v. Nouri, 711

F.3d 129, 138 (2d Cir. 2013).

       Pagan argues that the Pinkerton instruction was error because the violent crimes

underlying the § 1959(a) charges were state offenses, and New York law rejects Pinkerton

liability. See People v. McGee, 49 N.Y.2d 48, 56–58, 424 N.Y.S.2d 157, 161–62 (1979).

Pagan’s argument is foreclosed by United States v. Diaz, 176 F.3d 52 (2d Cir. 1999).

There, we rejected a similar challenge to a Pinkerton instruction for a § 1959(a) charge

based on a violent crime under Connecticut law. In so holding, Diaz stated that “the


                                              4
racketeering statutes are not meant to incorporate state procedural and evidentiary law;

rather, references to state law in these statutes serve merely a definitional purpose, that is,

to identify generally the kind of conduct made illegal by the federal statute.” Id. at 100.

The pronouncement was not limited to § 1959(a) convictions predicated on violations of

Connecticut law, although by that time Connecticut had expressly accepted the Pinkerton

theory of liability. See State v. Walton, 227 Conn. 32, 45–46 (1993). Defendants argue

that Diaz is therefore inapplicable where, as here, the state substantive criminal law

governing the predicate acts expressly rejects Pinkerton liability. See People v. McGee,

49 N.Y.2d at 56–58, 424 N.Y.S.2d at 161–62 (“To permit mere guilt of conspiracy to

establish the defendant’s guilt of the substantive crime without any evidence of further

action on the part of the defendant, would be to expand the basis of accomplice liability

beyond the legislative design.”). Defendants further argue that our circuit has since made

explicit the need to prove at trial all elements of a state offense where the § 1959(a)

conviction was premised on violations of state law. See, e.g., United States v. Desena,

287 F.3d 170, 177 & n.1 (2d Cir. 2002) (assuming for the purposes of the appeal that,

where state law defined the predicate act under § 1959, the government needed to prove

beyond a reasonable doubt the elements of state attempt liability, but explicitly finding it

“unclear whether § 1959 imports state law of attempt and conspiracy or whether federal

law governs” in such a context); see also United States v. Carrillo, 229 F.3d 177, 185–86

(2d Cir. 2000) (declining to decide the issue, but observing that the plain language of §

1961(1) and § 1959(a) “seem to require of a predicate act based on state law that the act


                                              5
include the essential elements of the state crime”).2

       Defendants are correct that panels of this court have expressed some doubt about

Diaz’s continued viability. See United States v. Carrillo, 229 F.3d at 185 (expressing

“serious doubts” about whether Diaz’s reasoning on jury charges as to state substantive

elements “can stand the test of time”); see also United States v. Pimentel, 346 F.3d 285,

302–05 (2d Cir. 2003) (repeating similar doubts).          Nevertheless, this court has not

expressly disavowed Diaz’s broad language, much less reversed its holding. Even if these

more recent precedents conflict with Diaz to some extent, Diaz remains controlling

authority. See Tanasi v. New Alliance Bank, 786 F.3d 195, 200 n.6 (2d Cir. 2015)

(“Where a second panel’s decision seems to contradict the first, and there is no basis on

which to distinguish the two cases, we have no choice but to follow the rule announced by

the first panel.”). Thus, in light of Diaz’s explicit language, we cannot conclude that the

district court’s use of a Pinkerton instruction constituted plain error.

       C.     Melendez’s Statements

       The district court admitted an out-of-court statement by Jason Melendez to Luis

Tambito pursuant to Fed. R. Evid. 801(d)(2)(E). To admit a statement under that rule, the

district court must make a preponderance finding “(a) that there was a conspiracy, (b) that

its members included the declarant [here, Melendez] and the party against whom the

statement is offered [here, Pagan], and (c) that the statement was made during the course of


2
  In that regard, we note that the jury charge in this case correctly instructed the jury as to
all the elements of the underlying state crimes, but it then charged that the government
could carry this burden on a Pinkerton theory.

                                               6
and in furtherance of the conspiracy.” United States v. James, 712 F.3d 79, 105 (2d Cir.

2013). The district court’s findings on these issues are reviewed for clear error, see id.,

which is not evident here.

       The record, which includes Melendez’s statements, see Fed. R. Evid. 801(d)(2),

supports the district court’s finding that Pagan and Melendez were members of a

conspiracy to assault or murder members of a rival gang, the Bloods. See United States v.

Gigante, 166 F.3d 75, 83 (2d Cir. 1999) (holding that conspiracy must have “specific

criminal goal in addition to a general conspiracy to be members of” gang). Relevant facts

include: (1) Melendez’s statement that he agreed with Pagan to shoot members of the

Bloods, see Trial Tr. 2124; (2) a police officer’s testimony that he encountered Melendez

and Pagan on Dubois Street—the same street where Pagan’s gang later attempted to

murder a Bloods member—and found Melendez to be carrying a loaded firearm, see id. at

1713–16, 2124, 2400; and (3) a letter from Melendez stating his support for the Newburgh

chapter of the Latin Kings, see Pagan App. 156. The record also supports the district

court’s finding that Melendez’s statements to Tambito were in furtherance of the

conspiracy. The statements informed Tambito of the rivalry between the Latin Kings and

the Bloods, legitimized Melendez’s authority within the Latin Kings, and justified

Melendez’s order to Tambito to fight Bloods members “on sight.” Trial Tr. 2121–22; see

United States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (holding that statements further

conspiracy where they “prompt the listener to respond in a way that promotes or facilitates

the carrying out of a criminal activity” or “serve to foster trust and cohesiveness, or inform


                                              7
each other as to the progress or status of the conspiracy” (internal quotation marks and

ellipsis omitted)).

          Pagan’s challenge to the admission of the Melendez statements therefore fails on the

merits.

          D.    Pagan’s Sufficiency Challenges

          On a sufficiency challenge, we view the record in the light most favorable to the

government and will affirm if it would permit any rational jury to find guilt beyond a

reasonable doubt. See United States v. McGinn, 787 F.3d 116, 122 (2d Cir. 2015).

Pagan submits that the record was insufficient to demonstrate that he (a) was responsible

for the May 6, 2008 attempted murder of Anthony Hill, which resulted in the murder of

Jeffrey Zachary, a finding necessary to Counts 1, 2, 3, 4, 5, 6, and 32; (b) conspired to

violate the narcotics laws, a finding necessary to Counts 1, 2, 23, 29, and 30; and (c)

conspired to commit assault on November 1, 2008, in aid of racketeering, a finding

necessary to Counts 7 and 33. We reject each of these challenges.

                a.      May 6, 2008 Attempted Murder and Murder

          The record shows that Pagan conspired with Melendez to shoot Bloods members in

retaliation for the murder of Latin Kings member Brian Triminio and that Pagan, Jose

Lagos (Triminio’s brother), and Melendez, who was carrying a loaded firearm, were found

on April 27, 2008, on the street where Hill, a Bloods member, lived. See Trial Tr. 1712–

16, 2400. Evidence also showed that, ten days later, on May 6, 2008, when another Latin

Kings member, Josh Torres, stated he was willing to kill a Bloods member, Lagos called


                                               8
Pagan to the scene, and Pagan gave Torres the go-ahead. See id. at 2110–13. Finally, the

evidence showed that after speaking to Pagan, Torres and Daniel Correa (a prospective

member of the Latin Kings) attempted to shoot Hill, but instead shot and murdered

Zachary. See id. at 2117, 2466.

       Viewed in the light most favorable to the government, this evidence supported a

jury finding beyond a reasonable doubt that Pagan ordered the Hill murder and thereby

caused the Zachary murder.

              b.     Narcotics Conspiracy

       Pagan argues that the evidence showed only individual drug dealing and not any

coordinated conspiracy. This is belied by the record, which included recordings of Pagan

dictating the drug-dealing practices of other Latin Kings members. See Gov’t Ex. 2802T,

at 10–11 (instructing member to avoid drug conflict near property owned by his uncle);

Gov’t Ex. 2804T, at 8–9 (instructing members not to wear Latin Kings colors while dealing

drugs or when encountering police); id. at 11 (warning members about federal

investigation); id. at 17 (instructing members to avoid conflict on drug corners so as not to

harm other Latin Kings’ drug dealing business); id. at 18 (commenting that members were

making sufficient money selling drugs). Viewed in the light most favorable to the

government, this evidence supported a jury finding of a common conspiracy. See United

States v. Berger, 224 F.3d 107, 115 (2d Cir. 2000) (“In the context of narcotics operations,

. . . a single conspiracy exists where the groups share a common goal and depend upon and

assist each other, and we can reasonably infer that each actor was aware of his part in a


                                             9
larger organization where others performed similar roles.” (internal quotation marks

omitted)); accord United States v. Payne, 591 F.3d 46, 61 (2d Cir. 2010).

              c.     Conspiracy To Assault in Aid of Racketeering

       Pagan argues that the November 1, 2008 conspiracy to assault was not in aid of

racketeering because there was no evidence that the intended victims were members of a

rival gang. See Pagan Br. 52. That misses the point, which asks only whether the

intended assault, whatever the association of its victims, was intended to aid defendants’

racketeering. Trial evidence showed that a fight erupted between Latin Kings members

and the assault victims after Latin Kings members displayed a gang sign. See Trial Tr.

2932. It further showed that one of the targeted individuals had a history of problems with

the Latin Kings gang. See id. at 2484–85. These circumstances permitted the jury to find

that Pagan entered the assault conspiracy because of his membership in the Latin Kings,

and in order to further its objectives. See United States v. Farmer, 583 F.3d 131, 141 (2d

Cir. 2009) (holding motive element of 18 U.S.C. § 1959(a) satisfied “if the jury could

properly infer that the defendant committed his violent crime because he knew it was

expected of him by reason of his membership in the enterprise or that he committed it in

furtherance of that membership” (internal quotation marks omitted)).

      Accordingly, all of Pagan’s challenges to his conviction are meritless.

2.    Sanchez’s Arguments

       To the extent Sanchez joins several of Pagan’s arguments, we reject them for the

reasons just stated. Sanchez’s individual arguments are also without merit.


                                            10
       A.     Alleged Fed. R. Evid. 605 Violation

       Sanchez argues that the trial judge violated Fed. R. Evid. 605 by reading aloud from

portions of several trial exhibits. Although Sanchez did not object at trial, “[a] party need

not object to preserve” an alleged Rule 605 error. Fed. R. Evid. 605. The complained-of

action, however, raises no Rule 605 concern.

       Rule 605 states that “[t]he presiding judge may not testify as a witness at the trial.”

The rule exists to prevent “situations where the judge presiding at the trial forsakes the

bench for the witness stand or engages in equivalent conduct.” United States v. Sliker,

751 F.2d 477, 499 (2d Cir. 1984). The district judge did not assume a witness role merely

by reading from an exhibit already admitted into evidence because the witness reading the

exhibit stumbled. To the contrary, such conduct was permissible as part of the judge’s

duty to avoid wasting jury time. See Fed. R. Evid. 611(a)(2). The conclusion is only

reinforced by the fact that there was no dispute here as to what the exhibit actually said and

by the district judge’s explicit instruction that the jury should disregard anything she may

have said indicating a view of the evidence. See Trial Tr. 3979.

       Accordingly, Sanchez’s Fed. R. Evid. 605 challenge fails.3



3
  To the extent Sanchez contends that the prosecution engaged in misconduct by reading
one of the admitted exhibits during summation, that argument is insufficiently briefed and
therefore forfeited. See United States v. Kerr, 752 F.3d 206, 218 (2d Cir. 2014). In any
event, the contention is meritless. The government, like any party, may comment during
summation on the contents of admitted exhibits. See United States v. Cohen, 427 F.3d
164, 170 (2d Cir. 2005) (noting that “Government has broad latitude in the inferences it
may reasonably suggest to the jury during summation,” as long as those inferences are
reasonable “in light of the evidence presented at trial” (internal quotation marks omitted)).

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       B.     Recusal Claim

       Sanchez argues that the district judge was required to recuse herself pursuant to 28

U.S.C. § 455(b)(3) because, before she became a judge, she had prosecuted members of a

different chapter of the Latin Kings. Section 455(b)(3) requires recusal if a judge “has

served in governmental employment and in such capacity participated as counsel, adviser

or material witness concerning the proceeding or expressed an opinion concerning the

merits of the particular case in controversy.” Where, as here, no recusal motion was made

below, our review is limited to plain error. See United States v. Carlton, 534 F.3d 97, 100

(2d Cir. 2008). We identify no error, plain or otherwise.

       Sanchez does not contend that the district judge played any prosecutorial role in his

“particular case.” Section 455(b)(3) is therefore plainly inapposite. The judge’s prior

involvement in a case involving a different chapter of the Latin Kings did not require

recusal. Judges in our circuit who previously prosecuted Mafia figures commonly hear

cases involving the Mafia. Compare, e.g., United States v. Coppola, 671 F.3d 220 (2d Cir.

2012) (reviewing Mafia-related trial overseen by Judge John Gleeson), with United States

v. Locascio, 6 F.3d 924 (2d Cir. 1993) (reviewing Mafia-related trial prosecuted by

then-Assistant United States Attorney John Gleeson). This situation is no different and,

thus, Sanchez’s recusal challenge fails.

       C.     Sanchez’s Sufficiency Challenges

       Sanchez challenges jury findings that he (a) joined the charged narcotics

conspiracy, a finding necessary to Counts 23, 26, and 29; (b) conspired to murder a rival


                                            12
gang member on March 9, 2010, a finding necessary to Count 16; (c) agreed that informant

Samuel Cardona be assaulted, a finding necessary to Count 42; and (d) shot Mike Perez in

furtherance of a racketeering enterprise, a finding necessary to Counts 22 and 40. Each

challenge lacks merit.

              a.      Narcotics Conspiracy

       A cooperating witness testified that he, Sanchez, and other Latin Kings members

“all decided to go sell crack and whatever we had” on a particular street in Newburgh and

that Sanchez and another Latin Kings member made the decision to bring a gun. Trial Tr.

1276–77. Another witness testified that he saw Sanchez selling drugs at an intersection

controlled by the Latin Kings.       See Trial Tr. 1866–67.       Viewed in the light most

favorable to the government, these facts support Sanchez’s conviction for narcotics

conspiracy.

              b.      Murder Conspiracy

       Sanchez argues that the evidence showed only that he organized a mission to “shoot

at” rival gang members, not that he intended the shooting to be fatal, i.e., that he intended to

murder.    The argument warrants little discussion because a reasonable jury could

permissibly find that when Sanchez said, “shoot at,” he meant kill.

              c.      Assault of Cardona

       Sanchez argues that although he agreed that Cardona be kicked out of the Latin

Kings, he did not intend for Cardona to be assaulted. Sanchez concedes, however, that

members who were kicked out of the gang were often assaulted. See Sanchez Br. 56.


                                              13
Thus, when evidence is viewed in the light most favorable to the government, the jury

could infer that when Sanchez agreed that Cardona be kicked out of the gang, he intended

that it be effected, as occurred frequently, by an assault.

              d.     Shooting of Perez

       Sanchez argues that the evidence was insufficient to show that he shot Perez with

the purpose of “maintaining or increasing position” in the Latin Kings. 18 U.S.C.

§ 1959(a). Rather, Sanchez contends that the shooting resulted from an out-of-control

“scuffle.” Sanchez Br. 57. The trial testimony, however, indicated that the shooting was

the culmination of a fight between Sanchez and Perez as part of an internal leadership

struggle. See Trial Tr. 2083–90. From that testimony, a reasonable jury could infer that

Sanchez shot Perez at least in part to protect his leadership position within the gang.

       Accordingly, we reject all of Sanchez’s challenges to his conviction.

       We have considered defendants’ remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgments of the district court.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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