     12-4009-cr
     United States v. Kiond Jones

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of December, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GEOFFREY W. CRAWFORD,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               12-4009-cr
17
18       TORELL WHYTE, aka TERROR,
19       ANTHONY PRADDY, aka BIRDMAN,
20                Defendants,
21
22       KIOND JONES, aka KION, aka KIOND HING,
23                Defendant-Appellant.
24       - - - - - - - - - - - - - - - - - - - -X

                *
               The Honorable Geoffrey W. Crawford, of the United
         States District Court for the District of Vermont, sitting
         by designation.
                                                  1
 1
 2   FOR APPELLEE:              ANDREY SPEKTOR, Assistant United
 3                              States Attorney (Susan Corkery,
 4                              Assistant United States
 5                              Attorney, on the brief), for
 6                              Kelly T. Currie, Acting United
 7                              States Attorney, Eastern
 8                              District of New York, Brooklyn,
 9                              New York.
10
11   FOR APPELLANT:             GAIL JACOBS, Great Neck, New
12                              York (Richard E. Mischel,
13                              Mischel & Horn, P.C., New York,
14                              New York, on the brief).
15
16        Appeal from a judgment of the United States District
17   Court for the Eastern District of New York (Block, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of conviction on Count
21   Fourteen be REVERSED and the judgment of conviction on all
22   other counts be AFFIRMED; the matter is REMANDED for
23   resentencing on the affirmed counts, see United States v.
24   Rigas, 583 F.3d 108, 118-19 (2d Cir. 2009).
25
26        Kiond Jones appeals from the judgment of the United
27   States District Court for the Eastern District of New York
28   (Block, J.), sentencing him after jury trial principally to
29   50 years’ imprisonment for offenses committed in connection
30   with his participation in a drug-trafficking gang composed
31   primarily of residents of Raleigh Place in East Flatbush,
32   Brooklyn.
33
34        Jones was convicted of racketeering, in violation of 18
35   U.S.C. §§ 1962(c), 1963 (Count One); racketeering
36   conspiracy, in violation of 18 U.S.C. §§ 1962(d), 1963
37   (Count Two); and conspiracy to distribute 1000 kilograms or
38   more of marijuana, in violation of 21 U.S.C. §§ 846,
39   841(a)(1), 841(b)(1)(A)(vii) (Count Four). He was also
40   convicted of two violations of 18 U.S.C. § 924(c): unlawful
41   use of a firearm in furtherance of Counts One and Two
42   (crimes of violence) (Count Twelve); and unlawful use of a
43   firearm in furtherance of Count Four (a drug-trafficking
44   crime) (Count Fourteen).
45
46        Three racketeering acts (“RAs”) were attributed to
47   Jones in connection with Counts One and Two: conspiracy to

                                  2
 1   distribute 1000 kilograms or more of marijuana (RA 1); the
 2   kidnapping of Craig Hecclewood (RA 2); and the attempted
 3   murder of Moses Louis Osbourne (RA 3). While RA 1 was also
 4   charged substantively as Count Four, Jones could not be
 5   charged substantively with the kidnapping and attempted
 6   murder (RAs 2 and 3) because the five-year statute of
 7   limitations had run–-they occurred in May and July 2002, and
 8   the indictment was filed July 20, 2010. We assume the
 9   parties’ familiarity with the underlying facts, the
10   procedural history, and the issues presented for review.
11
12        1.  Jones challenges the sufficiency of the evidence
13   with respect to Count One (racketeering) and Count Two
14   (racketeering conspiracy) of the indictment. Viewed in the
15   light most favorable to the government, United States v.
16   Burden, 600 F.3d 204, 214 (2d Cir. 2010), the prosecution’s
17   evidence was sufficient to support Jones’s convictions.
18
19        2.  Jones also contends that the evidence was
20   insufficient for a reasonable jury to have found proof of
21   the firearms offenses within the five-year statute of
22   limitations. The predicates for Jones’s § 924(c)
23   convictions (RICO, RICO conspiracy, and drug-trafficking
24   conspiracy) are all continuing offenses. See United States
25   v. Payne, 591 F.3d 46, 69 (2d Cir. 2010) (narcotics
26   distribution conspiracy); United States v. Wong, 40 F.3d
27   1347, 1366 (2d Cir. 1994) (RICO and RICO conspiracy). “When
28   a defendant is convicted of violating § 924(c)(1)(A) for
29   using or carrying a firearm during and in relation to a
30   crime that is a continuing offense, the § 924(c)(1) crime
31   itself is a continuing offense.” Payne, 591 F.3d at 69.
32
33        Jones relies on United States v. Praddy, 725 F.3d 147,
34   156-59 (2d Cir. 2013), which carved out an exception to this
35   general rule. Anthony Praddy was convicted of possessing a
36   firearm during and in relation to participation in a
37   marijuana trafficking conspiracy. In the course of a 2004
38   arrest (i.e., in the pre-limitations period), a police
39   officer discovered a gun in Praddy’s backpack; the gun was
40   seized. Importantly, there was no other evidence that
41   Praddy had ever possessed a firearm. We concluded that,
42   while “possession is presumed to continue until the
43   underlying conspiracy offense has run its course, it would
44   defy all reason to give effect to that presumption after
45   such time as the gun has in fact been seized by law



                                  3
 1   enforcement authorities,” and reversed the § 924(c)
 2   conviction.1
 3
 4        Jones contends that he is in the same position as
 5   Praddy, apparently because a loaded firearm he was carrying
 6   when arrested on December 31, 2002, was seized by the
 7   police. But the unusual circumstances in Praddy are not
 8   present here. There was testimony at trial that Jones had
 9   been seen with at least three different firearms, and that
10   Jones had utilized various firearms in connection with his
11   racketeering and drug-trafficking activities. The seizure
12   of one of them therefore does not undermine the presumption
13   that his possession of the others continued throughout the
14   pendency of the continuing predicate offenses. Moreover, a
15   weapon was seized from Jones’s residence in 2007 (after the
16   2002 seizure and within the statute-of-limitations period)
17   near marijuana paraphernalia containing Jones’s
18   fingerprints. A reasonable jury could have inferred that
19   Jones used this firearm and/or other non-seized firearms in
20   furtherance of the drug-trafficking conspiracy and the RICO
21   offenses.
22
23        3.  Jones argues that the trial court constructively
24   amended the indictment when it charged the jury as to the
25   § 924(c) firearms counts. The jury was instructed that a
26   guilty verdict required proof beyond a reasonable doubt that
27   Jones used, carried, or possessed a firearm in furtherance
28   of the predicate offenses, and that proof of discharge or
29   brandishing were sufficient to constitute use, but were not
30   required. Jones argues that the indictment--which alleged
31   that he used, carried, possessed, brandished, and discharged
32   a firearm in connection with the predicate offenses--charged
33   him “narrow[ly]” with the “more serious offense” of
34   discharge of the firearm, and therefore the jury charge
35   “‘broaden[ed] the possible bases for conviction from that
36   which appeared in the indictment.’” Br. for Def.-Appellant
37   Kiond Jones at 64 (quoting United States v. Banki, 685 F.3d
38   99, 118 (2d Cir. 2011)).
39
40        Jones’s argument fails because “[w]here there are
41   several ways to violate a criminal statute, . . . ‘federal
42   pleading requires . . . that an indictment charge in the
43   conjunctive to inform the accused fully of the charges.’ A


         1
           Incidentally, Anthony Praddy was Jones’s co-
     defendant. We affirmed all other counts of conviction.
                                  4
 1   conviction under such an indictment will be sustained if the
 2   evidence indicates that the statute was violated in any of
 3   the ways charged.” United States v. McDonough, 56 F.3d 381,
 4   390 (2d Cir. 1995) (quoting United States v. McGinnis, 783
 5   F.2d 755, 757 (8th Cir. 1986)) (brackets omitted). The
 6   indictment gave Jones “notice of the core of criminality to
 7   be proven at trial,” United States v. D’Amelio, 683 F.3d
 8   412, 417 (2d Cir. 2012) (quoting United States v. Rigas, 490
 9   F.3d 208, 228 (2d Cir. 2007)) (emphases omitted), which was
10   the use of a firearm in connection with the Raleigh Place
11   drug-trafficking enterprise and conspiracy. Compare 18
12   U.S.C. § 924(c)(1)(A) (criminalizing use, carrying, or
13   possession), with id. § 924(c)(1)(A)(i)-(iii) (setting forth
14   sentencing consequences for various types of use). It
15   sufficiently “enables him to plead an acquittal or
16   conviction in bar of future prosecutions for the same
17   offense.” D’Amelio, 683 F.3d at 417 (quoting United States
18   v. Resendiz-Ponce, 549 U.S. 102, 108 (2007)); see also,
19   e.g., United States v. Miller, 471 U.S. 130, 135 (1985)
20   (“The indictment was also sufficient to allow Miller to
21   plead it in the future as a bar to subsequent prosecutions.
22   Therefore, none of [the] ‘notice’ related concerns--which of
23   course are among the important concerns underlying the
24   requirement that criminal charges be set out in an
25   indictment--would support the result of the Court of Appeals
26   [vacating the judgment of conviction].”).
27
28        4.  As explained above, the district court charged the
29   jury to find whether Jones had used, carried, or possessed a
30   firearm in connection with the predicate offenses. The
31   court then found, as a sentencing factor, that Jones had
32   discharged his weapon in connection with Count Twelve, and
33   sentenced him to the higher mandatory minimum sentence (10
34   years’ incarceration, rather than 5). This followed
35   governing law at the time, see Harris v. United States, 536
36   U.S. 545, 567-70 (2002); United States v. Gomez, 580 F.3d
37   94, 104 (2d Cir. 2009), but (as the government concedes) it
38   is error in view of Alleyne v. United States, 133 S. Ct.
39   2151 (2013), which requires that any fact increasing a
40   mandatory minimum sentence must be submitted to the jury.
41
42        However, the error was harmless. See United States v.
43   Friedman, 300 F.3d 111, 127-28 (2d Cir. 2012) (analyzing
44   analogous Apprendi claim for harmless error). The district
45   judge found that Jones discharged his weapon when he shot
46   Osbourne. The jury necessarily so found, because it found
47   RA 3 (the attempted murder of Osbourne) proved; and no

                                  5
 1   evidence was presented at trial to suggest that Jones could
 2   have attempted to kill Osbourne in any way other than
 3   through the discharge of his weapon. Moreover, it does not
 4   appear that Jones contested that he had shot Osbourne. His
 5   defense concerned the alleged motivation underlying that
 6   shooting (that it was unrelated to the marijuana
 7   distribution conspiracy). See Neder v. United States, 527
 8   U.S. 1, 17 (1999) (when “omitted element was uncontested and
 9   supported by overwhelming evidence,” erroneous instruction
10   was harmless); Friedman, 300 F.3d at 128 (holding Apprendi
11   error harmless due to what jury necessarily found in
12   rendering its verdict).
13
14        5.  Jones also argues that the two firearms counts
15   were multiplicitous; as to this, we agree.2
16
17        Lesser-included offenses and their greater offense are
18   considered a single offense, and may not be punished
19   separately. See Blockburger v. United States, 284 U.S. 299,
20   304 (1932). There is an exception to this rule for RICO
21   offenses and their predicate racketeering acts. Congress
22   intended “to permit cumulative sentences for a RICO
23   conviction and the predicate offenses upon which the RICO
24   violation is premised.” United States v. Walsh, 700 F.2d
25   846, 856 (2d Cir. 1983).
26
27        There is no such exception for § 924(c) offenses. See
28   United States v. Lindsay, 985 F.2d 666, 677 (2d Cir. 1993).
29   We concluded in Lindsay that there was “ambigu[ity] as to
30   whether congress intended that a defendant should be
31   convicted of two § 924(c)(1) violations in relation to
32   greater and lesser-included offenses,” and vacated one of
33   two § 924(c) offenses in which the predicates were a cocaine
34   conspiracy (a lesser-included offense) and managing a
35   continuing criminal enterprise (the greater offense). Id.;


         2
           Jones did not raise this argument below. However, we
     are satisfied that the error rises to the level of plain
     error. The error is sufficiently “plain”; and 25 years of
     Jones’s incarceral sentence is attributable to a conviction
     obtained in violation of the Double Jeopardy Clause. See 18
     U.S.C. § 924(c)(1)(C)(i), (D)(ii). Given the magnitude of
     the sentencing consequences, the error both affects Jones’s
     substantial rights and seriously affects the fairness,
     integrity, and public reputation of these proceedings. See
     United States v. Riggi, 541 F.3d 94, 102 (2d Cir. 2008).
                                  6
 1   see Bell v. United States, 349 U.S. 81, 84 (1955) (“[I]f
 2   Congress does not fix the punishment for a federal offense
 3   clearly and without ambiguity, doubt will be resolved
 4   against turning a single transaction into multiple
 5   offenses.”).
 6
 7        Count Twelve charged Jones with the use of a firearm in
 8   furtherance of Counts One and Two (racketeering and
 9   racketeering conspiracy); and Count Fourteen charged Jones
10   with the use of a firearm in furtherance of Count Four
11   (marijuana distribution conspiracy). These two § 924(c)
12   counts are multiplicitous because the predicates for Jones’s
13   firearms convictions are a lesser-included offense (the
14   marijuana distribution conspiracy) and greater offenses (the
15   RICO offense and the RICO conspiracy). The RICO exception
16   permits the government to seek punishment for RICO offenses
17   and their predicate acts notwithstanding that one is lesser-
18   included in the greater; however, it does not follow that
19   Congress intended multiple § 924(c) convictions predicated
20   on those lesser-included and greater offenses.3
21   See Lindsay, 985 F.2d at 677.
22
23        Accordingly, one of Jones’s firearms convictions must
24   be reversed. We reverse the conviction on Count Fourteen
25   and affirm the conviction on Count Twelve (which includes a
26   higher mandatory minimum for discharge of the weapon). See
27   Rutledge v. United States, 517 U.S. 292 (1996) (rejecting
28   prior Second Circuit practice of vacating multiplicitous
29   sentences only and combining convictions); Underwood v.
30   United States, 166 F.3d 84, 86 (2d Cir. 1999) (discussing
31   Rutledge); cf. Lindsay, 985 F.2d at 676 (vacating
32   convictions with less severe sentences and leaving in place
33   conviction with enhanced sentence for use of a firearm
34   equipped with a silencer).
35


         3
           The line of cases the government cites, Br. for the
     United States at 29-30, is inapposite. These cases deal
     with an exception to the general rule that § 924(c) offenses
     based on different or distinct predicate offenses are not
     multiplicitous. See, e.g., United States v. Mejia, 545 F.3d
     179 (2d Cir. 2008); United States v. Wallace, 447 F.3d 184
     (2d Cir. 2006); United States v. Finley, 245 F.3d 199 (2d
     Cir. 2001). But here, there are no different or distinct
     predicate offenses; rather, the predicates are lesser-
     included and greater offenses.
                                  7
1        For the foregoing reasons, the judgment of conviction
2   on Count Fourteen is REVERSED and the judgment of conviction
3   on all other counts is AFFIRMED; the matter is REMANDED for
4   resentencing de novo on the affirmed counts, see United
5   States v. Rigas, 583 F.3d 108, 118-19 (2d Cir. 2009).
6
7                              FOR THE COURT:
8                              CATHERINE O’HAGAN WOLFE, CLERK
9




                                 8
