     05-4500-cr(L)
     USA v. Major (Desinor)

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                                August Term 2007
 5
 6   (Argued: October 24, 2007                       Decided: May 8, 2008)
 7
 8      Docket Nos. 05-4500-cr(L), 05-5907-cr(con), 06-2256-cr(con)
 9   -----------------------------------------------------x
10   UNITED STATES OF AMERICA,
11
12               Appellee,
13
14                            -- v. --
15
16   WILNER DESINOR, JASON DENT, DAQUAN MAJOR,
17
18               Defendants-Appellants.
19
20   -----------------------------------------------------x
21
22   B e f o r e :     WALKER, STRAUB, and HALL, Circuit Judges.

23         Appeal from judgments of conviction of various narcotics

24   offenses entered in the United States District Court for the

25   Eastern District of New York (David G. Trager, Judge), sentencing

26   defendants to 360 months or more of incarceration.     We conclude

27   that defendants were not entitled to a jury charge on self-

28   defense; that there was no error in the jury charge regarding the

29   nexus between the drug conspiracy and the murder of a rival gang

30   member; and that the evidence was sufficient to prove the

31   existence of that nexus beyond a reasonable doubt.     However,

32   because the district court imposed a 120-month consecutive

33   sentence on defendant Desinor for discharging a firearm, without

34   making the requisite finding of discharge, that portion of

35   Desinor’s sentence must be vacated and remanded.

36         AFFIRMED IN PART, VACATED AND REMANDED IN PART.

                                         -1-
 1                                         AVRAHAM C. MOSKOWITZ (Joseph
 2                                         A. Grob, on the brief),
 3                                         Moskowitz & Book, New York,
 4                                         N.Y., for Defendant-Appellant
 5                                         Wilner Desinor.
 6
 7                                         BERNARD H. UDELL, Brooklyn,
 8                                         N.Y., for Defendant-Appellant
 9                                         Jason Dent.
10
11                                         LAURA OPPENHEIM (Richard I.
12                                         Rosenkranz, on the brief),
13                                         Brooklyn, N.Y., for Defendant-
14                                         Appellant Daquan Major.
15
16                                         EMILY BERGER, PETER KATZ,
17                                         Assistant United States
18                                         Attorneys, of counsel (Jo Ann
19                                         M. Navickas, Assistant United
20                                         States Attorney, of counsel,
21                                         on the brief), for Roslynn R.
22                                         Mauskopf, United States
23                                         Attorney for the Eastern
24                                         District of New York,
25                                         Brooklyn, N.Y., for Appellee.

26   JOHN M. WALKER, JR., Circuit Judge:

27        Following a jury trial, defendants-appellants Wilner

28   Desinor, Jason Dent, and Daquan Major were convicted of, inter

29   alia: conspiring to distribute and possess with intent to

30   distribute fifty or more grams of crack cocaine, in violation of

31   21 U.S.C. §§ 846 and 841(b)(1)(A); engaging in a narcotics

32   conspiracy resulting in murder, in violation of 21 U.S.C. §

33   848(e)(1)(A); engaging in a narcotics conspiracy while engaging

34   in a conspiracy to murder, in violation of 21 U.S.C. §§ 846 and

35   848(e)(1)(A); and using a firearm in relation to a drug

36   trafficking offense and during a crime of violence, in violation

37   of 18 U.S.C. § 924(c)(1)(A).   The District Court for the Eastern



                                     -2-
1    District of New York (David G. Trager, Judge), sentenced all of

2    the defendants to 360 months of imprisonment or more.

3         On appeal, defendants challenge their convictions and

4    sentences, arguing that: the district court erred in failing to

5    charge the jury on self-defense; error infected the jury

6    instruction on the nature of the relationship between the drug

7    conspiracy and the murder; the evidence was insufficient to prove

8    the requisite relationship beyond a reasonable doubt; and the

9    district court erred in imposing excessively long sentences.      All

10   but one of defendants’ arguments lack merit.    We conclude that

11   the district court erred in imposing a consecutive sentence of

12   120 months on Desinor for the discharge of a firearm in relation

13   to a drug trafficking crime, because it made no finding that a

14   discharge had occurred.   We therefore vacate that portion of

15   Desinor’s sentence and remand to the district court for

16   resentencing.

17                               BACKGROUND

18        Desinor, Dent, and Major were members of a violent gang,

19   known as “the Cream Team,”1 that sold crack cocaine at the

20   Marlboro housing project in Brooklyn.    Led by Dent, the Cream



     1
1         “Cream Team” is an acronym for “cash rules everything around
2    me, together everyone achieves more.” See Wu-Tang Clan,
3    C.R.E.A.M., on Enter the Wu-Tang (36 Chambers) (Loud/RCA Records
4    1993) (“Cash Rules Everything Around Me, CREAM, Get the money,
5    Dollar, dollar bill y’all . . . .”); see also Wyclef Jean,
6    Sweetest Girl (Dollar Bill) (Columbia Records 2007) (“Cos I’mma
7    tell you like Wu told me, cash rules everything around me . . .
8    .”).

                                     -3-
1    Team sold drugs primarily behind Building 8 of the Marlboro

2    Houses and in a nearby area called “the Stores.”    A rival drug

3    organization led by Kijuanne Thompson, known as “Yanni,” sold

4    crack cocaine in the vicinity of Building 2 of the Marlboro

5    project.   The Cream Team frequently used intimidation and

6    violence to protect its territory and obtain drug proceeds.   For

7    example, in the summer and fall of 1999, Major threatened to kill

8    a teenager working for Yanni if he continued to sell crack

9    cocaine behind Building 8, Dent stabbed a member of Yanni’s

10   organization who “wasn’t supposed to be” in Cream Team territory,

11   and Desinor struck a woman for not meeting a payment deadline for

12   crack that she had purchased on credit.

13        Against this backdrop, according to trial testimony by Cream

14   Team member Jason Jones, on March 24, 2000, Yanni held Dent’s

15   brother Joseph in a choke-hold, with a gun to his head, and

16   demanded Dent’s whereabouts.   Yanni subsequently fired shots at

17   Joseph, but missed him.   Joseph immediately reported these events

18   to Dent and other members of his gang.    Cream Team member Naequan

19   Clarke testified at trial that he, Dent, and Major grabbed

20   handguns and started toward Building 2 to retaliate but stopped

21   when they noticed a police presence.

22        The next morning, on March 25, 2000, Dent saw Yanni’s

23   cousin, Ramel Flowers, leaving Building 2 and, according to

24   testimony by Cream Team member James Mealey, shot at him because

25   Flowers was aligned with Yanni and had been looking



                                     -4-
1    “suspiciously” at Dent from the building.   Clarke testified that

2    later that evening, after Cream Team members saw Yanni and

3    several others in front of Building 2, Dent told his crew to arm

4    themselves and then to “light up building two” to “support the

5    Cream Team, defend the Cream Team and members of the Cream Team.”

6    Major and Clarke retrieved several guns and distributed them to

7    members including themselves, Desinor, Dent, and Jones.

8         Clarke and Jones entered Building 2.   Jones later testified

9    that Dent had ordered them to shoot Yanni or any member of his

10   crew that they saw.   Clarke testified only that the plan was to

11   look for Yanni in the lobby and to leave if he was not there.

12   Clarke and Jones decided to begin their search for Yanni at the

13   top floor and to work their way down.   Dent and Major stayed

14   outside as bait, while Desinor remained in the nearby bushes as a

15   lookout.   As Clarke and Jones descended the stairs from the

16   fourth or fifth floor with their guns drawn, they saw Flowers

17   burst through the door into the stairwell on the third floor.

18   When Flowers reached for what Clarke and Jones thought was a gun,

19   Clarke fired four or five shots until his handgun jammed, but his

20   shots missed Flowers.   At that point, Clarke pulled Jones in

21   front of him and told Jones to shoot Flowers.   Jones fired once

22   with his shotgun and hit Flowers, who died in the hospital.

23   Clarke later testified that he had first motioned to Flowers to

24   leave but opened fire when he thought he saw Flowers reaching for

25   a gun.



                                     -5-
1         On June 15, 2000, armed with a search warrant, police

2    searched the apartment where the Cream Team kept money, receipts,

3    guns, bullets, and drugs; seized the items kept there; and

4    arrested Dent and other Cream Team affiliates.

5         At trial, a jury found Dent, Major, and Desinor guilty of

6    conspiring to distribute and possess with intent to distribute

7    fifty or more grams of crack cocaine (“Count One”), in violation

8    of 21 U.S.C. §§ 846 and 841(b)(1)(A); engaging in a narcotics

9    conspiracy resulting in murder (“Count Two”), in violation of 21

10   U.S.C. § 848(e)(1)(A); engaging in a narcotics conspiracy while

11   engaging in a conspiracy to murder (“Count Three”), in violation

12   of 21 U.S.C. §§ 846 and 848(e)(1)(A); and using a firearm in

13   relation to a drug trafficking offense and during a crime of

14   violence (“Count Four”), in violation of 18 U.S.C. §

15   924(c)(1)(A).    Dent and Major were also convicted of unlawful use

16   of a firearm causing death (“Count Five”), in violation of 18

17   U.S.C. § 924(j)(1), and Major was convicted of being a felon in

18   possession of a firearm (“Count Six”), in violation of 18 U.S.C.

19   § 922(g)(1).    Pursuant to Pinkerton v. United States, 328 U.S.

20   640 (1946), defendants’ convictions on Counts Two, Four, and Five

21   were predicated on the liability of their co-conspirators, Clarke

22   and Jones, for the murder of Flowers.    See App. at 339-40

23   (instructing the jury that “the reasonably foreseeable acts . . .

24   of any member of the conspiracy in furtherance of the common

25   purpose of the conspiracy are deemed, under the law, to be the



                                      -6-
1    acts of all of the members, and all of the members are

2    responsible for such acts”).

3         The district court sentenced Desinor to three concurrent

4    terms of 240 months’ imprisonment on Counts One, Two, and Three,

5    and a consecutive 120-month prison term on Count Four; Dent to

6    four concurrent terms of 360 months’ imprisonment on Counts One,

7    Two, Three, and Five, and a consecutive 120-month prison term on

8    Count Four; and Major to four concurrent terms of 276 months’

9    imprisonment on Counts One, Two, Three, and Five, one concurrent

10   term of 120 months on Count Six, and a consecutive term of 120

11   months on Count Four.   This appeal followed.

12                                DISCUSSION

13        Defendants challenge their convictions on Count Two

14   (engaging in a narcotics conspiracy resulting in murder) on the

15   ground that the district court erred in refusing to instruct the

16   jury on self-defense.   Major also contends that the district

17   court erred in its jury charge regarding 21 U.S.C. §

18   848(e)(1)(A)’s requirement that the Flowers murder be related to

19   the drug conspiracy.    Defendants further argue that the evidence

20   was insufficient to prove this element of § 848(e)(1)(A) beyond a

21   reasonable doubt.   Finally, Desinor challenges his ten-year

22   consecutive sentence for discharging a firearm on the ground that

23   the district court failed to make a finding that any discharge

24   occurred.

25   I.   Jury Charge on Self-Defense



                                      -7-
1         Defendants first argue that because Clarke and Jones – the

2    two men directly responsible for the murder of Ramel Flowers –

3    arguably shot Flowers in self-defense, a properly charged jury

4    could have found that there was no “murder” or “intentional

5    killing” to provide the basis for defendants’ convictions on

6    Count Two (engaging in a narcotics conspiracy resulting in

7    murder).   In other words, because defendants’ convictions on

8    Count Two were based on the Pinkerton theory of co-conspirator

9    liability, a successful self-defense claim as to Clarke and Jones

10   would have eliminated the predicate murder upon which Pinkerton

11   liability for all defendants under Count Two was based.

12   Defendants contend that the district court erred in failing to

13   instruct the jury on the availability to Clarke and Jones of this

14   defense, as defendants had requested.

15        We review a district court’s refusal to issue requested jury

16   instructions de novo.   United States v. Gonzalez, 407 F.3d 118,

17   122 (2d Cir. 2005).   A conviction will not be reversed on this

18   basis unless the requested instruction was legally correct,

19   “represent[ed] a theory of defense with [a] basis in the record

20   that would lead to acquittal,” United States v. Bok, 156 F.3d

21   157, 163 (2d Cir. 1998) (internal quotation marks and citation

22   omitted), and the charge actually given was prejudicial,

23   Gonzalez, 407 F.3d at 122.

24        In support of their claim that Clarke and Jones killed

25   Flowers in self-defense, defendants point to Clarke and Jones’s



                                     -8-
1    testimony that they shot Flowers because they thought he was

2    reaching for a gun and were afraid that he was going to shoot

3    them.    As Clarke put it, “I reacted because I didn’t want to be

4    shot.”    In response, the government argues that Clarke and Jones

5    have no right to self-defense because they were the initial

6    aggressors in the conflict, and it is the law in this circuit

7    that “an aggressor in a conflict resulting in death may not claim

8    self-defense.”    Deluca v. Lord, 77 F.3d 578, 586 (2d Cir. 1996).

9           As the defense asserted at trial, there was at least minimal

10   evidence that, even if they were the initial aggressors, Clarke

11   and Jones withdrew and attempted to communicate their withdrawal

12   from the conflict with Flowers before Flowers reached for his

13   gun.    Clarke testified on direct examination that when Flowers

14   burst into the third floor stairwell, “I put my hand up to my

15   lips.    Tell him to be quiet. . . . I told him – I push him away,

16   like, go ahead.    But he stood there.   Started reaching for a

17   gun.”    On cross-examination, Clarke testified that he “motioned

18   to [Flowers] to leave so he would get out of the area” because he

19   was “going to let him go,” at which point Flowers “started to

20   reach for a gun.”    Clarke further testified that he “motioned for

21   [Flowers] to shut up and be quiet. . . . to tell him, go ahead,

22   and mind his business. . . . I push him away,” and he claimed

23   that he had no intention of shooting Flowers at that time because

24   “the plan was just to shoot Yanni.”

25           The government counters that the record does not adequately



                                      -9-
1    demonstrate that Clarke and Jones withdrew and communicated this

2    withdrawal to Flowers because Clarke’s hand gesture to Flowers

3    was ambiguous and was made while Clarke was still holding his

4    gun.    See Appellee’s Br. at 59 (arguing that Clarke’s gesture

5    alone “did not necessarily convey to Flowers that his life had

6    been spared,” and that “there were signs to the contrary” as

7    well).

8           We stated in United States v. Thomas that “[i]t has long

9    been accepted that one cannot support a claim of self-defense by

10   a self-generated necessity to kill.    The right of homicidal self-

11   defense is . . . denied to slayers who incite the fatal attack .

12   . . .”    34 F.3d 44, 48 (2d Cir. 1994) (omissions in original)

13   (internal quotation marks and citation omitted); cf. N.Y. Penal

14   Law § 35.15(1)(b) (providing that the justification of self-

15   defense is not available to an initial aggressor).    “Only in the

16   event that he communicates to his adversary his intent to

17   withdraw and in good faith attempts to do so is he restored to

18   his right of self-defense.”    United States v. Taylor, 510 F.2d

19   1283, 1287 (D.C. Cir. 1975) (internal quotation marks and

20   citation omitted); cf. N.Y. Penal Law § 35.15(1)(b) (providing an

21   exception whereby an initial aggressor may claim self-defense “if

22   the actor has withdrawn from the encounter and effectively

23   communicated such withdrawal to such other person but the latter

24   persists in continuing the incident”).

25          In this case, it is undisputable that Clarke and Jones were



                                     -10-
1    the initial aggressors when they entered Building 2 armed,

2    respectively, with a handgun and a shotgun, for the purpose of

3    killing Yanni and possibly other members of his crew.    Defendants

4    argue, however, that the two men shot Flowers in self-defense

5    after they indicated their desire that he leave and after he drew

6    a weapon on them.

7         We need not decide whether, to warrant a self-defense jury

8    charge, there was enough evidence that Clarke and Jones withdrew

9    from the encounter with Flowers and adequately communicated that

10   withdrawal to him.   This is because, in the context of this case,

11   for a self-defense justification to be available, (1) the

12   shooters had to have withdrawn from the confrontation with

13   Flowers and communicated that fact, and (2) the dangerous

14   situation they had created by setting out to kill Yanni or his

15   affiliates had to have dissipated.    Even if the evidence

16   unequivocally demonstrated that Clarke and Jones had done the

17   first of the two, they failed to show that at the time the

18   violent encounter with Flowers occurred, the dangerous situation

19   that they had created by entering Building 2 armed and with the

20   purpose of killing Yanni or his associates had ended.

21        Because the law pertaining to self-defense is a matter of

22   federal common law, see United States v. Butler, 485 F.3d 569,

23   572 n.1 (10th Cir. 2007) (noting that the justification defense

24   has been developed “by drawing on common law”), we find it

25   appropriate to look to state court decisions for guidance on the



                                    -11-
1    novel question we now address, see Wallace v. United States, 162

2    U.S. 466, 471-73 (1896) (drawing on, inter alia, state court

3    decisions in fashioning federal self-defense doctrine); Thomas,

4    34 F.3d at 48 (citing state statutory and case law on self-

5    defense).   Those decisions suggest that a defendant who initiates

6    a violent crime, such as an armed robbery, that results in a

7    fatal shooting may not claim self-defense absent a showing that,

8    at the time the shooting occurred, the dangerous situation

9    created by the initial crime had dissipated.   See, e.g., Gray v.

10   State, 463 P.2d 897, 909-10 (Alaska 1970) (holding that the

11   defendant, an armed robber, had forfeited his right to claim

12   self-defense because “the perilous situation created by the armed

13   robbery continued to exist at the time the shooting occurred,”

14   and that “[w]here, as in this case, the defendant commits a

15   felony which includes an immediate threat of violence, he has

16   created a situation so fraught with peril as to preclude his

17   claim of self-defense to any act of violence arising therefrom”).

18   The loss of this right holds even if the defendant, in good

19   faith, withdraws from the immediate confrontation and

20   communicates that withdrawal.   See, e.g., State v. Owen, 253 P.2d

21   203, 214-16 (Idaho 1953), overruled in part on other grounds by

22   State v. Shepherd, 486 P.2d 82 (Idaho 1971).   As long as the

23   defendant remains engaged in the perpetration or attempted

24   perpetration of the crime that he initiated, “he cannot be

25   excused for taking the life of his antagonist to save his own.



                                     -12-
1    In such a case it may be rightfully and truthfully said that he

2    brought the necessity upon himself by his own criminal conduct.”

3    Id. at 216 (internal quotation marks and citation omitted).

4          As evidence that the dangerous situation created by a

5    defendant’s initial crime persisted, courts in armed robbery

6    cases have cited the fact that the defendant was still inside the

7    robbed premises at the time of the shooting and that his gun was

8    always in his hand, prepared to shoot.   See, e.g., Gray, 463 P.2d

9    at 910 (concluding, based in part on these facts, that the

10   defendants were still engaged in the armed robbery at the time of

11   the shooting); State v. Diggs, 592 A.2d 949, 952 (Conn. 1991)

12   (“As long as a person keeps his gun in his hand prepared to

13   shoot, the person opposing him is not expected or required to

14   accept any act or statement as indicative of an intent to

15   discontinue the assault.” (internal quotation marks and citation

16   omitted)); Owen, 253 P.2d at 215 (“The deceased was not required

17   to accept [the defendant’s] command to ‘stand still and let me

18   out of here,’ as conclusive of his intention to abandon the hold-

19   up.   He was still being menaced by the flaming gun in [the

20   defendant’s] hand . . . .”); see also State v. Shockley, 80 P.

21   865, 869 (Utah 1905) (“[S]o long as [the defendant] kept his gun

22   in his hand prepared to shoot, [the victims] were neither

23   expected nor required to construe and accept any act or statement

24   of his as an intent on his part to discontinue the assault and

25   surrender himself as a prisoner.”).



                                    -13-
1         From this body of law, we conclude in this case that before

2    defendants could obtain a jury instruction on self-defense, they

3    must offer evidence from which a jury could find not only that

4    Clarke and Jones had demonstrably withdrawn from the immediate

5    confrontation with Flowers, but also that the dangerous situation

6    created by their initial undertaking to kill Yanni no longer

7    existed.    Defendants have not met that burden.   There is no doubt

8    that Clarke and Jones entered Building 2, armed with loaded guns,

9    for the purpose of killing Yanni and possibly other members of

10   his crew.    It makes no difference whether, as Clarke testified,

11   “the plan was just to shoot Yanni,” or, as Jones claimed, Dent

12   had ordered them to shoot Yanni or any member of his crew that

13   they encountered.    When they encountered Flowers in the

14   stairwell, they had already created a dangerous situation, by

15   virtue of their active participation in a conspiracy to commit

16   murder.    Cf. Owen, 253 P.2d at 216 (“[W]hen these men entered the

17   store, both armed with loaded guns, for the avowed purpose of

18   robbery, they bargained for violence.”).    And because the risk of

19   just such an encounter was precisely what made their conduct so

20   dangerous, the shooting was “an[] act of violence arising

21   therefrom.”    Gray, 463 P.2d at 910.

22        There was no evidence whatsoever that at the time Clarke and

23   Jones shot Flowers, the dangerous situation had abated or that

24   Clarke and Jones had lowered their guns.    Indeed, Clarke

25   testified that at the time he gestured to Flowers, he still



                                     -14-
1    “ha[d] [his] gun out.”   Plainly the danger from the conspiracy to

2    kill Yanni or his crew still loomed at the time of Flowers’s

3    murder.   Under these circumstances, the right of self-defense was

4    not available to Clarke and Jones, and no such right could

5    therefore be claimed by defendants.   The district court did not

6    err in denying the requested jury charge.

 7   II.   Jury Charge with Respect to § 848(e)(1)(A)’s “Engaging In”
 8         Element
 9
10         Section 848(e)(1)(A) of Title 21, pursuant to which

11   defendants were convicted on Counts Two and Three, sets forth the

12   penalties for “any person engaging in or working in furtherance

13   of . . . [a drug] offense punishable under section 841(b)(1)(A) .

14   . . who intentionally kills or counsels, commands, induces,

15   procures, or causes the intentional killing of an individual.”

16   In charging the jury on the “engaging in” element of this

17   statute, the district court stated that

18         the government must establish that a particular defendant
19         intentionally killed Ramel Flowers while engaging in a
20         conspiracy to distribute or possess with the intent to
21         distribute fifty or more grams of cocaine base. The term
22         “while engaged in” . . . requires not only that the crime
23         occur during the time period covered by the drug conspiracy,
24         but also that the killing be related in some meaningful way
25         to the drug conspiracy. Moreover, each individual
26         defendant’s participation in the killing must be related to
27         the drug conspiracy.
28
29              You may find that the killing was related to the drug
30         conspiracy if you find that there was a connection between
31         the individual defendant’s role in the killing and his
32         participation in the drug conspiracy. For example, a
33         defendant engaging in a narcotics conspiracy who kills a
34         spouse in a purely non-drug-related domestic dispute would
35         not satisfy this element of Count Two.
36

                                    -15-
1              The government must prove that at least one of the
2         defendant’s purposes or motives in the killing of Ramel
3         Flowers was because of the narcotics conspiracy charged in
4         Count One. It is not necessary for the government to prove
5         that this motive was the sole purpose, or even the primary
6         purpose, of a defendant to commit the charged crime. You
7         need only find that it was one of his purposes or motives.
8
9    App. at 358-59 (emphasis added).

10        Major argues that the district court did not adequately

11   instruct the jury on the law.    He contends that the district

12   court’s instruction impermissibly minimized the requirement of a

13   meaningful relationship between the Flowers murder and the

14   narcotics conspiracy charged in Count One.    Instead, he argues,

15   the jury should have been told that the necessary relationship

16   was more substantial, and that furthering the narcotics

17   conspiracy must have been more than just one of many potential

18   purposes in killing Flowers.    Along these lines, defendants

19   requested the following instruction:

20        If you find that a number of motives led to the killing of
21        Ramel Flowers you must be unanimously persuaded beyond a
22        reasonable doubt that a motive meaningfully related to the .
23        . . narcotics conspiracy was at least as important as any
24        other influencing factor before you can convict the
25        defendant. Thus, if you find that a factor unrelated to the
26        specified narcotics conspiracy was more significant to the
27        murder of Ramel Flowers, you must acquit the defendant even
28        if you find that there was a secondary, less significant
29        factor relating to the specified narcotics conspiracy that
30        may also have influenced the murder.
31
32   App. at 62-63 (emphasis added).

33        We review jury instructions de novo, “reversing only where a

34   charge either failed to inform the jury adequately of the law or

35   misled the jury about the correct legal rule.”    United States v.



                                     -16-
1    Ganim, 510 F.3d 134, 142 (2d Cir. 2007) (internal quotation marks

2    and citation omitted), petition for cert. filed, 76 U.S.L.W. 3512

3    (U.S. Mar. 7, 2008) (No. 07-1162).    “Where, as here, a defendant

4    requested a different jury instruction from the one actually

5    given, the defendant bears the burden of showing that the

6    requested instruction accurately represented the law in every

7    respect,” United States v. Nektalov, 461 F.3d 309, 313-14 (2d

8    Cir. 2006) (internal quotation marks and citation omitted), and

9    that “viewing the charge as a whole, there was a prejudicial

10   error,” United States v. Brand, 467 F.3d 179, 205 (2d Cir. 2006)

11   (internal quotation marks and citation omitted), cert. denied,

12   127 S. Ct. 2150 (2007).   We reject Major’s argument.   The

13   district court’s instruction on the “engaging in” element was

14   neither erroneous nor prejudicial, and it would have been

15   improper to have given the defense’s requested charge.

16        We have had no previous occasion to construe the “engaging

17   in” element of 21 U.S.C. § 848(e)(1)(A) in a way that answers

18   defendants’ argument.   The district court in United States v.

19   Walker, 912 F. Supp. 646, 653 (N.D.N.Y. 1996), aff’d 142 F.3d 103

20   (2d Cir. 1998), stated that § 848(e)(1)(A) required the

21   government to “prove that the killing was related in some

22   meaningful way to the [narcotics conspiracy] and the Court will

23   charge the jury that it must so find.”   In response to the

24   defendant’s sufficiency challenge, the district court found it

25   sufficient, “[o]n the record before it,” that “a rational jury



                                    -17-
1    could conclude on at least one basis that the intentional killing

2    alleged here was committed in furtherance of the alleged

3    [narcotics conspiracy], (i.e. that the killing was undertaken to

4    secure drugs and money to be used in furtherance of the alleged

5    [narcotics conspiracy].”   Id. (emphasis added).

6          On appeal, we affirmed the conviction, concluding that on

7    the facts presented, “a rational jury could have found that the

8    purpose of the murder was to obtain drugs and money to be used in

9    furtherance of the [drug conspiracy].”    Walker, 142 F.3d at 112-

10   13.   Although we remarked in Walker that a jury could find that

11   the purpose of the murder was drug-related (as opposed to one

12   purpose), we did not comment on whether a jury was required to

13   find that the sole or primary purpose of the murder was drug-

14   related.   We now agree with the reasoning of the district court

15   in Walker and hold that no such requirement is necessary.

16         To convict a defendant of engaging in a narcotics conspiracy

17   resulting in murder (or engaging in a narcotics conspiracy while

18   engaging in a conspiracy to murder) under 21 U.S.C. §

19   848(e)(1)(A), the government need only prove beyond a reasonable

20   doubt that one motive for the killing (or conspiracy to kill) was

21   related to the drug conspiracy.   The existence of other motives

22   does not affect the government’s ability to satisfy the “engaging

23   in” element, as long as there is a substantive connection between

24   the defendant’s role in the murder (or murder conspiracy) and his

25   participation in the drug conspiracy.    Cf.   United States v.



                                    -18-
1    Jones, 101 F.3d 1263, 1267 (8th Cir. 1996) (construing §

2    848(e)(1)(A) as requiring the jury to find “a substantive

3    connection between the killing and the [narcotics conspiracy]”

4    (emphasis added)).   The government has no burden to establish

5    that a drug-related motive was the sole purpose, the primary

6    purpose, or even that it was equally as important as any non-

7    drug-related purpose, as long as it was one purpose.

8         Applying this principle to the instant case, we hold that

9    the district court correctly rejected defendants’ request and

10   properly instructed the jury on the necessary relationship

11   between the murder of Flowers and the drug conspiracy charged in

12   Count One.

13   III. Sufficiency of Evidence with Respect to § 848(e)(1)(A)’s
14        “Engaging In” Element
15
16        Defendants also challenge the sufficiency of the evidence

17   with regard to Counts Two and Three (engaging in a narcotics

18   conspiracy resulting in murder, and engaging in a narcotics

19   conspiracy while engaging in a conspiracy to murder,

20   respectively).   They argue that the government failed to prove

21   beyond a reasonable doubt that the Flowers murder and the

22   conspiracy to murder Yanni were drug-related; rather, they claim,

23   the evidence shows that those crimes stemmed from a personal feud

24   between Dent and Yanni.

25        Defendants raising a sufficiency challenge bear “a heavy

26   burden.”   United States v. Jackson, 335 F.3d 170, 180 (2d Cir.

27   2003) (internal quotation marks and citation omitted).   On

                                    -19-
1    appeal, we must “view the evidence presented in the light most

2    favorable to the government, and . . . draw all reasonable

3    inferences in its favor,” affirming the jury verdict “unless no

4    rational trier of fact could have found all of the elements of

5    the crime beyond a reasonable doubt.”   United States v.

6    Giovanelli, 464 F.3d 346, 349 (2d Cir. 2006) (per curiam)

7    (omission in original) (internal quotation marks and citations

8    omitted), cert. denied, 128 S. Ct. 206 (2007).    Furthermore, it

9    is the province of the jury to resolve conflicting testimony, and

10   we must defer to the jury’s assessment of witness credibility.

11   United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000).

12        Based on the evidence presented, and in light of our holding

13   in Part II, supra, a rational juror could have found that at

14   least one reason for both Flowers’s murder and the conspiracy to

15   murder Yanni or his crew was related to the drug distribution

16   conspiracy.   Defendants emphasize testimony by Clarke and Jones

17   “that the Flowers homicide and the murder conspiracy were the

18   culmination of a personal ‘beef’ [i.e., feud] between Jason Dent

19   and Yanni,” arising out of an altercation at a 1999 New Year’s

20   party, “and had nothing to do with a dispute over drugs.”

21   Appellant Desinor’s Br. at 37.    This “beef,” they claim,

22   escalated after Yanni choked and later shot at Dent’s brother,

23   Joseph, on March 24, 2000; the events of March 25, 2000 therefore

24   arose out of a desire (primarily on the part of Jason Dent) to

25   retaliate against Yanni for shooting at Joseph.   Defendants



                                      -20-
1    argue, based on this testimony and on separate testimony by

2    Clarke, that no drug war existed at the time of Flowers’s murder,

3    and that therefore no rational juror could have found the

4    requisite drug-related motive.    We disagree.

5          There is ample evidence in the record for the jury to have

6    found that the March 25, 2000 plan to attack Yanni and his crew

7    and the resulting murder of Flowers were related to the ongoing

8    drug rivalry between the Cream Team and Yanni’s crew and to the

9    defendants’ desire to dominate their rivals in the drug trade.

10   For example, Jones testified that the March 25 attack was “a crew

11   thing,” and Clarke testified that one of the purposes of going to

12   Building 2 that night was “to support the Cream Team, defend the

13   Cream Team and members of the Cream Team.”    Combining such

14   testimony with abundant evidence of the history of violent

15   disputes over drug territory between the Cream Team and Yanni,

16   the jury easily could have inferred that Flowers was simply

17   another casualty of this rivalry, and that whether or not there

18   was also a personal vendetta against Yanni, there was an

19   underlying motive to protect the Cream Team’s narcotics business

20   from Yanni’s interference.   See Walker, 142 F.3d at 112.   We

21   therefore reject defendants’ sufficiency challenge.

22   IV.   Desinor’s 120-Month Consecutive Sentence

23         Following Desinor’s conviction on Count Four for use of a

24   firearm in relation to a drug trafficking offense and during a

25   crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), the



                                      -21-
1    district court sentenced him on that count to a consecutive term

2    of 120 months’ imprisonment.   The sentence was based on §

3    924(c)(1)(A)(iii), which requires a minimum prison sentence of

4    120 months if the firearm is discharged.   Desinor challenges the

5    sentence on the ground that the district court failed to make any

6    finding as to whether he had actually discharged a weapon, as

7    opposed to simply carrying it, see 18 U.S.C. § 924(c)(1)(A)(i)

8    (providing a mandatory minimum of five years’ imprisonment), or

9    brandishing it, see id. § 924(c)(1)(A)(ii) (seven years).

10        We review a district court’s sentencing determination for

11   reasonableness, United States v. Booker, 543 U.S. 220, 260-62

12   (2005), which involves “consideration not only of the sentence

13   itself, but also of the procedures employed in arriving at the

14   sentence,” United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.),

15   cert. denied, 127 S. Ct. 192 (2006).   The standard of review is

16   abuse of discretion.   Gall v. United States, 128 S. Ct. 586, 591

17   (2007); United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir.

18   2007).

19        There is no doubt that the district court imposed the ten-

20   year statutory minimum sentence because it believed that the jury

21   had concluded that Desinor had discharged his firearm.   See App.

22   at 529-32.   There was no basis for this belief, however, because

23   the district court’s charge to the jury stated that, to convict

24   defendants on Count Four,

25        [t]he government does not . . . need to show that the
26        defendant fired or even attempted to fire the firearm.   It


                                    -22-
1         is enough for the government to show that he brandished or
2         displayed the weapon or otherwise made reference to it in a
3         manner calculated to further the commission of the crime
4         charged in Count One.
5
6    Id. at 362-63 (emphasis added).   Thus, the jury’s verdict on

7    Count Four did not determine that Desinor discharged a weapon,

8    and the district court never made its own independent finding to

9    that effect.   Cf. Harris v. United States, 536 U.S. 545, 556

10   (2002) (holding that 18 U.S.C. § 924(c)(1)(A) “regards

11   brandishing and discharging as sentencing factors to be found by

12   the judge, not offense elements to be found by the jury”).

13        Because, under these circumstances, the district court

14   abused its discretion in sentencing Desinor on Count Four, we

15   vacate that portion of the sentence and remand for further fact-

16   finding and for resentencing in accordance with this opinion.

17   V.   Defendants’ Remaining Arguments

18        We have fully considered defendants’ remaining arguments:

19   Desinor’s contention that his conviction on Count One for

20   conspiracy to distribute and possess with intent to distribute

21   fifty or more grams of crack cocaine cannot stand because the

22   evidence did not establish his involvement in the drug

23   conspiracy; Dent’s claim that his conviction on Count One cannot

24   stand because the evidence was insufficient to show (1) that he

25   was the leader of the Cream Team, and (2) that there was a single

26   narcotics conspiracy as opposed to a collection of independent

27   transactions; Dent’s arguments that the evidence was insufficient

28   to prove that he intended Flowers’s death, thereby invalidating

                                    -23-
1    his conviction on Count Two, and that the district court failed

2    to properly instruct the jury as to this specific intent

3    requirement; Major’s argument that he was prejudiced by the

4    admission of certain expert testimony; and Dent’s challenge to

5    his forty-year sentence as excessive.   We find all of these

6    arguments to be without merit.

7                               CONCLUSION

8         For the foregoing reasons, the judgments of the district

9    court as to Dent and Major are AFFIRMED.   The judgment as to

10   Desinor is AFFIRMED in part and VACATED in part, and the case is

11   REMANDED for further proceedings consistent with this opinion.




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