     08-0852-cr
     United States of America v. Hunter



                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20 th day of July, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                         08-0852-cr
18
19       TYRONE HUNTER, also known as T-Black,
20
21                    Defendant-Appellant,
22
23       ADRIAN PAYNE, also known as A,
24
25                Defendant.
26       - - - - - - - - - - - - - - - - - - - -X
27
28       APPEARING FOR APPELLANT:               Julia Pamela Heit, New York, NY.
29
 1   APPEARING FOR APPELLEE:    Ali Kazemi, Assistant United
 2                              States Attorney (David C. James,
 3                              Assistant United States
 4                              Attorney, on the brief), for
 5                              Loretta E. Lynch, United States
 6                              Attorney for the Eastern
 7                              District of New York, United
 8                              States Attorney’s Office for the
 9                              Eastern District of New York,
10                              Brooklyn, NY.
11
12        Appeal from a judgment of the United States District
13   Court for the Eastern District of New York (Gleeson, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Defendant-appellant Tyrone Hunter appeals from a
20   judgment of the United States District Court for the Eastern
21   District of New York (Gleeson, J.), convicting him of murder
22   in aid of racketeering and sentencing him to life
23   imprisonment. This judgment followed a jury trial and the
24   partial grant of Hunter’s motion for a judgment of acquittal
25   pursuant to Federal Rule of Criminal Procedure 29(c), and,
26   in the alternative, for a new trial pursuant to Federal Rule
27   of Criminal Procedure 33(a). We assume the parties’
28   familiarity with the underlying facts, the procedural
29   history, and the issues presented for review.
30
31        “We review the denial of a Rule 29 motion de novo,
32   viewing the evidence in the light most favorable to the
33   government.” United States v. Pizzonia, 577 F.3d 455, 462
34   (2d Cir. 2009). “We review challenges to a district court’s
35   denial of a Rule 33 motion for an abuse of discretion and
36   accept the district court’s factual findings unless they are
37   clearly erroneous.” United States v. McCourty, 562 F.3d
38   458, 475 (2d Cir. 2009) (internal quotation marks omitted).
39
40        Hunter presents five principal arguments challenging
41   his conviction for the murder of Eric Clemons in aid of
42   racketeering, charged as Count Four in the operative
43   indictment.
44
45        [1] Hunter seeks vacatur of his Count Four conviction
46   and remand for a new trial based on the district court’s
47   vacatur of the Count One conviction (and the corresponding

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 1   vacatur of Racketeering Act 7(b)) for failure to instruct
 2   the jury on withdrawal. The issue of withdrawal, however,
 3   has no bearing on the jury’s findings in the context of
 4   Count One that there was an enterprise, that engaged in
 5   racketeering activity, and in which Hunter held a position
 6   and the jury’s additional finding in the context of
 7   Racketeering Act 7(b) that Hunter murdered (or aided and
 8   abetted the murder of) Clemons. These findings would not be
 9   impaired by a finding that Hunter later withdrew from the
10   conspiracy, as he claims. The statute of limitations issues
11   that drove the partial grant of Hunter’s Rule 33 motion do
12   nothing to undermine those findings and therefore have no
13   impact on the role played by those findings in the Count
14   Four conviction.
15
16        [2] Hunter seeks reversal of the Count Four conviction
17   and dismissal of that portion of the indictment based on the
18   ground of insufficiency. Specifically, Hunter contends that
19   the evidence was insufficient to establish that his motive
20   for the Clemons murder was to maintain or increase his
21   position in the enterprise--the VICAR motive--rather than to
22   punish Clemons for engaging in a sexual relationship with
23   Charles Thomas’s partner. “[W]e review a claim of
24   insufficient evidence de novo.” United States v.
25   Oluwanisola, 605 F.3d 124, 134 (2d Cir. 2010) (internal
26   quotation marks omitted). “We must view the evidence in the
27   light most favorable to the government, crediting every
28   inference that could have been drawn in the government’s
29   favor.” United States v. Payne, 591 F.3d 46, 59 (2d Cir.
30   2010). The elimination of a suspected informant satisfies
31   the VICAR motive requirement. See United States v. Dhinsa,
32   243 F.3d 635, 671-72 (2d Cir. 2001). This remains so even
33   if the murder also satisfies a personal motive. See United
34   States v. Burden, 600 F.3d 204, 221 (2d Cir. 2010); United
35   States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992)
36   (explaining that the government need not “prove that
37   maintaining or increasing position in the RICO enterprise
38   was the defendant’s sole or principal motive”).
39   Notwithstanding Hunter’s attempts to depreciate evidence
40   that Clemons was viewed as a “snitch,” Thomas’s testimony
41   clearly supports the VICAR motive aimed at eliminating
42   Clemons as a suspected informant. Trial Tr. 1325, 1328,
43   1339-40. Although there is evidence supporting other




                                  3
 1   motives for the Clemons murder, none of it disavows or even
 2   undercuts the VICAR motive. 1
 3
 4        [3] Hunter seeks vacatur of his Count Four conviction
 5   and remand for a new trial based on the district court’s
 6   failure to provide sua sponte a special verdict sheet
 7   specifying the jury’s findings of the motive driving the
 8   Clemons murder. “[T]here is a historical preference for
 9   general verdicts, and a traditional distaste for special
10   interrogatories in criminal cases.” United States v. Bell,
11   584 F.3d 478, 484 (2d Cir. 2009) (per curiam) (internal
12   quotation marks omitted). Moreover, the district court
13   properly instructed the jury on the VICAR motive
14   requirement. This instruction left no room for a Count Four
15   conviction based on a purely personal motive. We “presume
16   that juries understand and abide by a district court’s . . .
17   instructions.” United States v. Downing, 297 F.3d 52, 59
18   (2d Cir. 2002). Accordingly, there was no plain error in
19   the district court’s failure to provide sua sponte a special
20   verdict sheet.
21
22        [4] Hunter seeks vacatur of his Count Four conviction
23   and remand for a new trial, arguing spillover prejudice
24   arising from the evidence presented in support of Counts One
25   and Two. “A defendant bears an extremely heavy burden when
26   claiming prejudicial spillover.” United States v. Griffith,
27   284 F.3d 338, 351 (2d Cir. 2002). Although the district
28   court vacated Hunter’s convictions for Counts One and Two,


         1
            Even assuming a conflict, “[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. Ware, 577 F.3d 442, 447
     (2d Cir. 2009); see also Jackson v. Virginia, 443 U.S. 307,
     319 (1979); Payne, 591 F.3d at 60.
          Hunter argues that the government’s withholding of
     information precluded him from minimizing Clemons’s role in
     the enterprise. Hunter raised this argument for the first
     time in his reply brief, thereby waiving it. See JP Morgan
     Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d
     418, 428 (2d Cir. 2005). But even assuming that Hunter’s
     argument is properly before this Court, it lacks merit.
     Common sense dictates that enterprise members would feel
     threatened by a suspected cooperator working as a lieutenant
     in the enterprise for one year, three months, or merely one
     day.

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 1   much of the evidence presented in support of those counts
 2   was properly before the jury even in the absence of Counts
 3   One and Two. See United States v. Hamilton, 334 F.3d 170,
 4   185 (2d Cir. 2003) (rejecting a spillover prejudice argument
 5   in part because “most of the conduct involved in the 12 RICO
 6   predicate acts would have been admissible at trial in the
 7   absence of a RICO count”). The Count Four conviction
 8   required proof beyond a reasonable doubt of an enterprise
 9   and racketeering activity, and Federal Rule of Evidence
10   404(b) permits the admission of otherwise inadmissible
11   evidence to prove, inter alia, motive and intent. Moreover,
12   the jury’s determination that four of the predicate acts
13   were not proven indicates that the jury was not misguided by
14   prejudice. See United States v. Stewart, 433 F.3d 273, 310
15   (2d Cir. 2006); Hamilton, 334 F.3d at 183; United States v.
16   Casamento, 887 F.2d 1141, 1153 (2d Cir. 1989). Finally,
17   even assuming that the evidence in support of the attempted
18   murder of Allen Goines is substantially more inflammatory
19   than the evidence in support of the Clemons murder, this
20   factor is outweighed by the similarity of the predicate acts
21   to the Clemons murder and the strength of the government’s
22   evidence of the Clemons murder. See United States v. Jones,
23   482 F.3d 60, 78 (2d Cir. 2006) (“In analyzing a claim of
24   prejudicial spillover, we consider (1) whether the evidence
25   introduced in support of the vacated count was of such an
26   inflammatory nature that it would have tended to incite or
27   arouse the jury into convicting the defendant on the
28   remaining counts, (2) whether the dismissed count and the
29   remaining counts were similar, and (3) whether the
30   government’s evidence on the remaining counts was weak or
31   strong.” (internal quotation marks omitted)).
32
33        [5] Hunter seeks vacatur of his Count Four conviction
34   and remand for a new trial based on the district court’s
35   failure to identify Lisa Toney in the accomplice-witness
36   charge (or the informant-witness charge). Even assuming
37   that Hunter did not waive this argument, it does not
38   withstand plain error review. An accomplice-witness charge
39   is a “discretionary charge . . . not required in all cases,
40   but only in those where, by failing to give the charge, the
41   defendant suffered substantial prejudice.” United States v.
42   Slocum, 695 F.2d 650, 656 (2d Cir. 1982) (internal quotation
43   marks omitted). Hunter argues that he suffered substantial
44   prejudice because the explicit identification of Toney as an
45   accomplice-witness (or an informant-witness) would have
46   supported the personal motive for Hunter’s participation in


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 1   the Clemons murder. 2 But Toney’s alleged motive for
 2   complying with Thomas’s instructions in setting up the
 3   Clemons murder has nothing to do with Hunter’s motive for
 4   participating in that murder. Accordingly, we find no
 5   substantial prejudice--and no plain error--in the district
 6   court’s failure to identify Toney in the accomplice-witness
 7   charge (or the informant-witness charge).
 8
 9        We have considered all of Hunter’s contentions on this
10   appeal and have found them to be without merit. Accordingly,
11   the judgment of the district court is hereby AFFIRMED.
12
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16
17
18




         2
           Hunter seems to argue that he suffered substantial
     prejudice on the distinct ground that the district court
     failed to instruct the jury to approach Toney’s testimony
     with the appropriate level of scrutiny. However, Hunter
     does not challenge the veracity of Toney’s testimony; and
     the informant-witness charge given by the district court and
     the three summations delivered at the conclusion of the
     trial, Trial Tr. 2926, 2966, 3011-12, provided ample caution
     as to Toney’s testimony. See United States v. Bufalino, 683
     F.2d 639, 647-48 (2d Cir. 1982) (rejecting reversal based on
     an “arguably inadequate” accomplice-witness charge in part
     because the jury “could be counted on to use its common
     sense in evaluating the truth of [certain] testimony”).

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