Archive | RICO

Monday, June 26th, 2023

The Second Circuit holds that, despite the erroneous jury instructions defining the “crime of violence” required for a § 924(c) conviction — allowing the jury to convict the Petitioners based on predicate offenses that didn’t necessarily require the actual or threatened use of force — the Petitioners failed to show that the instructional errors “resulted in prejudice that would entitle them to the relief they [sought] under 28 U.S.C. § 2255.” Nardino Colotti, et al. v. United States, Nos. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON), __ F.4th ____ (2d Cir. June 21, 2023) (C.J.J.’s Leval, Parker, Menashi).


This is an appeal from a district court judgment denying the Petitioners’ motions, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct their convictions under 18 U.S.C. § 924(c).  The Circuit affirms the district court.

The Petitioners were convicted after a jury trial — conducted “in late 2005 and early 2006″ — on 14 out of 15 counts, including Count 13, which charged the Petitioners with using and carrying firearms during and in relation to a “crime of violence,” 18 U.S.C. § 924(c), which was predicated on the “offense charged in Count  One, racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (‘RICO’), 18 U.S.C. § 1962(c).” See Op. at 3-5.

The RICO offense, in turn, was “predicated on Racketeering Acts 4 and 5, which in turn  charged violations of N.Y. Penal Law § 155.40, the New York penal statute defining second degree …

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Categories: 2255, 924(c), crime of violence, divisible/indivisible statute, modified categorical approach, RICO

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Monday, November 23rd, 2020

Second Circuit affirms conviction of payday-loan lender on RICO and Truth in Lending Act (“TILA”) charges. United States v. Moseley, __F.3d__, No. 18-2003-cr, 2020 WL 6437737 (2d Cir. Nov. 3, 2020) (Circuit Judges: Kearse, Carney, Bianco).

In  United States v. Moseley, No.18-2003, 2020 WL 5523210 (2d Cir. Nov. 3,  2020) , the Second Circuit holds that the choice-of-law provisions in the defendant’s payday-loan agreements — which named  3 jurisdictions that don’t have usury laws — were unenforceable under New York law, so  the usury laws of New York applied in the case of loans to New York residents. And, here, the RICO counts were based on New York domiciled  borrowers . The agreements also didn’t sufficiently disclose the total payments the borrower would have to make on the loans, as required by TILA.

The loans

Richard Moseley operated a payday-loan business, between 2004 and 2014,  in which he “lent money to borrowers in New York and other states at interest rates exceeding —by many multiples—the maximum legal interest rates allowed in those states; in its loan documents, it failed to meet TILA disclosure requirements; and …

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Categories: due process, hearsay, RICO, Sixth Amendment

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Wednesday, August 19th, 2020

Circuit Reverses Convictions For Aiding And Abetting VICAR Murder For Insufficient Evidence

In United States v. Anastasio, the Circuit (Carney, joined by Jacobs and Pooler), reversed two convictions for aiding and abetting VICAR murder, 18 U.S.C. § 1959(a)(1), for insufficient evidence. Specifically, the Circuit held that Anastasio undertook no affirmative act that facilitated the murders; he had merely been in the company of the murderers, without offering any assistance, before and after (but not during) the shootings.

Anastasio was a member of the 10th Street Gang in Buffalo. Members of a rival gang shot and injured the brother of a 10th Street member, Delgado. Later that day, 10th Streeters, including Anastasio, beat someone they believed belonged to the rival gang. Still later that day, 10th Streeters, again including Anastasio, met at an apartment to discuss further retaliation. Delgado told those present of his plan to shoot at members of the rival gang and instructed everyone present to find guns. Several did …

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Categories: aiding and abetting, Batson, RICO

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Circuit Vacates LWOP Sentence Based On Inadequate Consideration Of Juvenile Offender’s Age

In United States v. Delgado, the Circuit (Pooler, joined by Jacobs and Carney) vacated a life sentence imposed on a 17-year-old convicted of two murders, on the ground that the district court had failed to give the requisite consideration to the defendant’s age, as required by Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Delgado was a gang member in Buffalo. A rival gang shot and injured Delgado’s brother. In retaliation, Delgado attacked members of the rival gang, but wound up shooting and killing two bystanders instead. He was 17 at the time. After a jury trial, Delgado was convicted of multiple offenses arising from his long-term gang membership, including RICO conspiracy (predicated in part on the murders), drug conspiracy, and § 924(c). The district court (Arcara, WDNY) sentenced him to life.

The Circuit vacated the life sentence. The …

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Categories: 3553(a), 924(c), Batson, bruton, RICO

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Wednesday, June 26th, 2019

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness

The Supreme Court held in United States v. Davis that the so-called “residual clause” of 18 U.S.C. 924(c)(3)(B) is void for vagueness. This means that the only way a crime can qualify as a “crime of violence” for purposes of Section 924(c) is under the “elements” (or “force”) clause of 18 U.S.C. 924(c)(A). That clause defines a “crime of violence” to mean “an offense that is a felony” and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

So what happens now? Here’s a quick overview:

  1. Davis means that the Second Circuit’s decision in United States v. Barrett, 903 F.3d 166 (2d Cir. 2018), which upheld the constitutionality of the residual clause, is no longer good law. And more specifically, the Supreme Court is likely to grant the pending petition for certiorari in Barrett, vacate that
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Categories: 924(c), Davis, Hobbs Act, RICO

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Categories: 924(c), Davis, Hobbs Act, RICO

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Thursday, March 9th, 2017

The Dismantling of the Holder Memo Begins

It looks like the work of dismantling the progress made under the Holder memo has begun.

Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…

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Categories: 922(g), 924(c), Hobbs Act, RICO

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Sunday, February 12th, 2012

Cain is Able

United States v. Cain, 09-0707-cr (2d Cir. January 31, 2012) (Newman, Lynch, CJJ, Restani, JCIT)

This is a case, oddly enough, about trees. Appellant David Cain, Jr., proprietor of David’s Tree Service, assisted by his brother, Chris Cain, a cousin, Jamie Soha, and others, was trying to corner the tree service and logging market in northwestern New York State. To get there, they engaged in acts of violence, extortion and even arson, and were convicted of substantive and conspiracy RICO counts and of other, related crimes.

All convictions were affirmed except for Chris Cain’s on the RICO counts. The circuit found that the district court’s “pattern” instruction was erroneous and, as to Chris Cain, the error, although not flagged below, was plain.

The RICO statute requires proof of a “pattern of racketeering activity” – at least two acts, the last of which occurred within ten years after the commission of …

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Categories: pattern requirement, plain error, RICO, Uncategorized

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Thursday, March 10th, 2011

Racket Club

United States v. Applins, No. 07-2193-cr (2d Cir. March 1, 2011) (Miner, Sack, Hall, CJJ)

This decision closes a hole in the Second Circuit’s RICO jurisprudence. The appellants, drug dealers who were members of something called the Elk Block gang, were convicted of RICO conspiracy under 18 U.S.C. § 1962(d) in the Northern District of New York. The trial judge gave confusing jury instructions as to whether, for RICO conspiracy, the existence of an enterprise was an element of the offense.

The defendants pursued this issue on appeal, and the circuit affirmed, holding that “the establishment of an enterprise is not an element of the RICO conspiracy offense.” In a footnote, the court brushed aside its past decisions that seemed to suggest otherwise, deeming the relevant language “dicta.”…

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Categories: enterprise, RICO, Uncategorized

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Saturday, April 10th, 2010

The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence …

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Categories: Crawford, enterprise, pattern, racketeering, RICO, Uncategorized

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Saturday, August 29th, 2009

Cap’n Crunched

United States v. Pizzonia, No. 07-4314-cr (2d Cir. August 19, 2009) (Calabresi, Straub, Raggi, CJJ)

Dominick Pizzonia, a one-time captain for the Gambino crime family, was convicted of a racketeering conspiracy and sentenced to fifteen years in prison. On appeal, he raised an unsuccessful statute of limitations claim.

The government filed the indictment against Pizzonia on May 26, 2005; since a five-year statute of limitations applied, the government had to prove that Pizzonia’s participation in the conspiracy extended past May 26, 2000.

Pizzonia’s indictment charged a broad pattern of racketeering activity encompassing the entire spectrum of Gambino malfeasance. It alleged specifically that the pattern “consisted of” seven specified predicates. The jury found that he participated in only two of them: a 1992 double-murder conspiracy and a 1994-96 gambling offense. It also concluded that these two seemingly distinct events were sufficiently related to constitute a racketeering “pattern.” Finally, although the predicates …

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Categories: RICO, statute of limitations, Uncategorized

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Saturday, September 6th, 2008

A Family Affair

United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)

Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts – including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted. The jury did not reach a verdict on a substantive RICO count, which the district court then dismissed on the ground that the government had failed to prove that Yannotti committed any predicate within the five-year statute of limitations. But the court did not dismiss the conspiracy count and, when it sentenced him, based its findings on conduct that the jury had not agreed that the government had proven. Yannotti received twenty years in prison, the …

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Categories: 1B1.2, expert witnesses, RICO, Uncategorized, wiretaps

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