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 so. Anastasio twice tried to find a gun, but was unsuccessful. First, he picked up a .44 caliber pistol (that appeared in poor condition, perhaps with a defective firing pin) that Delgado had brought to the apartment, but eventually surrendered the gun to another gang member, Harville. Second, Anastasio tried to repurchase a shotgun that he had recently sold, but was rebuffed. Ultimately, other 10th Streets left the apartment and shot at members of the rival gang, killing two bystanders. Anastasio stayed in the apartment. Harville, who participated in the attack, testified that the .44 caliber pistol malfunctioned and he was unable to fire any shots. When the 10th Streeters returned to the apartment, Anastasio, who was still there, expressed frustration at having been left behind, asking: “Why didn’t you let me go?”
A jury convicted Anastasio of multiple offenses, including two counts of aiding and abetting VICAR murder, § 1959(a)(1), and RICO conspiracy, 18 U.S.C. § 1962(d), with the special allegation that two of the predicates (the murders) were punishable by life, see 18 U.S.C. § 1963(a). The district court (Arcara, WDNY) denied Anastasio’s Rule 29 motion on the VICAR murder counts, relying primarily on Anastasio’s surrendering the .44 caliber pistol to Harville.
The Circuit reversed. The Circuit explained that federal aiding and abetting liability, under 18 U.S.C. § 2(a), has two elements: (i) an affirmative act in furtherance of the offense, and (ii) an intent to facilitate the offense’s commission. The evidence sufficed to support the mens rea element: Anastasio was present during discussion of the plan to retaliate, attempted to acquire a gun, and was upset when he was left behind. However, the evidence was insufficient to prove the actus reus. Although Anastasio was present at the apartment during the planning, “nothing in the record suggests that Anastasio spoke during—much less contributed to—this planning process. Nor has the government offered evidence that Anastasio’s mere presence at [the] apartment encouraged or otherwise influenced the Gang to commit the murders.” Anastasio was not present for the murders, and provided no other help: he did not supply any of the guns used, provide information about the rival gang’s location, serve as a lookout, transport any 10th Streeters to or from the murders, or help cover up the crime. Anastasio attempted to acquire the .44 caliber pistol and gave it to Harville, but this was not enough. Anastasio had not brought the pistol to the apartment, and his conduct had not impact on the gun’s availability for the murders—“the gun was always going to be available, and a Gang member (likely Harville) was always going to bring it to the ambush.” For largely the same reasons, the Circuit reached the same conclusion with respect to New York state-law aiding and abetting liability (necessary for the § 1963(a) enhanced statutory maximum).
The Circuit rejected several other claims:
(1) The evidence sufficed to support Anatasio’s RICO conspiracy conviction. The 10th Street Gang was a loosely organized group that sold drugs and engaged in murders, robberies, and other violence. Cooperating witnesses testified that Anastasio served as a lookout during drug deals, sold marijuana, and fought rival gangs. And his presence during the murder planning indicated his awareness of the gang’s general criminal objectives. For RICO conspiracy, the government was not required to prove that Anastasio engaged in (or intended to engage in) any specific acts of racketeering, as long as he “intended that the broad goals of the racketeering scheme be realized.”
(2) The district court did not commit clear error in crediting the prosecutor’s race-neutral reason for peremptorily striking a Hispanic venireperson (namely, that she did not follow the news because it was too ugly), so there was no Batson error.
(3) The district court did not abuse its discretion in denying Anastasio’s motion to sever. Although Anastasio was a less prominent gang member than his co-defendants, the evidence he argued was prejudicial (violent acts and drug deals in which he did not participate) would have been admissible against him at a separate trial to prove the nature and scope of the racketeering enterprise. The district court’s instruction to consider each defendant separately cured the risk of spillover prejudice.
The takeaways for practitioners are: (i) aiding and abetting liability requires that the affirmative act actually assist, even if only minimally, in the commission of the object crime—mere presence is insufficient; (ii) the affirmative act must assist the specific object crime charged, not a related crime.
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