Judge Chin’s opinion in United States v. Robert Sylvester Kelly, 2d Cir. No. 22-1481 (L) (Feb. 12, 2025), joined almost entirely by Judges Carney and Sullivan, affirms the singer R. Kelly’s conviction for RICO and Mann Act offenses, as well as his 30-year prison sentence and a restitution award of $300,668 to “Jane,” a minor whom Kelly infected with herpes after unprotected intercourse. Essentially the Government alleged, and the jury accepted, that over at least two decades, Kelly, with the help of a host of employees, hangers-on, and assistants, induced and coerced several women, including minors, to travel across state lines to engage in sex with him, even though he knew he had herpes, did not disclose this fact, refused to wear a condom, and infected at least two of the women.
The Panel rejects all of Kelly’s challenges – to the sufficiency of the evidence, the constitutionality of various state laws underlying the federal-law violations, the empaneling of biased jurors, the admission of Rule 404(b) material, and the restitution order. Most of the discussion is fact-specific and breaks no new ground, but a few points are worth noting.
First, the Panel rejects Kelly’s claim “that individuals in a RICO enterprise must have a fraudulent or illegal common purpose.” Op. 29. Although acknowledging that the Court said in 2004 that “for an association of individuals to constitute an enterprise, the individuals must share a common purpose to engage in a particular fraudulent course of conduct and work together to achieve such purpose,” First Capital Asset Management, Inc. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004), the Panel described that as “merely dicta” and held that despite Satinwood’s language, “an association-in-fact enterprise need not have an explicitly fraudulent or illegal common purpose to be cognizable as an enterprise under RICO.” Op. 31.
Second, the Panel held that the evidence sufficed to prove that Kelly violated N.Y. Penal Law § 120.20 – reckless endangerment in the second degree, a misdemeanor – the predicate crime for two of the racketeering act and several of the Mann Act convictions. A person violates this law “when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another.” Id.; see Op. 41-42.
Testimony and evidence showed that Kelly had long been infected with herpes; irregularly took the medication Valtrex; did not disclose the infection to the victims; did not use a condom when he had sex with the victims; and infected at least two of them with the virus.
Moreover, the jury “heard from experts at trial” that “herpes is a transmissible virus that is [] highly contagious . . . and stays in a person’s central nervous system forever, and can reactivate to cause outbreaks of blisters, ulcers, pustules, and vesicles, which can cause numbness and severe pain.” Op. 42. It can even, in rare instances, “lead to brain and central nervous system complications.” For instance, victim Jane’s “herpes symptoms were so severe at one point that she could not walk.” Op. 42.
Finally, Judge Sullivan dissents on a single point: The $300,000 in restitution awarded to minor victim Jane, the bulk of which (about $270,000) is to pay for a lifetime supply of the drug Valtrex to treat her herpes infection. Judge Sullivan would hold that the district court “abuse[d] its discretion” and “provide[d] Jane with an impermissible windfall” by “calculating [her] restitution based on a lifetime supply of the brand-name drug, Valtrex, rather than the significantly cheaper generic drug, valacyclovir.” Dissent 1 & 3.
Judge Sullivan agrees with Kelly that Jane “could use the restitution award to purchase the generic valacyclovir (a lifetime supply is only about $9,800) and then pocket the substantial difference . . . [of] more than $260,000 over the course of her lifetime.” Dissent 3-4. And Judge Sullivan emphasizes that “nothing in the record suggest a qualitative difference between Valtrex and the generic drug . . . .” Id. 2.
Judge Chin, joined by Judge Carney, disagree that Jane received a “windfall.” Op. 80. “Jane would not have had to purchase herpes medication if Kelly had not infected her with the virus.” “And . . . we are not aware of any authority requiring the victim to pursue the cheapest option to minimize a defendant’s restitution expenses.” “Moreover, the record indicates that both Jane and Kelly were being treated with Valtrex at the time.” Id.
Finally, the majority disputes Judge Sullivan’s claim of equivalence: “Although generics and brand-name drugs are often identical, companies aren’t required to show that the two versions are therapeutically equivalent, meaning that they don’t have to do tests to make sure that patients respond to these drugs the same way they do the brand-name version.” Op. 80 n. 13 (quotations and alternations omitted). Additionally, “there have also been repeated reports of generic drugs found to contain contaminants, including carcinogens, and reported difficulties faced by the FDA when attempting to inspect drug manufacturing facilities located overseas, as many generic manufacturers are.” Id.
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