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 grand larceny by extortion,” or alternatively conspiracy or attempt to violate to commit the state offense. Op. at 10.

“Act Four” charged the defendants “with three related offenses: substantive second degree grand larceny by extortion under N.Y. Penal Law §§ 155.05 & 155.40; attempted second degree grand larceny by extortion under N.Y. Penal Law §§ 110.00, 155.05, & 155.40; and conspiracy to commit second degree grand larceny by extortion under N.Y. Penal Law §§ 105.13, 155.05, & 155.40.” Op. at 6 (emphasis added). According to the indictment, Act Four was based on conduct ‘instilling [in two victims] a fear that the defendants would damage property and cause physical injury to some person in the future’ and ‘wrongfully tak[ing] and obtain[ing], and attempt[ing] to take and obtain, the property of’ those victims.” Op. at 7 (brackets in Opinion).

Act Five similarly charged all defendants with the same three New York criminal offenses as in Act Four and similarly alleged that any one of these offenses “alone constitutes the commission of Racketeering Act Five.” The conduct alleged was “instilling a fear [in the managers of an illegal gambling club called Soccer Fever] that the defendants would damage property and cause physical injury to some person in the future.” Op. at 7.

In their § 2255 petitions, the Petitioners argued that “substantive RICO did not qualify as a crime of violence.” Op at 4. And they argued that the “predicate acts of New York larceny by extortion” also don’t qualify as crimes of violence under 924(c). Op. at 10.

1. The erroneous jury instructions

The Circuit acknowledged that the trial court’s jury instructions, defining the crime of violence (“COV”) required for a § 924(c) conviction, “proved to be erroneous in light of subsequent Supreme Court decisions.” Op. at 32; id. at 5, 25.

“The [trial] court charged the jury that it could find a defendant guilty of Racketeering Acts Four and Five under Count One, which served as predicate for the § 924(c) charge … by finding beyond a reasonable doubt that he committed either” (i) a substantive offense of larceny by extortion, (ii) “an attempted extortion,” or (iii)  or “became a member of a conspiracy to commit the charged extortion.” Op. at 32.

But “intervening decisions of the Supreme Court have altered the test for determining whether an offense is a [COV] see United States v. Taylor, 142 S.Ct. 2015, 2021 (2022); United States v. Davis, 139 S.Ct. 2319, 2336 (2019)[.]” Op. at 4.  Conspiracy and attempt offenses don’t qualify as COV’s. Op. at 33 (under Davis, “a conspiracy offense cannot constitute a crime of violence because conspiracy can be accomplished solely by agreement without any use or threat of force”); id. (under Taylor, “the offense of attempt to commit that crime can be accomplished by taking steps that do not include the use or threat of force so long as they come sufficiently close to completion of the substantive offense.”). And “[w]hile the Supreme Court’s ruling in Taylor related to Hobbs Act robbery [18 U.S.C. § 1951(a)] and not to New York larceny by extortion, the same reasoning would bar satisfying the requirement of a crime of violence by attempted larceny by extortion.” Id.

In addition, the charge to the jury on the substantive offense was also erroneous because it allowed the jury to convict the Petitioners based on a “variation of New York larceny by extortion” that didn’t “necessarily require[] the actual or threatened use of force.” Op. at 5.   “[T]he  district court instructed the jury that it could convict a defendant of larceny by extortion if it found ‘that the defendant obtained property from another person . . . by instilling in the victim a fear that the defendant or a third person would cause physical injury to some person . . ., or cause damage to property. Because . . . larceny by threat of damage to property can be accomplished without use of force, the court’s charge erroneously allowed the jury to find the [COV] required for the § 924(c) conviction based on an offense that could be committed without use or threat of force.” Op. at 25 (emphasis in Opinion).

2. The Second Circuit concludes that the Petitioners didn’t show that the instructional errors “resulted in prejudice that would entitle [the Petitioners] to the relief they seek under 28 U.S.C. § 2255.”

The Circuit states that “an erroneous jury instruction does not per se entitle the  petitioners to relief under § 2255 if the error had no injurious effect on the verdict. ‘To determine whether a habeas petitioner was actually prejudiced or the error was harmless, ‘a reviewing court finding such [instructional] error should ask whether the flaw in the instructions ‘had substantial  and injurious effect or influence in determining the jury’s verdict.’’” Op. at 25-26 (quoting Stone v. United States, 37 F.4th 825, 829 (2d Cir. 2022), which quotes Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam)).

The Modified Categorical Approach: Although the Court would “ordinarily apply the categorical approach in determining whether a predicate offense qualifies as a [COV] under the elements clause … There is, however, an exception for divisible statutes.” Op. at 9 (underline added). “When a crime is defined with alternative  elements that are divisible,” the “modified categorical approach” applies, which allows the Court to consult a limited set of documents – “including the indictment, verdict form, and jury instructions – to determine which of the alternative branches of the statute’s prohibitions was the basis of the defendant’s conviction, then assessing whether the elements of that branch of the offense can be satisfied by conduct that would fall outside the definition of a [COV] provided by § 924(c)(3)(A).” Op. at 9 (underline added).

So, because both RICO and New York larceny by extortion can be committed in various ways, some of which require force while others do not, “the government cannot sustain the conviction under § 924(c) unless both the RICO offense under § 1962(c) and the New York extortion statute are divisible.” Op. at 10.

The Circuit, relying on its decision in United States v. Laurent, 34 F.3d 63 (2d Cir. 2022), held “that RICO is a divisible statute appropriate for use of the modified categorical approach.” Op. at 14.  Thus, “[a] conviction for a  substantive RICO offense will constitute a [COV] if the conviction was based on at least one predicate act that can be committed only by use of force.” Op at 14. “The modified categorical approach,” the Circuit stated, “requires us to turn to the charged predicate acts that constitute the pattern of racketeering — here, New York larceny by extortion — to determine whether that statute is divisible and, if so, whether any of the  predicate offenses a defendant was found to have committed qualifies as a [COV].” Op at 14-15.

The Circuit also concluded that New York Penal Law § 155.40 (second degree grand larceny by extortion) is divisible (Op. at 15-24) as between “[l]arceny by extortion through threat to damage property, N.Y. Penal Law § 155.40(2)(b)” — which “can be accomplished without the actual or threatened use of force”—   and larceny by extortion “through threat to cause physical injury to a person,  N.Y. Penal Law § 155.40(2)(a),” which “cannot be accomplished without a threatened use of force and therefore qualifies as a ‘crime of violence’” under § 924(c)(3)(A). Op. at 24.

“Thus, looking to the verdict and the record as a whole,” including the trial evidence, the Circuit concluded, “we have a ‘high degree of confidence that the jury . . . found’ that the petitioners’ § 924(c) convictions were predicated upon a New York larceny by extortion offense that involves threats of physical injury, N.Y. Penal Law § 155.40(2)(a), as opposed to threats of harm to property, N.Y. Penal Law § 155.40(2)(b), and that a properly instructed jury would have so found. “ Op. at 31.

Additionally, regarding the erroneous jury instructions that conspiracy and attempt offenses could constitute a COV, the Circuit found “‘ample evidence in the record that a properly instructed jury would have found, that the petitioners committed the completed offense of New York larceny by  extortion (as the predicate for Count Thirteen), as opposed to mere conspiracy or attempt to commit larceny by extortion[.]” Op. at 34 (quoting Stone, 37 F.4th at  832).

The Circuit thus held that “[w]hile it is true that the jury’s instructions contained two errors, the petitioners have not shown that either error resulted in prejudice that would entitle them to the relief they seek under 28 U.S.C. § 2255.” Op. at 24.

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