United States v. Desinor, No. 05-4500-cr (2d Cir. May 8, 2008) (Walker, Straub, Hall, CJJ)
This prosecution arose from a murderous rivalry between two drug gangs. One, the “Cream Team” (footnote 1 of the opinion, which explains the derivation of this name, is a must-read), was populated largely by the defendants on trial. The rival gang sold drugs out of a neighboring building, and was run by a dealer named Yanni. The appeal raised two issues of first impression relating to jury instructions in homicide cases. The court affirmed on those issues, but one defendant won a partial resentencing.
The trial evidence revealed that members of the Cream Team shot and killed Yanni’s cousin, and that this shooting was the culmination of a period of escalating acts of violence between the two groups. On the day of the shooting, heavily armed Cream Team members were looking for Yanni in his building, seeking to retaliate for something Yanni had done the day before. Two Cream Team members, with guns drawn, were walking down the stairs when Yanni’s cousin burst into the stairwell and reached for what they thought was a gun. They shot and killed him.
The defendants’ primary claim on appeal was that the district court erred in refusing to instruct the jury on self-defense. They pointed out that the two shooters both testified that they fired because they thought that the victim was reaching for a gun, and that, even if they were the initial aggressors, they withdrew from the conflict and attempted to communicate their withdrawal to the victim.
The circuit held that, on the facts of this case, the defendants were not entitled to an instruction on self-defense.
The court began by noting that “one cannot support a claim of self-defense by a self-generated necessity to kill.” Here, in disputably, the Cream Team defendants were the initial aggressors. The court ducked the question of whether they had provided sufficient evidence of withdrawal and communication, because it held that the defendants failed to establish that the “dangerous situation they had created by setting out to kill Yanni” had dissipated.
For this latter principle, the court turned to state court decisions for “guidance.” A survey of those cases revealed that “a defendant who initiates a violent crime, such as an armed robbery, that results in a fatal shooting may not claim self-defense absent a showing that, at the time the shooting occurred, the dangerous situation created by the initial crime had dissipated.”
Here, the court concluded, the defendants did not meet that burden. When they encountered Yanni’s cousin in the stairwell, they had “already created a dangerous situation, by virtue of their active participation in a conspiracy to commit murder.” There was no evidence that this dangerous situation had abated by the time the Cream Team crew encountered the victim. To the contrary, they were still looking for Yanni and still had their guns drawn.
The “Engaging In” Element
One count of conviction was under 21 U.S.C. § 848(e)(1)(A), which covers murder while “engaging in or working in furtherance” of a drug offense.
The district court charged the jury that the killing had to be “related in some meaningful way” to the drug conspiracy and that “at least one of the defendant’s purposes or motives . . . was because of the narcotics conspiracy.” The court also charged that the drug motive did not need to be the “sole purpose, or even the primary purpose” of the killing.
On appeal, the defendants argued that the court should have charged that the sole or primary purpose of the murder was drug-related. The circuit disagreed. “[T]he government need only prove beyond a reasonable doubt that one motive for the killing . . . was related to the drug conspiracy.” (emphasis in original). The existence of other motives does not affect the government’s ability to satisfy the “engaging in” element. All that is required is that there be a “substantive connection” between the defendant’s role in the murder and his participation in the drug conspiracy.
For these same reasons, the court also rejected a sufficiency challenge as to this element. There was “ample evidence” that the plan to attack Yanni, and the resulting murder of his cousin, were related to the two gangs’ ongoing drug rivalry.
The 924(c) Sentence
One defendant, Wilner Desinor, remained outside the building, armed, during the shooting. He was convicted under 18 U.S.C. § 924(c), but received a ten-year consecutive sentence, instead of the default five, for discharging his gun.
The circuit reversed because there was no finding, either by the judge or the jury, that Desinor had actually discharged his gun. To the contrary, the judge expressly charged the jury that it did not need to make this finding in order to convict under § 924(c).
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