USA v. Young, No. 07-2729 (2d Cir. 2009)

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07-2729-cr USA v. Young 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: May 12, 2009 Decided: October 8, 2009) Docket No. 07-2729-cr - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.- 07-2729-cr LAVAL FARMER, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x 26 27 28 29 Before: JACOBS, Chief Judge, WALKER and LEVAL, Circuit Judges. Defendant-Appellant, Laval Farmer, appeals from a June 30 22, 2007 judgment of conviction entered in the United States 31 District Court for the Eastern District of New York (Platt, 32 J.). 33 murder, and conspiracy to assault with a dangerous weapon, 34 in violation of the Violent Crimes in Aid of Racketeering 35 statute, 18 U.S.C. § 1959(a), and of related firearms Farmer was convicted by a jury of murder, attempted 1 offenses under 18 U.S.C. § 924(c). 2 argument that there was insufficient evidence to sustain the 3 convictions, but we conclude that he was denied due process 4 by the prosecutors gratuitous exploitation of his 5 prejudicial nickname, Murder. 6 entitled to a new trial for the attempted murder of Jacquel 7 Patterson, and the related firearms offenses. 8 Farmer s convictions for conspiracy to assault with a 9 dangerous weapon and the murder of Jose White, because the We reject Farmer s As a result, Farmer is We affirm 10 strength of the evidence precludes finding substantial 11 prejudice. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Affirmed in part, vacated in part, and remanded. JEREMY G. EPSTEIN (Seth M. Kean, Grace Lee, Rebecca Boon, Of Counsel, on the brief), Shearman & Sterling LLP, New York, NY, for Defendant-Appellant. ILENE JAROSLAW, Assistant United States Attorney (Peter A. Norling, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY , for Appellee. DENNIS JACOBS, Chief Judge: Laval Farmer was convicted by a jury in the United 30 States District Court for the Eastern District of New York 31 (Platt, J.) of murdering Jose Angel White and attempting to 2 1 murder Jacquel Patterson for the purpose of . . . 2 maintaining or increasing [Farmer s] position within the 3 Bloods street gang, 18 U.S.C. § 1959(a), as well as 4 conspiring to assault with a dangerous weapon and 5 discharging firearms during the murder and the attempted 6 murder. 7 Farmer s friends and fellow Bloods knew him by the nickname 8 Murder, an appellation that Farmer had acquired years 9 before and that had little, if any, relevance to any 10 11 At trial, the government elicited testimony that contested issue. Farmer s nickname, which would be problematical and 12 suggestive in any case involving violent crime, posed a 13 heightened risk of prejudice because the crimes charged 14 included murder and attempted murder. 15 the use of his nickname in the indictment, and he offered to 16 concede identification to avoid its use at trial. 17 government declined Farmer s offer, and the district court 18 admitted the name. 19 nickname promptly, repeatedly, and in ways calculated to 20 intensify the prejudice. 21 22 Farmer objected to But the Thereafter, the prosecution used the When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, 3 1 violence, or depravity, the potential for prejudice is 2 obvious. 3 objection, a trial court should consider seriously whether 4 the probative value is substantially outweighed by any 5 danger of unfair prejudice, Fed. R. Evid. 403, and whether 6 introduction of the nickname is truly needed to identify the 7 defendant, connect him with the crime, or prove some other 8 matter of significance. 9 nickname should not be used in a manner beyond the scope of Before receiving such evidence over a defendant s Even so, a potentially prejudicial 10 its proper admission that invites unfair prejudice. 11 Rule of Evidence 404(a) provides (with exceptions not 12 applicable here) that [e]vidence of a person s character or 13 a trait of character is not admissible for the purpose of 14 proving action in conformity therewith on a particular 15 occasion. 16 and the legal obligation of the court, to ensure that this 17 rule is observed. 18 Federal It is the ethical obligation of the prosecutor, In this case, the prosecutors, in their addresses to 19 the jury, invited prejudice by repeatedly emphasizing 20 Farmer s nickname in a manner designed to suggest that he 21 was known by his associates as a murderer and that he acted 22 in accordance with that propensity in carrying out the acts 4 1 charged in the indictment. 2 entitles Farmer to a new trial for the attempted murder of 3 Patterson and the related firearms offenses. 4 affirm Farmer s convictions for murdering Jose White, 5 discharging a firearm during that offense, and conspiring to 6 assault, because the evidence so overwhelmingly established 7 his guilt respecting those offenses as to nullify any 8 prejudice resulting from the inappropriate argument to the 9 jury. 10 This abuse of Farmer s nickname However, we Farmer also argues that his killing of White, a child 11 on a bicycle wearing the wrong color clothing, was so 12 obviously a mistake that no other intent can be reasonably 13 ascribed to the act, and that his attempted killing of 14 Patterson, another Blood, was so obviously motivated by 15 personal animus that this act likewise cannot reasonably be 16 attributed to an intent to increase Farmer s status as a 17 Blood--an element of the offense. 18 government introduced sufficient evidence that the murder 19 and attempted murder were committed for the purpose of 20 . . . maintaining or increasing [Farmer s] position in the 21 Bloods. 22 governance and code, the conversations and conduct of Farmer 18 U.S.C. § 1959(a). We conclude that the This was shown by the Bloods 5 1 and other Bloods at and around the time of the crimes, and 2 Farmer s self-promoting boasts. 3 Finally, we conclude that Farmer is not entitled to 4 relief on the ground that White s relatives wore T-shirts in 5 the courtroom displaying White s photograph. 6 the judgment of the district court is affirmed in part, 7 vacated in part, and remanded. Accordingly, 8 9 10 BACKGROUND A. 11 The Government s Case Farmer was convicted for the murder of fourteen-year- 12 old Jose Angel White in Roosevelt, New York on September 23, 13 2001, and the attempted murder of Jacquel Patterson in 14 Wilkes-Barre, Pennsylvania on July 15, 2002. 15 charged that these acts came within the scope of § 1959(a) 16 because Farmer committed them for the purpose of . . . 17 maintaining or increasing his status in the Bloods street 18 gang, which was a racketeering enterprise. 19 1959(a). 20 1. 21 22 The indictment 18 U.S.C. § The Bloods Farmer was a member of the Velt Gangsta Lanes ( VGL ) of Roosevelt, New York, on Long Island, a subgroup of the 6 1 larger Bloods gang. 2 Bloods subgroups on Long Island. 3 The VGL was associated with other Aspiring members of the Bloods were required to commit 4 acts of violence to be eligible for membership. 5 were initiated by being blessed in (vouched for by 6 existing members) or jumped in (beaten by five Bloods for 7 55 seconds). 8 Members Bloods operated under a code of loyalty that required 9 members to take on their associates problems as their own. 10 Disagreements and grievances were resolved through violence, 11 including stabbing or shooting. 12 promoted gang banging, or beating people up, to represent 13 the neighborhood. The leadership of the VGL 14 A member gain[ed] status within the gang by 15 put[ting] in work, which entailed committing acts of 16 violence, including attacking rival gangs. 17 denoted by titles, which ranged upward from baby gangsta 18 to original gangsta, or OG. 19 Status was During 2000 and 2001, VGL members met regularly at 20 Centennial Park and in an abandoned house on Hanson Place, 21 both in Roosevelt, New York. 22 colors, had gang tattoos, and flashed signs to fellow Gang members wore specific 7 1 Bloods. 2 2. Murder of Jose Angel White 3 On the evening of Saturday, September 22, 2001, VGL 4 members who gathered at Centennial Park learned that two VGL 5 members (Roach and Shoke) had been hit by a car and beaten 6 with baseball bats by members of the rival Crips gang. 7 VGL members discussed retaliation and dispersed looking for 8 revenge. 9 The Later that evening, Farmer attended a party in Glen 10 Cove, New York with fellow Blood Kashawn Jackson. 11 Farmer spoke with Jackson and Gregory Key, another Blood, 12 about the attack on Roach and Shoke. 13 knew who did it, and the three agreed to [t]ake a ride out 14 to Roosevelt, see the guy who did it. 15 Melissa Petrizzo, the girlfriend of a Blood, to pick them up 16 in front of a housing project in Glen Cove. 17 into Petrizzo s car, Farmer asked Key if he had a burner 18 (a gun); Key assured him that he did. There, Farmer said that he Jackson arranged for Before getting 19 Once in Roosevelt, the group stopped near a convenience 20 store where Farmer thought the offending Crips might be, but 21 Farmer and Key did not find them inside. 22 back to the car, Farmer asked Key whether he could carry the 8 As the two walked 1 gun. 2 pay for it. 1 3 Key responded, yeah, but if you use it, you have to Farmer took the gun from Key. Back in the car, Key asked Farmer where a certain Crip 4 lived. 5 mother to be home. 6 house anyway, because he wanted to increase respect for the 7 Bloods and because he needed to repair his status within the 8 gang after having undergone drug rehabilitation in Virginia. 9 Farmer said he knew, but expected only the Crip s Key suggested that they shoot up the Petrizzo objected and kept driving, until Farmer saw 10 two boys on bicycles, one of them dressed in all blue 11 (i.e., color-coded as a Crip). 12 there they go right there ; directed Petrizzo to pull over 13 and turn off the lights; and then got out of the car, took a 14 few steps, and fired three shots at the two boys from a 15 distance of approximately five feet. 16 the car, dropped the gun at Key s feet, and told Petrizzo to 17 drive back to Glen Cove. 18 Farmer pointed and said, Farmer got back into As Petrizzo drove away, an ambulance passed going in 19 the other direction. 20 those crabs (Bloods slang for Crips). Farmer excitedly proclaimed, I got 1 Petrizzo dubiously Key testified that the gun would be too risky to own if used to kill someone and that he would need to replace it if that happened. 9 1 observed that the victim looked like a little boy, but 2 Farmer responded, [t]hat wasn t a little boy. 3 it was. 4 I knew who Later that afternoon, Farmer visited Petrizzo and her 5 Blood boyfriend, boasted that I got a body, and confirmed 6 to Petrizzo that the victim had died. 7 discovered that he had killed Jose White, a popular 8 fourteen-year-old boy who was not a Crip. 9 shooting, Farmer felt like his name may come up, so he had Farmer eventually After the 10 to get out of town. 11 12 13 14 3. Farmer s Move from New York and Attempted Murder of Jacquel Patterson 15 shooting, Farmer moved to Wilkes-Barre, Pennsylvania, where 16 he associated with fellow Bloods Damion Russell and Jacquel 17 Patterson. 18 Bloods who had enhanced his status living in California and 19 assumed leadership of the VGL when he returned to New York. 20 Russell imposed discipline within VGL ranks and imported 21 west-coast traditions. In December 2001, three months after the White Russell was a high-ranking OG member of the 22 Farmer told Russell that he had been driving around 23 with Key, Jackson, and Petrizzo looking for any Crip he 24 could see, and boasted that he had avenged the attack on 10 1 the Bloods by shooting a Crips. 2 Farmer go back to Glen Cove to make sure the gun was 3 destroyed, which Farmer did in December 2001. 4 Russell suggested that In Wilkes-Barre, Farmer and his girlfriend Stacey moved 5 in with Russell, then moved out a few weeks later to live 6 with one of Russell s friends, Khasan Dancy, who had a 7 larger house. 8 also living in the house when Farmer moved in. 9 Patterson, and Dancy sold crack together. 10 Jacquel Patterson and his girlfriend were Farmer, Farmer s relationship with Patterson developed into 11 hostility. 12 as soft and weak. 13 into a bar fight with men from Philadelphia, Farmer stabbed 14 one of the Philadelphia men to help out, and became angry 15 when Dancy and Patterson did not back him up or show 16 appreciation. 17 VGL was an illegitimate and inferior Bloods set, to which 18 Farmer and Russell took offense. 19 Russell testified that Farmer viewed Patterson One day, when Dancy and Patterson got Worse, Patterson expressed the view that the In July 2002, Farmer and Patterson bought narcotics 20 from a man named Udi, whom Farmer greeted with the Bloods 21 salute. 22 set, Farmer objected, Udi drew a gun, and Farmer was forced When Udi brushed off the salute and mocked the VGL 11 1 to stand down. 2 Furious, Farmer visited Patterson s house, punched cabinets, 3 argued, and discharged his gun. 4 house, Farmer called Russell, demanded that he identify 5 himself as a member of the VGL, and told him that he was 6 sick of [Patterson], that he can t take it no more, and that 7 he was about to give it to [him]. 8 9 Patterson gloated at Farmer s humiliation. After leaving Patterson s Farmer and Russell agreed to teach Patterson a lesson and again visited Patterson s house. While Russell waited 10 in the front doorway of the home, Farmer and Patterson 11 walked to Patterson s bedroom. 12 bedroom, Patterson s girlfriend, Esther Ross, heard the 13 rapid firing of seven to eight gunshots. 14 fussilade, Ross heard Patterson apologize repeatedly and 15 plead for his life. 16 heard two more shots. 17 his body, legs, arms, and face, but survived. 18 After they entered the During the After Patterson stopped pleading, Ross Patterson suffered gunshot wounds to After the shooting, Farmer recounted to Russell that he 19 followed Patterson into the room; that Patterson moved 20 toward the bed, urging Farmer to hold on ; that Farmer 21 started shooting, while Patterson apologized repeatedly; 22 that when Farmer stopped firing, he found a 9 millimeter 12 1 pistol under the mattress that Patterson had been 2 approaching; and that Farmer retrieved the pistol and used 3 it to shoot Patterson in the face. 4 money and arranged for him to flee to New York. 5 4. 6 Russell gave Farmer Farmer s Arrest and Post-Arrest Statements Farmer was arrested the day he arrived back in Nassau 7 County, July 16, 2002. 8 Farmer, he fled by car, was pulled over, and fled on foot 9 into a house, where he was arrested. When the police moved in to arrest During the arrest, a 10 second group of officers found a 9 millimeter pistol in the 11 car. 12 arrived from Virginia, where he had been living with his 13 girlfriend Stacey and doing construction work for the past 14 three or four months, 2 that he did not shoot anybody in 15 Pennsylvania, that he had no role in the White murder, and 16 that he did not know whose pistol was in the car. 17 Farmer told the Nassau County police that he had just On October 31, 2002, Farmer pleaded guilty in state 18 court to possession of the 9 millimeter found in his car at 19 the time of his arrest, which was identified as one of the 20 weapons used in the Patterson shooting. 2 Stacey testified that she never lived in Virginia, and that she and Farmer were living in Wilkes-Barre in the months before his arrest. 13 1 2 B. The Indictment and Trial Farmer was charged in a superseding indictment with: 3 conspiracy to assault with a dangerous weapon in aid of 4 racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count 5 One); murder in aid of racketeering, in violation of 18 6 U.S.C. § 1959(a)(1) (Count Two); use of a firearm in 7 connection with murder in aid of racketeering, in violation 8 of 18 U.S.C. § 924(c) (Count Three); attempted murder in aid 9 of racketeering, in violation of 18 U.S.C. § 1959(a)(1) 10 (Count Four); and use of firearms in connection with 11 attempted murder in aid of racketeering, in violation of 18 12 U.S.C. § 924(c) (Counts Five and Six). 13 The two-week jury trial started February 7, 2006 and 14 ended February 22, 2006. 15 from numerous lay and law enforcement witnesses. 16 testified, pursuant to a cooperation agreement, about 17 driving the car on the night of White s murder, the sequence 18 of events leading up to the crime, and Farmer s inculpatory 19 admissions thereafter. 20 cooperation agreements: Key, who was in the car with Farmer 21 on the night of White s murder (and who supplied the gun); 22 Russell, whom Farmer associated with in Wilkes-Barre; and The government elicited testimony Petrizzo Three Bloods testified pursuant to 14 1 Zanne Brown, who was a friend of White and who attended the 2 meeting at Centennial Park on the night of his murder. 3 Kahiem Seawright, the friend bicycling with White the 4 night he was murdered, testified to seeing a car pull up and 5 turn off its lights before a man wearing a hooded sweatshirt 6 came out, pulled out a gun, and shot White. 3 7 Other government witnesses included investigating 8 officers from Nassau County and Wilkes-Barre, emergency 9 services workers, and a ballistics expert. 10 Farmer called two witnesses. Special Agent James 11 Langtry was questioned about notes from his interview with 12 Key reflecting that Key fired the first shots at White. 13 Farmer s wife, Stacey Farmer, testified about Patterson s 14 jealousy of Farmer s interactions with Patterson s 15 girlfriend--testimony evidently intended to inject a sexual 16 motive into the conflict between Farmer and Patterson, and 17 thereby rebut that Farmer s purpose was to increase his 18 status in the Bloods. 19 20 Farmer moved pre-trial to strike references to his nickname Murder from the indictment. 3 The district court Key testified that Farmer was wearing a hooded sweatshirt when he committed the murder. 15 1 denied the motion, ruling that if the government s 2 witnesses and one or more material witnesses have identified 3 him to provide a nickname for the name Murder or what have 4 you, they are entitled to use that name in the [i]ndictment 5 for that limited purpose. 6 keep the nickname in the indictment, the government would be 7 required to elicit trial testimony from witnesses who knew 8 Farmer by that name. 9 avoid referring to him as Murder in its questions and that The court explained that, to Farmer then asked that the government 10 it avoid eliciting testimony in which witnesses might call 11 him Murder. 12 defendant on trial, that identity was not at issue, and that 13 he would waive any identification requirement to avoid 14 prejudice from use of his nickname. 15 Farmer stressed that he was the only The district court initially indicated that it would 16 consider precluding testimony mentioning the name Murder, 17 but accommodated the government s protest and ruled that 18 [i]f the witness knows this man by the name of Murder he 19 can so testify. 20 At trial, several government witnesses testified to 21 knowing Farmer as Murder and used the nickname repeatedly 22 in their testimony. Similarly, the government used the name 16 1 in its questions and dozens of times in argument to the 2 jury. 3 On February 22, 2006, Farmer was convicted on all 4 counts. 5 C. 6 Sentencing On June 20, 2007, Farmer was sentenced principally to 7 two terms of life imprisonment for the murder and attempted 8 murder counts. 9 years imprisonment on the conspiracy count and consecutive Farmer was also sentenced to a term of three 10 terms of 25 years imprisonment for the firearms offenses 11 charged in Counts Three, Five, and Six. 4 12 13 DISCUSSION 14 I 15 Farmer challenges the sufficiency of the government s 16 evidence. 17 could have found the essential elements of the crime beyond We must affirm if any rational trier of fact 4 The judgment of conviction and sentencing transcript do not specify whether Farmer s sentences on Counts One, Two, and Four are to run consecutively or concurrently. In the absence of an explicit statement from the district court (or a congressional mandate) the sentences on those counts are to run concurrently. See 18 U.S.C. § 3584(a) ( Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. ). 17 1 a reasonable doubt. 2 183, 187 (2d Cir. 2005) (quoting Jackson v. Virginia, 443 3 U.S. 307, 319 (1979)). 4 most favorable to the government, drawing all reasonable 5 inferences in its favor. 6 438, 459 (2d Cir. 2004). 7 A. 8 9 United States v. MacPherson, 424 F.3d We review the evidence in the light United States v. Gaskin, 364 F.3d VICAR Statute Farmer was convicted on three counts of violating the Violent Crimes in Aid of Racketeering ( VICAR ) statute, 18 10 U.S.C. § 1959(a), which provides, in relevant part: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Whoever . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished-(1) for murder, by death or life imprisonment, or a fine under this title, or both; * * * (6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of under [sic.] this title, or both. 18 1 18 U.S.C. § 1959(a)(emphasis added). 2 government failed to prove beyond a reasonable doubt that 3 his purpose in shooting White and Patterson was 4 maintaining or increasing position in the Bloods, id., the 5 enterprise identified in the indictment. 6 Farmer argues that the Although section 1959(a) does not define the phrase 7 for the purpose of . . . maintaining or increasing position 8 in an enterprise, we interpret that phrase by its plain 9 terms, giving the ordinary meaning to its terms. United 10 States v. Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001) (internal 11 citation omitted). 12 preserve from failure or decline or to sustain against 13 opposition or danger, WEBSTER S THIRD NEW INTERNATIONAL 14 DICTIONARY 1362 (1993), and increase as to become greater 15 in some respect (listing as examples, size, value, power, 16 authority, reputation and wealth). 17 section 1959 encompasses violent crimes intended to 18 preserve the defendant s position in the enterprise or to 19 enhance his reputation and wealth within that enterprise. 20 Id. (emphases omitted). Webster s defines maintain as to Id. Accordingly, 21 Dhinsa broadly interpreted the motive requirement, 22 and reject[ed] any suggestion that the for the purpose 19 1 of element requires the government to prove that 2 maintaining or increasing position in the . . . enterprise 3 was the defendant s sole or principal motive. 4 (quoting United States v. Concepcion, 983 F.2d 369, 381 (2d 5 Cir. 1992)). 6 jury could properly infer that the defendant committed his 7 violent crime because he knew it was expected of him by 8 reason of his membership in the enterprise or that he 9 committed it in furtherance of that membership. Id. [T]he motive requirement is satisfied if the Id. 10 (quoting Concepcion, 983 F.2d at 381); see also United 11 States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir. 2003). 12 Concepcion, which considered whether a defendant could 13 be liable under § 1959 for shooting someone other than the 14 intended victim, reject[ed] the suggestion that the 15 government must prove that the victim of the violence was 16 the defendant s intended target, and applied the well 17 established principle that a defendant who planned to 18 murder one person and, in so attempting, killed another is 19 guilty of the murder of the unplanned victim. 20 381. 21 22 23 24 983 F.2d at We concluded in Concepcion that It was sufficient for the government to prove that [the defendant], as a member of a[n] . . . enterprise engaged in racketeering activity, set out to commit a 20 1 2 3 4 5 6 7 8 proscribed act of violence in order to maintain or increase his position in the enterprise, and that, in the course of so doing, he committed that act against a person who got in his way. Id. at 382. For the reasons that follow, we conclude that Farmer s sufficiency challenge is foreclosed by these precedents. 9 10 11 12 B. Conspiracy to Assault Rival Gang Members with Dangerous Weapons (Count One) 13 evidence of a conspiracy to use dangerous weapons on the 14 night that White was murdered. 15 that he set out with Key and Jackson looking to beat down 16 a Crip, he asserts that his fellow Bloods did not anticipate 17 using dangerous weapons in the attack. 18 Farmer argues that the government introduced no Although Farmer concedes The government established that on the night of White s 19 murder, Farmer told Key that he knew who [attacked their 20 fellow VGL members], and that the men agreed to [t]ake a 21 ride out to Roosevelt, [to] see the guy who did it. 22 verb see is surely a euphemism. 23 getting into the car, Farmer confirmed that Key had a gun, 24 and the two men entered a corner store, with the gun, 25 looking for Crips to assault. 26 In any event, before As they left, Farmer borrowed Key s gun, and Key 21 The 1 stipulated that Farmer would have to replace it if he used 2 it. 3 to shoot up a Crip s house; Farmer instead used the gun to 4 kill White. 5 Upon returning to the car, Key suggested using the gun Farmer focuses on Key s testimony that Key brought the 6 gun for protection. 7 protection and in anticipation of assaulting a Crip if the 8 need or opportunity presented itself. 9 apparent that Key contemplated Farmer s use of the gun, as 10 evidenced by his warning that Farmer would have to replace 11 it if he did. 12 the jury to conclude that Key and Farmer conspired to 13 assault Crips using Key s gun (a dangerous weapon). 14 15 16 17 C. Murder of Jose White and Discharge of a Firearm During the Offense (Counts Two and Three) 18 sufficient evidence to satisfy the VICAR statute s position- 19 related motivation element as to the murder of Jose White. 20 However, the government introduced substantial evidence that 21 the Bloods deemed an attack against one Blood to be an 22 attack against all, and that Bloods could rise within the 23 gang by defending their peers and committing acts of 24 violence against rival gangs. But Key could have brought the gun for Moreover, it is Based on this evidence, it was reasonable for Farmer argues that the government failed to adduce By shooting White--whom 22 1 Farmer believed to be one of the Crips who had attacked 2 Roach and Shoke--Farmer conformed to the expectations of the 3 Bloods enterprise. 4 crime to his fellow Bloods in the days and months that 5 followed. 6 that [Farmer] committed his violent crime because he knew 7 it was expected of him by reason of his membership in the 8 enterprise or that he committed it in furtherance of that 9 membership. 10 11 An exultant Farmer boasted about the A reasonable jury could infer from these facts Dhinsa, 243 F.3d at 671 (quoting Concepcion, 983 F.2d at 381). Farmer argues that the government s theory--that he and 12 two friends set off on their own to avenge the attack on 13 Roach and Shoke--was inconsistent with the depiction of the 14 Bloods as a well-organized hierarchy, in which authorization 15 to retaliate would come from superiors. 16 evidence that such authorization was required. 17 contrary, the evidence showed that Bloods were expected to 18 aid one another without prompting. 19 members jointly agreed to seek revenge at the meeting in 20 Centennial Park on the night of the murder; from that, the 23 But Farmer cites no To the Moreover, the VGL 1 2 jury could infer that the attacks were authorized. 5 Farmer also argues that killing an innocent fourteen- 3 year-old could not serve the interest of the Bloods, and 4 that his move to Pennsylvania after the crime was evidence 5 that the gang did not condone his actions. 6 Farmer cites United States v. Bruno, 383 F.3d 65, 82-86 (2d 7 Cir. 2004), and United States v. D Angelo, No. 02-cr- 8 399(JG), 2004 WL 315237, at *1-14 (E.D.N.Y. Feb. 18, 2004), 9 decisions vacating VICAR convictions because of evidence In support, 10 that the killings were against the interests of the 11 defendants enterprises. 12 However, the question is not whether Farmer s position 13 in the Bloods was advanced in fact by the murder he 14 committed, but whether his purpose in committing the murder 15 was to benefit his position. 16 defendant s intent to increase his position in an enterprise 17 can be transferred to an accidental killing. 18 381-82. 19 intended to kill a Crip (and initially believed he had), and 20 that at least part of his purpose in doing so was to raise We held in Concepcion that a 983 F.2d at In this case, there was ample evidence that Farmer 5 Zanne Brown, a trial witness who attended the meeting in Centennial Park, testified that he went out that night and fired shots at Crips. 24 1 his status in the Bloods. 2 Farmer contended at oral argument that notwithstanding 3 Concepcion, the position-related motivation element was not 4 satisfied because the killing was so obviously a mistake 5 that it would be irrational to attribute it to his 6 membership in the Bloods. 7 Farmer shot a teenager wearing a Crip color, where Crips 8 might be found. 9 But the evidence showed that The blunder does not alter the intent. As to Bruno and D Angelo, neither decision controls 10 this case because the shootings in those cases did not 11 involve mistaken identity. 12 D Angelo intended to shoot (and did shoot) people whose 13 killing could not have enhanced the defendants status. 14 Bruno, 383 F.3d at 82-86; D Angelo, 2004 WL 315237, at *1- 15 14. 16 government s evidence satisfied the requirement of the VICAR 17 statute that, in killing White, Farmer acted for the purpose 18 of maintaining or increasing his position in a racketeering 19 enterprise. 20 21 22 23 D. Attempted Murder of Jacquel Patterson and Discharge of Firearms During the Offense (Counts Four, Five, and Six) 24 that he shot Patterson to enhance his position in the The defendants in Bruno and See For all of these reasons, we conclude that the Farmer also challenges the sufficiency of the evidence 25 1 Bloods. 2 shooting presents a closer question. Although we reject Farmer s argument, the Patterson 3 The government argues that Farmer s conflict with 4 Patterson stemmed from Patterson s lack of respect for the 5 VGL, and from Patterson s gloating when Farmer was 6 humiliated by Udi during a drug transaction. 7 posits that Farmer grew tired of these insults and that he 8 shot Patterson to defend the VGL, to repair his reputation 9 after the accidental killing of White, and to further his 10 standing within the set--which is why Farmer took Russell 11 with him as a witness. 12 The government As Farmer points out, the indictment charged Farmer 13 with attempting to murder Patterson to increase his status 14 in the Bloods: the government did not charge Farmer with 15 acting to enhance his position in the VGL. 16 that there was no evidence that shooting Patterson could 17 enhance his standing in the Bloods because an intra-gang 18 shooting would not benefit the larger Bloods enterprise. 19 Farmer points to evidence that Bloods subgroups were often 20 closely allied, and that Bloods were expected to defend--not 21 shoot--one another. 22 Farmer argues However, the jury was free to credit testimony that 26 1 members of the Bloods rose in rank within a given set, that 2 actions on behalf of a set could lead to increased status, 3 and that Farmer believed shooting Patterson to defend the 4 VGL could thus enhance his status within the larger Bloods 5 enterprise, the identity of his victim notwithstanding. 6 Second, Farmer argues that the Patterson shooting was a 7 personal matter, the culmination of months of increasing 8 rancor unconnected to Farmer s standing or membership in the 9 Bloods. However, the government introduced evidence that 10 Farmer s disagreement with Patterson concerned (at least in 11 part) the honor of the VGL set, and that Farmer was enraged 12 by Patterson s contempt for his subgroup. 13 was not required to prove that Farmer s sole or principal 14 motive was maintaining or increasing his position, 15 Dhinsa, 243 F.3d at 671 (internal quotation marks omitted), 16 so long as it proved that enhancement of status was among 17 his purposes. 18 The government The government met that burden. In sum, we conclude that there was sufficient evidence 19 to sustain the jury s verdict as to all counts, and Farmer s 20 sufficiency challenge is denied. 21 22 II 27 1 Farmer challenges the repeated use of his nickname 2 Murder in the government s presentation of evidence and 3 argument to the jury. 4 Farmer moved pre-trial to strike his nickname from the 5 indictment. 6 explaining that the government was entitled to include the 7 name if it elicited testimony that witnesses knew Farmer as 8 Murder. 9 witnesses refer to him as the defendant. The district court denied the request, Farmer then asked that the government and its The government 10 opposed the request , and the district court sided with the 11 government. 12 Murder throughout the murder trial, with a lot of arch 13 emphasis and many facetious asides. 14 It therefore happened that Farmer was called For example, in the fourth sentence of her opening 15 statement, the first prosecutor stated that Laval Farmer, 16 known to everyone by his gangster name as Murder, murdered 17 ninth grader Jose White in cold blood. 18 describing the night that White was killed, she explained 19 that [i]n gang life, if members of another gang mess up 20 members of your gang, the rule is that you retaliate. 21 Murder decided that it was time to take out a Crip . . . . 22 Murder was on the warpath. Moments later, So, Referring to Farmer s shooting 28 1 of Patterson, the prosecutor argued that as you might 2 imagine from what happened eight or nine months before, it 3 wasn t Murder s way to let things go. 4 In her summation, the second prosecutor asked the jury, 5 Now, when opening statements began in this case three weeks 6 ago, you must have been saying to yourself: who would do 7 such a thing? 8 because he was wearing blue? 9 you to the defendant. Who would execute a 14-year-old boy simply Well, allow me to reintroduce That would be Mr. Murder. He would 10 do something like this. 11 the prosecutor commented that Farmer really tried to prove 12 himself a real gangster, to come up in the gang. 13 maybe live up to his name of Murder. 14 In the climax of the summation, You know, Finally, in her rebuttal to Farmer s closing argument, 15 the first prosecutor used the nickname Murder nearly 16 thirty times. 17 the day he shot Patterson, and argued that [i]n a word, 18 . . . what happened in Pennsylvania was about revenge and 19 power and being a tough gangster. 20 living up to his name and his reputation as a Blood. 21 prosecutor closed the government s case by admonishing the 22 jury to put the responsibility for these crimes where it She referred to Murder . . . on the warpath 29 It [was] about Murder The 1 belongs; and that is with defendant Laval Farmer, the Blood 2 known as Murder. 3 We have ruled on challenges to the use of a defendant s 4 nickname in three prior cases. 5 511 F.2d 585, 602 (2d Cir. 1975), the prosecution introduced 6 nicknames for several defendants and witnesses, including 7 Charlie Lamb Chops, Big Vinny, Philly Rags, and 8 Checko Brown. 9 prosecution practice is to be condemned, we would not In United States v. Aloi, We explained that although this 10 presume prejudice, because both the prosecution and defense 11 had used the criminal backgrounds of witnesses to their 12 advantage and because the epithets occasionally 13 interspersed throughout an eight-week trial were 14 insufficient to materially divert[] the attention of the 15 jury. 16 Id. (emphasis added). In United States v. Burton, 525 F.2d 17, 19 (2d Cir. 17 1975), we considered use of the nickname Big Time. 18 Burton, the defendant s nickname was heard on recorded 19 telephone conversations, and the defendant never moved to 20 strike the nickname from the indictment. 21 [i]n view of the fact that testimony as to the defendant s 22 nickname was relevant to the government s case and therefore 30 Id. In We held that 1 properly before the jury, the prosecutor s occasional 2 reference to the defendant by his nickname during the 3 presentation of the government s case, while certainly not 4 to be encouraged, was not prejudicial and does not require 5 the grant of a new trial. 6 Id. (emphasis added). More recently, in United States v. Mitchell, 328 F.3d 7 77, 83-84 (2d Cir. 2003), we considered the government s use 8 of the nickname Phox. 9 noted in summation that Mitchell had outfoxed questions In Mitchell, the government had 10 while testifying. 11 observed that Mitchell s identity . . . was not at issue in 12 this case, nor did the admission of the nickname directly 13 relate to the proof of the acts alleged. 14 Government s references were arguably inappropriate. 15 at 84. 16 nickname were not prejudicial in view of the fact that they 17 were brief and isolated and in light of the substantial 18 evidence of guilt adduced by the government. 19 added). Id. at 83 (brackets omitted). We Accordingly, the Id. We held, however, that the references to Mitchell s Id. (emphasis 20 Our decisions in Aloi, Burton, and Mitchell are 21 consistent with precedents in other circuit courts, which 22 have looked to the relevance of the defendant s nickname and 31 1 the frequency of its use by the prosecution in deciding 2 whether a defendant was prejudiced. 3 States v. Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999) 4 (finding no error in including in indictment or admitting 5 testimony of nickname Macho Gatillo ( Trigger Man ) where 6 nickname was critical to establishing authorship of letter); 7 United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) 8 (permitting use of nickname Monster where it was not used 9 to suggest [defendant s] bad character or unsavory 10 proclivities and where it could not be avoided in 11 wiretaps); United States v. Black, 88 F.3d 678, 681 (8th 12 Cir. 1996) (holding that reference to defendant as the 13 Jamaican did not warrant reversal where name was not used 14 in prejudicial manner and confidential informant only knew 15 defendant by that name); United States v. Smith, 918 F.2d 16 1501, 1511, 1513 (11th Cir. 1990) (affirming conviction 17 where nickname Boss Man was introduced as evidence 18 defendant held a supervisory or managerial role in the 19 enterprise whose members called him Boss Man ). See, e.g., United 20 In assessing the propriety of using a defendant s 21 nickname, other courts have also looked to whether the name 22 was necessarily suggestive of a criminal disposition. 32 1 United States v. Dean, 59 F.3d 1479, 1492 (5th Cir. 2 1995)(holding that the nickname Crazy K was not 3 necessarily suggestive of a criminal disposition ); see also 4 United States v. Jorge-Salon, 734 F.2d 789, 791-92 (11th 5 Cir. 1984) (noting that [t]he alias . . . The Egg, is 6 similar to the alias Red in Taylor which [that] court 7 observed, is no more than a nickname (quoting United 8 States v. Taylor, 554 F.2d 200, 203 (5th Cir. 1977)). 9 In United States v. Williams, the Seventh Circuit 10 vacated a mail-fraud conviction because the prosecution 11 elicited testimony from a police detective that he knew the 12 defendant as Fast Eddie. 13 1984). 14 about the defendant s nickname was completely unrelated to 15 any of the other proof against the defendant, and [t]he 16 prosecution s only possible purpose in eliciting the 17 testimony was to create an impression in the minds of the 18 jurors that the defendant was known by the police to be an 19 unsavory character or even a criminal. 20 prosecution s introduction of the nickname was deemed so 21 prejudicial as to warrant a new trial. 22 United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976) 739 F.2d 297, 299-301 (7th Cir. The court found that the detective s testimony 33 Id. at 300. The Id. at 301; cf. 1 (per curiam) (holding that where an alias, though proven, 2 holds no relationship to the acts charged, a motion to 3 strike [the alias from the indictment] may be renewed, the 4 alias stricken and an appropriate instruction given the 5 jury ). 6 In these cases, the suggestiveness of the nickname has 7 not required exclusion, especially when it helped to 8 identify the defendant, connect him to the crime, or prove 9 other relevant matter, or when coherent presentation of the 10 evidence entailed passing reference to it. 11 admissibility, however, the courts also considered whether 12 the nickname s probative value was substantially outweighed 13 by its capacity for unfair prejudice. 14 403 ; Dean, 59 F.3d at 1491. 15 nickname was found proper, the courts went on to consider 16 the frequency, context, and character of the use that the 17 prosecution made of it. 18 Burton, 525 F.2d at 19; Aloi, 511 F.2d at 602. 19 In determining See Fed. R. Evid. And even when admission of the See Mitchell, 328 F.3d at 83-84; In this case, it was error for the district court to 20 permit the government to elicit testimony of Farmer s 21 nickname (except for references by witnesses who know him by 22 that name): identity was not an issue at trial, and Farmer s 34 1 nickname, as a name, had no legitimate relationship to the 2 crimes charged.6 3 of a criminal disposition, Dean, 59 F.3d at 1492, and a 4 propensity to commit particularly heinous crimes, including 5 the very offenses charged in the indictment. 6 of Evidence 404(a) prohibits admission of [e]vidence of a 7 person s character or a trait of character . . . for the 8 purpose of proving action in conformity therewith on a 9 particular occasion. Farmer s nickname was strongly suggestive Federal Rule Moreover, the district court s pre- 10 trial ruling imposed no restraint or limitation on the 11 government s use of the nickname.7 6 Evidence that been relevant had he White to memorialize Murder long before And nothing was done to Farmer was known as Murder might have adopted the nickname after killing Jose the crime. But Farmer was called the White killing: Russell, for example, testified that he knew Farmer as Murder in 1998, three years before the White killing. Thus, the nickname had no connection to the proof of the acts alleged. Mitchell, 328 F.3d at 84. 7 Because several witnesses knew Farmer only as Murder, it was probable that the name would be used occasionally, even if only accidentally. Cf. United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984) (holding that witness s use of gang nicknames was permissible, where gang members used nicknames in witness s presence and forbidding [the witness] from using the[] names would have placed an undue burden on her testimony ). Additionally, certain events could only be described with use of the nickname: Russell, for example, testified that when he heard gunshots coming from Patterson s bedroom, he screamed Murder, Murder. However, the frequency of the nickname s 35 1 mitigate prejudice, such as giving a curative instruction. 2 But the main problem was not the admission of the 3 nickname into evidence. 4 frequently repeated, gratuitous invocation of Farmer s 5 nickname in their addresses to the jury, uttered in a 6 context that, in effect, invited the jurors to infer that 7 the defendant had earned the nickname among his gang 8 colleagues as a result of his proclivity to commit murder-- 9 an inference corroborated by the government s evidence that Rather, it was the prosecutors 10 he had yielded to that proclivity in the particular 11 instances being tried. 12 was designed to prevent. 13 This is precisely what Rule 404(a) Even so, the misuse and overuse of Farmer s nickname 14 would not lead us to vacate a conviction unless the 15 defendant suffered substantial prejudice, by so infecting 16 the trial with unfairness as to make the resulting 17 conviction a denial of due process. 18 Shareef, 190 F.3d 71, 78 (2d Cir. 1999) (internal quotation 19 marks, citations, and brackets omitted); see also United United States v. use in evidence, and the resulting prejudice, as well as the prosecutors deliberate attempt in summation to use the nickname to imply a proclivity on the defendant s part to commit murder, could have been abated had the district court exercised greater care in its ruling. 36 1 States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). 2 Moreover, where, as here, the defendant did not object to 3 the remarks at trial, reversal is warranted only where the 4 remarks amounted to a flagrant abuse. 8 5 Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (quotation marks 6 and brackets omitted); see also United States v. Rivera, 22 7 F.3d 430, 437 (2d Cir. 1994). 8 9 United States v. In our prior cases, the government s use of a defendant s nickname was occasional, Burton, 525 F.2d at 10 19; Aloi, 511 F.2d at 602, or brief and isolated, 11 Mitchell, 328 F.3d at 84 . 12 in a manner that offended Rule 404--was the main rhetorical 13 trope used by the prosecution in its addresses to the jury. 14 This tactical misuse of the nickname, no fewer than thirty 15 times during the rebuttal summation in a presentation that 16 occupies only sixteen transcript pages, amounted to a 17 flagrant abuse. 18 19 But Farmer s nickname--permitted Did the misuse of the nickname cause Farmer substantial prejudice? One of the relevant considerations is that the 8 Farmer argues that his objection to the admission of his nickname sufficed to preserve his present challenge to the prosecutors comments. We need not resolve that question, because the prosecutors remarks amounted to a flagrant abuse. Coriaty, 300 F.3d at 255. 37 1 district court did nothing to curb the abuse or mitigate the 2 prejudice, despite initially entertaining Farmer s request 3 that the government avoid use of the nickname in its 4 examination of witnesses. 5 223 F.3d 102, 123-24 (2d Cir. 2000). 6 determinative factor here is the weight of the evidence. 7 See id. at 123. 8 and the conspiracy to assault White was supported by such 9 overwhelming evidence that conviction was a certainty. 10 was therefore not affected by the government s conduct. 11 the other hand, the evidence supporting Farmer s guilt for 12 the attempted murder of Patterson was far less conclusive. See United States v. Feliciano, However, the Farmer s guilt respecting the White murder It On 13 Both the murder of White and conspiracy to assault 14 White were shown with clarity by multiple witnesses who 15 described in detail the sequence of events before, during, 16 and after White s murder. 17 to see the Crips who attacked Roach and Shoke; the murder 18 was obviously a (misguided) act of retaliation. 19 of the witnesses was strongly supported by Farmer s acts and 20 words after the crime, including his move to Wilkes-Barre 21 and his explanation to Russell as to why he was there. 22 Ample evidence also showed the operation of the Bloods and Key described going with Farmer 38 Testimony 1 the role of violence in increasing members status within 2 the enterprise. 3 evidence, there can be no doubt that Farmer would have been 4 convicted on Counts One, Two, and Three even if he had no 5 nickname. 6 Given the strength of the government s However, our confidence does not extend to Farmer s 7 conviction for the attempted murder of Patterson. 8 witnessed the shooting or what happened in Patterson s 9 bedroom. Nobody The evidence showed that the two men had an 10 ongoing feud, with hatred and contempt on both sides. 11 was plausible--as Farmer argued to the jury--that Patterson 12 initiated an attack against Farmer in Patterson s bedroom, 13 and that Farmer acted in self-defense. 14 by Farmer s account to Russell of Patterson moving toward 15 the bed where the 9 millimeter firearm was located. 16 So it This was supported Additionally, as discussed in Part I, supra, it is not 17 clear whether Farmer shot Patterson to settle a personal 18 score or to elevate his status within the Bloods enterprise. 19 Only the latter finding would support a conviction under the 20 VICAR statute; but the government may have short-circuited 21 the jury s fact-finding by repeatedly using Farmer s 22 prejudicial nickname in discussing the Patterson shooting. 39 1 For example, the government argued that Murder . . . was 2 the one that was on the warpath that day. 3 government s narrative of the shooting itself, [o]ut came 4 Murder s 380 pistol . . . . 5 [Patterson for] dead. 6 suggested, what happened in Pennsylvania was about revenge 7 and power and being a tough gangster. 8 living up to his name and his reputation as a Blood. 9 The government argues that Farmer could not have In the Murder leaves, leaving J-Rock In a word, the government It [was] about Murder 10 suffered prejudice because the crimes were so highly charged 11 and gruesome that the nickname could not have had 12 incremental effect. 13 trial evidence was (unavoidably) inflammatory was no reason 14 for the government to raise the temperature in the courtroom 15 by irrelevant sensation. 16 This argument is unsound: that the In sum, Farmer is entitled to a new trial for the 17 Patterson shooting because of the government s misuse of 18 Farmer s nickname, the district court s failure to forestall 19 or mitigate the prejudice, and the arguable strength of 20 Farmer s defenses to the charged offense. 21 entitled to a new trial for the White murder or conspiracy 22 to assault because there was no substantial prejudice given 40 Farmer is not 1 2 the certainty of conviction. Because we are vacating Farmer s attempted-murder 3 conviction, we must also vacate his convictions for the 4 related firearm offenses charged in Counts Five and Six. 5 See United States v. Polanco, 145 F.3d 536, 540 (2d Cir. 6 1998) (reversing derivative § 924(c) convictions where the 7 underlying conviction was reversed). 8 9 10 III Farmer argues that he is entitled to a new trial for 11 the murder of Jose White because White s family members wore 12 T-shirts featuring White s photograph during trial. 13 fourth day of trial, defense counsel requested that nobody 14 be permitted in this courtroom with T-shirts with a picture 15 of Jose White for the jury to see. 16 he had not noticed the shirts during the first three days of 17 trial, but that he found out when his wife read about them 18 in the newspaper. 19 On the Counsel explained that Judge Platt responded that he had seen several 20 spectators [o]ne of the first days and that it appeared 21 there was a picture. 22 sufficiently good eyesight to see the photographs or if But he was not sure if jurors had 41 1 they would be affected by the picture, because he 2 couldn t recognize that they had a picture, even with [his] 3 glasses on. 4 that [p]eople are free to walk into a courtroom with 5 whatever they want on their clothing, and I m reluctant to 6 adopt a different rule. 7 prosecutors to urge them not to come into this courtroom 8 with shirts with pictures. As to Farmer s request, Judge Platt opined Nonetheless, he urge[d] the 9 In Estelle v. Williams, 425 U.S. 501, 505 (1976), the 10 Supreme Court stated that a courtroom practice creating an 11 unacceptable risk . . . of impermissible factors coming 12 into play violates due process and the defendant s right to 13 a fair trial. 14 compel an accused to stand trial before a jury while dressed 15 in identifiable prison clothes. 16 Williams ruled that the State cannot . . . Id. at 512. In Holbrook v. Flynn, 475 U.S. 560, 562 (1986), the 17 Supreme Court considered whether a defendant s due process 18 rights were violated when, at his trial with five 19 codefendants, the customary courtroom security force was 20 supplemented by four uniformed state troopers sitting in the 21 first row of the spectator s section. 22 question must be . . . whether an unacceptable risk is 42 Under Williams, the 1 presented of impermissible factors coming into play. 2 at 570 (quoting Williams, 425 U.S. at 505). 3 standard, the augmented presence of police was held not 4 inherently prejudicial. 5 Id. Applying that Id. at 570-72. The Ninth Circuit applied Williams and Flynn to grant 6 habeas corpus relief because spectators at a rape trial were 7 permitted to wear buttons displaying the message Women 8 Against Rape. 9 Cir. 1990). Norris v. Risley, 918 F.2d 828, 831-32 (9th The buttons created an unacceptable risk . . . 10 of impermissible factors coming into play, because they 11 conveyed a message that undermined the defendant s 12 presumption of innocence. 13 Id. The Ninth Circuit later relied on Norris to hold that a 14 petitioner was inherently prejudic[ed] when the victim s 15 family members sat in the front row at trial wearing buttons 16 with the victim s photograph. 17 F.3d 653, 657-58, 661 (9th Cir. 2005), rev d sub. nom., 18 Carey v. Musladin, 549 U.S. 70 (2006). 19 that the buttons essentially argue[d] that [the victim] 20 was the innocent party and that the defendant was 21 necessarily guilty. 22 Musladin v. Lamarque, 427 The court decided Id. at 660. The Supreme Court overruled the Ninth Circuit s 43 1 decisions in Norris and Musladin v. Lamarque on the ground 2 that no clearly established Supreme Court precedent 3 governed displays by trial spectators. 4 Musladin, 549 U.S. 70, 72 (2006). 5 Williams and Flynn both involved state-sponsored courtroom 6 practices, id. at 76, and that the Antiterrorism and 7 Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 8 110 Stat. 1214 (codified in scattered sections of 18 U.S.C., 9 21 U.S.C., 28 U.S.C., and 42 U.S.C.), precluded extending See Carey v. The Court reasoned that 10 those precedents--on habeas review of a state-court 11 judgment--to displays by private actors, Carey v. Musladin, 12 549 U.S. at 77. 13 on a defendant s fair-trial rights of the spectator conduct 14 to which [defendant] objects is an open question in our 15 jurisprudence. 16 question, but it observed that the Fourth and Ninth Circuits 17 (and state courts) were divided as to whether spectator 18 displays can be inherently prejudicial. 19 Carey v. Musladin stressed that the effect Id. at 76. The Court did not decide that Id. at 76-77. In light of the Supreme Court s decision in Carey v. 20 Musladin, Farmer s exclusive reliance on Norris is 21 misplaced. 22 clean and left it to lower courts to address claims such as Carey v. Musladin, in effect, wiped the slate 44 1 Farmer s in the first instance. 2 of this case do not require us to decide whether courtroom 3 displays by private actors can ever be inherently 4 prejudicial. 5 relatives T-shirts for three days, the trial judge could 6 not make out the picture, and the imagery and its import 7 only became known because a reporter providing daily 8 coverage of the trial interviewed White s relatives for his 9 story. However, the circumstances Defense counsel did not observe the See, e.g., John Moreno Gonzales, Witness Claims 10 Victim Was in Gang, Newsday, Feb. 10, 2006, at A47. 11 these facts, we cannot conclude that what [the jurors] saw 12 was so inherently prejudicial as to pose an unacceptable 13 threat to [the] defendant s right to a fair trial. 14 475 U.S. at 572. 15 On Flynn, Moreover, once defense counsel called the T-shirts to 16 the district court s attention, the court instructed the 17 government to urge [Farmer s family] not to come into this 18 courtroom with shirts with the picture. 19 further objection from defense counsel, and there is no 20 indication in the record that the government or Farmer s 21 family ignored the court s request. 22 fulfilled the obligation of trial judges to take careful 45 There was no This intervention 1 measures to preserve the decorum of courtrooms. 2 Musladin,549 U.S. at 81 (Kennedy, J., concurring in the 3 judgment). 4 case from Norris, 918 F.2d at 829, and Musladin v. Lamarque, 5 427 F.3d at 655, in which the trial courts did nothing to 6 remove the displays from their courtrooms. Carey v. The ameliorative action also distinguishes this 7 8 IV 9 Farmer argues that the government introduced expert 10 testimony from Pennsylvania State Trooper Edward Urban 11 without complying with Federal Rule of Criminal Procedure 12 16(a)(1)(G), which requires the government to provide a 13 written summary of expert testimony in advance of trial. 14 trial, Urban testified as to bullet trajectories, blood 15 splatter patterns, and shell casings found at the scene of 16 the Patterson shooting. 17 evidence at the crime scene in Wilkes-Barre showed the kind 18 of shootout where one person was doing the shooting and 19 one person was being shot. 20 government referred to this statement as Urban s expert 21 conclusion, and argued that it undermined Farmer s theory 22 of self-defense. At Urban also testified that the In its summation, the 46 1 Because we are vacating Farmer s conviction for the 2 Patterson shooting, we need not decide whether Urban 3 testified as an expert or whether it was error to admit his 4 testimony without the advanced notice required by Rule 5 16(a)(1)(G). 6 for attempted murder, the government is likely to elicit 7 testimony from Urban about the crime-scene evidence. Farmer is now on notice that if he is retried 8 9 10 V Farmer argues that his sentence of 25 years 11 imprisonment for the discharge of a firearm in connection 12 with the White murder exceeds the statutory maximum. 13 person who, during and in relation to any crime of violence 14 . . . uses or carries a firearm . . . shall, in addition to 15 the punishment provided for such crime of violence, . . . 16 (iii) if the firearm is discharged, be sentenced to a term 17 of imprisonment of not less than 10 years. 18 § 924(c)(1)(A). 19 minimum penalties for defendants with prior § 924(c) 20 convictions, see id. § 924(c)(1)(C); but Farmer s conviction 21 on Count Three was his first under § 924(c). 22 increased penalties did not apply to Count Three. [A]ny 18 U.S.C. The statute imposes higher mandatory 47 Therefore, the 1 Farmer argues that the ten-year mandatory minimum 2 sentence prescribed by § 924(c)(1)(A)(iii) also constitutes 3 the statutory maximum sentence. 4 specify a maximum sentence, and in United States v. Johnson, 5 507 F.3d 793, 798 (2d Cir. 2007), we h[e]ld that the 6 maximum available sentence under § 924(c)(1)(A) is life 7 imprisonment. 8 permitted to impose a sentence above the ten-year mandatory 9 minimum. 9 But the statute does not Under Johnson, the district court was 10 11 VI 12 Farmer, with leave of the Court, submitted a pro se 13 supplemental brief in which he argues that his convictions 14 must be vacated because the Act of June 25, 1948, Pub. L. 9 It appears that Farmer is entitled to resentencing on Count Three in light of United States v. Williams, 558 F.3d 166, 168 (2d Cir. 2009), which held that the mandatory minimum sentence under Section 924(c)(1)(A) is . . . inapplicable where the defendant is subject to a longer mandatory minimum sentence for a[n] . . . offense that is part of the same criminal transaction or set of operative facts as the firearm offense. Farmer faced a mandatory life sentence for the White murder, the offense underlying the § 924(c) conviction. However, Farmer did not raise this issue in his brief or at oral argument, perhaps because the district court s imposition of a 25-year sentence suggests that a remand under Williams would be futile (or because Farmer faces a life sentence in any event). Accordingly, we decline to reach the issue. 48 1 No. 80-772, 62 Stat. 683 (codified as amended in scattered 2 sections of 18 U.S.C.), which, inter alia, grants district 3 courts criminal jurisdiction, see 18 U.S.C. § 3231, 10 was 4 not validly enacted by Congress. 5 Congressional Record from the date that the Act was passed 6 shows that a quorum was not present, and that the signature 7 of the Speaker of the House of Representatives on the 8 enrolled bill did not cure this deficiency. 9 asserts that the legislation is void because the Farmer contends that the Farmer also 10 Congressional Record does not describe how members voted on 11 the bill, as required by Article I, Section 7, Clause 2 of 12 the Constitution. 11 13 circulating among inmates in federal correctional 14 institutions, and has been presented in other pro se briefs. 15 This notion has evidently been The government argues that even if procedural 10 18 U.S.C. § 3231 provides, in relevant part, that [t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. 11 Article I, Section 7, Clause 2 provides that after a bill is returned to Congress as a result of a presidential veto, Congress shall reconsider the statute, and Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. 49 1 irregularities tainted the passage of the Act of June 25, 2 1948 (a point the government vigorously contests), the bill 3 was properly enrolled (signed by the Speaker of the House 4 and President Pro Tempore of the Senate), immunizing it from 5 judicial inquiry into procedural irregularities. 6 The enrolled-bill rule precludes a court from looking 7 beyond the signatures of House and Senate leaders in 8 determining the validity of a statute. 9 Columbia Circuit recently explained the rule thus: The District of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 30 1349-50 (D.C. Cir. 2007) (internal quotation marks, 31 brackets, and ellipses omitted) (quoting Marshall Field & 32 Co. v. Clark, 143 U.S. 649, 670, 672-73, 675, 680 (1892)); It is not competent for a party [challenging the validity of a statute] to show, from the journals of either house, from the reports of committees or from other documents printed by authority of Congress, that an enrolled bill differs from that actually passed by Congress. The only evidence upon which a court may act when the issue is made as to whether a bill asserted to have become a law, was or was not passed by Congress is an enrolled act attested to by declaration of the two houses, through their presiding officers. An enrolled bill, thus attested, is conclusive evidence that it was passed by Congress. The enrollment itself is the record, which is conclusive as to what the statute is. 50 1 see also OneSimpleLoan v. U.S. Sec y of Educ., 496 F.3d 197, 2 203 (2d Cir. 2007) ( [T]he enrolled bill rule provides that 3 if a legislative document is authenticated in regular form 4 by the appropriate officials, the courts treat that document 5 as properly adopted. (brackets omitted) (quoting United 6 States v. Pabon-Cruz, 391 F.3d 86, 99 (2d Cir. 2004)); 7 United States v. Miles, 244 Fed. App x 31, 33 (7th Cir. 8 2007) (order) (relying on enrolled-bill rule to deny 9 challenge to the validity of 18 U.S.C. § 3231); United 10 States v. Chillemi, No. 03-cr-917(PGR)(JRI), No. 07-cv- 11 430(PGR), 2007 WL 2995726, at *6-7 (D. Ariz. Oct. 12, 2007) 12 (same); United States v. Harbin, No. C-01-cr-221(3), No. C- 13 07-cv-260, 2007 WL 2777777, at *5-6 (S.D. Tex. Sept. 21, 14 2007) (same). 15 We agree with the government that the enrolled-bill 16 rule precludes Farmer s challenge to the validity of the Act 17 of June 25, 1948, and we hold that the district court 18 properly exercised jurisdiction pursuant to 18 U.S.C. 19 § 3231. 20 21 22 CONCLUSION For the foregoing reasons, the judgment of the district 51 1 court is affirmed in part, vacated in part, and remanded for 2 a retrial of the attempted murder of Patterson and related 3 firearms offenses. 52

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