United States v. Miller

Citations: 116 F.3d 641; 46 Fed. R. Serv. 1174; 1997 U.S. App. LEXIS 14974Docket: Nos. 343, 483, 344, 349, 383, 345-348, Dockets 95-1077(L), 95-1308, 95-1203, 95-1302, 95-1307, 95-1327, 95-1466, 95-1642 and 96-1031

Court: Court of Appeals for the Second Circuit; June 20, 1997; Federal Appellate Court

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Defendants Gerald Miller, Ronald Tucker, Roy Hale, Waverly Coleman, Harry Hunt, Shannon Jimenez, Raymond Robinson, Wilfredo Arroyo, and David Robinson were convicted by a jury in the Eastern District of New York for various crimes related to their involvement in a narcotics distribution enterprise. All nine were found guilty of conspiracy to distribute cocaine base under 21 U.S.C. § 846. With the exception of Jimenez, they were also convicted of engaging in racketeering under RICO, 18 U.S.C. § 1962(e). Additionally, several defendants faced convictions for distributing cocaine base (21 U.S.C. § 841) and possession with intent to distribute (21 U.S.C. § 841(a)(1)). 

Sentences varied, with Miller receiving seven life terms plus a 20-year concurrent term, while other sentences included a mix of life terms, long-term imprisonment, and concurrent sentences. Each defendant’s imprisonment was followed by supervised release. 

On appeal, the defendants challenged their convictions on multiple grounds, including the jury selection process, the admissibility of wiretap evidence, and the conduct of the trial court regarding witness testimony and jury instructions. Notably, Miller's conviction for narcotics conspiracy was reversed due to a Double Jeopardy violation, with a remand for dismissal of that charge. The court upheld all other convictions, dismissing the defendants' remaining arguments as lacking merit. The case involved a gang, the 'Supreme Team,' known for distributing crack cocaine through violent enforcement methods.

Seven defendants, excluding Coleman and Raymond Robinson, were tried in the Miller Trial, while Coleman and Robinson were tried separately in the Coleman Trial. The government presented extensive evidence at the Miller Trial, including over 100 wiretapped conversations, crime scene photographs, and testimonies from approximately 80 witnesses, including gang members and law enforcement officers. Key witnesses included former gang associates and law enforcement who detailed the Supreme Team's violent activities and drug operations. 

The Supreme Team, a street gang founded in the early 1980s in Queens, New York, was led by Kenneth "Supreme" McGriff and later by his nephew Miller. The gang focused on crack cocaine distribution, peaking in 1987 with daily earnings over $200,000. Under Miller's leadership, the gang engaged in numerous violent acts to maintain control over drug trade, including at least eight ordered homicides in 1987. The gang utilized a complex structure with multiple layers of drug sellers to protect leaders from law enforcement and communicated using coded language.

In late 1987, while Miller was imprisoned, law enforcement conducted raids and seized significant quantities of weapons and narcotics, despite the gang being alerted to the impending actions. Following these events and McGriff's arrest, operations of the Supreme Team were ordered to cease. At the Coleman Trial, the evidence presented was limited, excluding acts of violence, with only Trent Morris testifying as an accomplice witness.

Miller, after his release from prison in spring 1989, reestablished the Supreme Team and regained control over key drug retail locations, involving key members such as Arroyo, Hunt, and Ernesto Piniella in leadership roles. The gang's operations saw significant revenue, reportedly reaching $10,000 daily. The substantive narcotics distribution charges against the defendants pertain to activities monitored from December 1989 to March 1990, primarily conducted from David Robinson's mother's apartment, where drug transactions, processing, and packaging occurred. The Supreme Team resumed violent tactics, including homicides, with evidence presented at trial regarding murders before and after the gang's 1989 resurgence.

Specifically, in 1987, the Supreme Team collaborated with Lorenzo 'Fat Cat' Nichols to locate and kill the Bolden brothers, suspected of robbing Nichols' gang. Miller enlisted the help of corrupt parole officers, Ina McGriff and Ronnie Younger, who provided critical information and falsified documents for the gang. Miller paid $3,000 for the addresses of the Boldens, leading to their eventual shootings. Additionally, McGriff informed Piniella that gang member James Page was cooperating with authorities, prompting an order from Kenneth McGriff for Page's murder, which Piniella facilitated. Handwritten notes detailing the Boldens' addresses were recovered during a raid, further implicating the gang's criminal activities.

Gus Rivera, a member of the Supreme Team, facilitated connections with Colombian drug suppliers. In July 1989, Rivera and four suppliers were robbed and murdered by gang members Miller, Arroyo, Hale, Hunt, and Jimenez, though the identities of the suppliers remained largely unknown. The jury did not find sufficient evidence to prove these murders as RICO predicate acts. Subsequently, the gang viewed Rivera as a liability, leading to his attempted murder in August 1989, from which he survived briefly before being tracked down and killed by Arroyo and Hale.

In a related incident, Colombian suppliers Fernando Suarez and Pablo Perlaza were targeted by the Supreme Team in August 1989. They were held at gunpoint by Julio Hernandez, bound, suffocated in plastic bags, and beaten with a baseball bat by Hale. Hunt assisted in disposing of their bodies in Queens. Suarez’s wife, after learning of his disappearance, contacted Arroyo, who misled her about Suarez's fate.

Following extensive investigations, several Supreme Team members were arrested in March 1990 on charges similar to those in the current case. State indictments were dismissed after adverse pretrial rulings, prompting the State to transfer evidence to federal authorities, leading to a 14-count superseding indictment. Defendants faced charges under RICO, including conducting racketeering activities, conspiracy to distribute cocaine, and various counts of drug distribution and possession. Miller faced additional charges for engaging in a continuing criminal enterprise, threats related to racketeering, and conducting financial transactions involving narcotics proceeds. Other specific charges included distributing cocaine near a public school and using interstate commerce to facilitate illegal activities.

Defendants faced multiple unsuccessful pretrial motions, contesting the jury selection system, seeking to suppress pen register and wiretap evidence, attempting to exclude testimony from cooperating witness Julio Hernandez based on alleged Sixth Amendment violations, and challenging the admissibility of statements made by homicide victim Fernando Suarez. After resolving these motions, two trials occurred, resulting in various convictions and acquittals for the defendants: Miller was acquitted of possession and threatening violence but convicted on other counts; Tucker and Hale were convicted on RICO and narcotics charges, with some acquittals; Hunt and Arroyo were acquitted on one possession count each but convicted on remaining charges; David Robinson was convicted on all counts; Jimenez was acquitted of possession but convicted of narcotics conspiracy after the district court granted his Rule 29 motion for acquittal on RICO and distribution counts; Coleman and Raymond Robinson were acquitted on one distribution count but convicted on others. The defendants appealed their convictions, arguing primarily that the jury selection plan violated their rights, the district court erred in rejecting their claims regarding the legality of evidence and the rights of confrontation, and that jury instructions on the RICO count were flawed. Additionally, Hunt challenged the amendment of the indictment against him, while Miller argued that his RICO conviction lacked a proper legal basis and that his dual convictions violated the Double Jeopardy Clause. The defendants raised further challenges related to pretrial decisions, evidentiary rulings, and sentencing determinations. Although some procedural flaws were identified, only Miller's double jeopardy claim was deemed meritorious.

The Eastern District of New York includes five counties: Queens, Kings, and Richmond (New York City counties), and Nassau and Suffolk (Long Island counties). The jury selection plan for the district utilized a master jury wheel that incorporated residents from all five counties for trials in Brooklyn and a separate wheel for Uniondale, including only Long Island residents. In the defendants' Brooklyn trial, jurors were randomly selected from voter and licensed driver lists across all counties. The defendants argued that the jury selection process, which they claimed resulted in a disproportionate underrepresentation of minorities, violated the Jury Selection and Service Act (JSSA), the Equal Protection Clause of the Fifth Amendment, and the Sixth Amendment's fair-cross-section requirement. 

The JSSA mandates that jury plans ensure random selection from a fair cross section of the community, prohibiting exclusion for invidious reasons and requiring substantial proportional representation from each political subdivision. The Act allows for the use of actual voter counts or registered voter numbers for determining proportionality and encourages the use of voter registration lists over census data due to their reliability and currentness. The legislative history supports the notion that random selection from master wheels minimizes discrimination and ensures a representative jury, stipulating that each county’s representation should be substantially proportional to its population share within the district. The court found the defendants' contentions to lack merit.

Congress did not intend for the master jury wheel to reflect precise community demographics beyond the initial source list. To succeed in a Judicial Selection and Service Act (JSSA) challenge, a defendant must demonstrate a "substantial failure" in proportional representation, which goes beyond mere technical violations of the Act. A valid claim of group underrepresentation requires proof of systematic exclusion of a distinctive community group, as established in relevant case law.

Defendants challenged the Eastern District Plan, arguing that jurors for Brooklyn trials should come exclusively from New York City counties, and that inclusion of Long Island residents led to overrepresentation of that group and underrepresentation of minorities. The district court rejected these claims, finding no evidence of systematic exclusion or substantial failure to comply with the JSSA. The Eastern District Plan utilized a source list from voter registrations and motor vehicle records, compiled every four years, and selected jurors randomly to ensure balance across counties. The 1988 source list contained over six million names, from which a significant number were drawn for the master jury wheel. Questionnaires were sent to a random selection of jurors, with about 25% qualifying for duty, irrespective of ethnicity or county. Defendants failed to show any obstacles faced by ethnic minorities in registering to vote or obtaining licenses, nor did they conduct a thorough statistical analysis to support their claims of underrepresentation, relying instead on data from a brief two-month period.

The questionnaires for jury selection included an optional ethnic data question, resulting in over 25% of jurors not providing this information. Defendants attempted to infer ethnic backgrounds from various data points, including addresses and lifestyle choices, and compared these to census data. However, the census does not accurately represent qualified jurors since it includes non-citizens and children. The district court correctly rejected the speculative ethnic background figures when assessing the jury selection plan's constitutionality and found that the defendants did not sufficiently demonstrate group underrepresentation.

The defendants argued they were hampered in their efforts due to denied discovery requests. While defendants have a right to discovery, the court found no improper limitation in this case. The Jury Selection and Service Act (JSSA) restricts the disclosure of records used in jury selection to those necessary for presenting a motion against the selection process. Defendants were allowed to inspect existing records but were not entitled to demand the jury administrator conduct analyses on their behalf. The court permitted testimony from the jury administrator and geographic breakdowns but denied a request for an ethnic breakdown over a 14-month period due to the extensive workload it would entail.

The district court's decision to deny additional discovery requests that exceeded statutory requirements was deemed appropriate and not an abuse of discretion. Furthermore, defendants' claims that the Eastern District Plan, even if compliant with the JSSA, resulted in an ethnic disparity violating their Fifth and Sixth Amendment rights were found to lack merit.

To challenge a criminal jury selection system under the Fifth Amendment's equal protection clause, a defendant must demonstrate (1) the existence of a cognizable group; (2) substantial underrepresentation of that group; and (3) that the selection process is not racially neutral due to intentional discrimination. Without evidence of intentional discrimination, a jury selection plan does not violate the Equal Protection Clause. The defendants failed to provide evidence of such discrimination, and without proof that specific groups faced registration barriers, a jury drawn from voter registration lists does not infringe upon the Sixth Amendment's fair cross-section requirement or the Fifth Amendment's equal protection guarantee. The Sixth Amendment ensures an impartial jury from the district where the crime occurred, but challenges regarding the inclusion of residents from Long Island in the master jury wheel for Brooklyn trials do not raise Sixth Amendment issues. This amendment does not necessitate a narrower geographical scope than the district itself. Additionally, the fair-cross-section provision guarantees the opportunity for a representative jury venire rather than a guaranteed representative venire. To prove a Sixth Amendment violation due to underrepresentation, a defendant must show (1) the excluded group is 'distinctive'; (2) its representation in venires is not proportionate to its community presence; and (3) systematic exclusion from the jury-selection process. Defendants did not establish systematic exclusion of minorities in the jury-selection process in the Eastern District. 

The defendants also challenged wiretap evidence from the Miller and Coleman trials, arguing that the warrants authorizing interception were based on information from unauthorized pen registers and were otherwise improperly granted. They claimed suppression of this evidence was warranted due to its suppression in state-court cases. During the investigation, pen registers were utilized to identify dialed numbers from the phones associated with Supreme Team members or their relatives.

Information obtained during a State investigation was used to apply for wiretap warrants. An Assistant District Attorney (ADA) mentioned that the registers in use were a new type capable of intercepting call contents with minor adjustments, though they had not been used for that purpose. The New York Court of Appeals, in People v. Bialostok, ruled that the potential to modify a pen register to intercept contents raises privacy concerns, requiring a warrant even for unmodified use. The defendants argued that the district court should have assessed whether the pen registers used against them could intercept communication contents, claiming that their use violated state law and that evidence should be suppressed under Title III of the Omnibus Crime Control and Safe Streets Act. They also referenced past cases indicating that state procedures must align with federal standards if they impose stricter requirements. However, the court found several issues with the defendants' claims, noting that Title III does not apply to pen registers that merely record dialed numbers, as interception is defined as acquiring communication contents. Therefore, no court authorization is needed for the installation of a standard pen register, as established in Smith v. Maryland, which the court concluded applies to both traditional and unmodified newer models.

Title III protects against actual privacy infringements rather than hypothetical scenarios. The court emphasized that concerns about the potential misuse of pen register technology do not warrant deviation from established precedent, specifically the Smith case. It was concluded that the requirement in 2516(2) for compliance with state law regarding wiretap authorizations does not apply to the pen registers used in this case, and therefore, a hearing to assess the modification capabilities of these devices was unnecessary. 

Additionally, even if Title III were relevant, the defendants' arguments based on the Manfredi-Rizzo-Marion trilogy were ineffective. The court pointed out that the dicta from these cases has never been the basis for excluding evidence. Notably, in United States v. Sotomayor, it was clarified that even if wiretap evidence would be inadmissible in a New York State court, this did not impose an automatic obligation to apply state wiretap provisions in federal proceedings, particularly if they are more stringent than Title III. 

The Manfredi case only requires adherence to state statutory requirements aimed at protecting privacy rights, not procedural evidentiary rules. Furthermore, the interpretive dicta from Sotomayor, suggesting that more stringent state requirements could be applied in federal prosecutions if substantive, have not led to the exclusion of wiretap evidence. The court reinforced that it has avoided retroactively applying more restrictive state interpretations that would undermine good faith reliance by state officers on existing law, as demonstrated in cases like United States v. Aiello, where suppression was denied despite subsequent rulings indicating privacy concerns.

The "good faith" exception was applied in circumstances lacking prior authoritative state court interpretation. Defendants referenced the New York Court of Appeals decision in *Bialostok*, issued after the state utilized pen registers in this case. There was no allegation that state officers violated existing state law regarding the pen registers, nor was there a demonstrated need for a hearing on their good faith. Suppression of evidence obtained from the pen registers would not necessitate the suppression of wiretap evidence. Citing *United States v. Nanni*, it was established that flawed information in a wiretap application does not invalidate the warrant if the warrant would have likely been issued without that information.

In this case, police demonstrated probable cause for wiretap authorization through multiple sources, including informant debriefings, gang surveillance, and permitted prison phone interceptions. Even if the district court erred by not requiring a warrant for pen register use, the error was deemed harmless.

Beginning in August 1989, state agents installed a pen register on Polly Douglas’s home phone, revealing numerous calls to known Supreme Team members and incoming calls from state prisons. This led to a wiretap authorization, operational by December 1989, which intercepted narcotics trafficking discussions between the Douglas home and Miller's home. The Miller wiretap became operational in January 1990, capturing conversations among Supreme Team members regarding drug transactions. Subsequently, the Graham wiretap was authorized and became operational in February 1990, intercepting incriminating conversations involving gang members. All wiretaps were renewed, remaining active until March 1990, when arrests were made.

In a separate prosecution against Graham, the state court suppressed evidence from the Graham and Miller wiretaps due to failure to disclose Hale's cooperation with police and recklessness regarding the identities of those whose conversations would be intercepted. Miller utilized collateral estoppel to suppress evidence from the Graham wiretap. Defendants contested the district court's denial of their motion to suppress evidence from all three wiretaps.

Defendants argue for the reversal of their convictions and dismissal of their indictments with prejudice, claiming these indictments utilized evidence that had been suppressed in state prosecutions involving Miller and William Graham. Miller asserts that the state court's suppression ruling should be binding in this case. Additionally, defendants argue that their motion to suppress should have been granted due to law enforcement's failure to exhaust alternative investigative techniques and improper disclosures in warrant applications. The court finds these arguments unpersuasive.

Specifically, the court rejects the claim that the indictments should be dismissed based on the grand jury's use of evidence suppressed by the state court. A grand jury can utilize information from wiretaps unless there is clear evidence of illegality, such as a government concession of wrongdoing or established illegality from a prior judicial ruling. The court clarifies that state court suppression orders do not establish illegality in federal proceedings, as the United States is not bound by state court decisions regarding evidence. The court reiterates that state court rulings do not prevent federal courts from considering the evidence, confirming that the district court appropriately held an evidentiary hearing on the suppression motion and evaluated it on its merits.

Federal and state laws seek to balance law enforcement needs with individual privacy rights. Title III mandates that wiretap applications must detail previous investigative efforts, including their failures or reasons for anticipated ineffectiveness or danger. In United States v. Lilia, the court rejected wiretap evidence due to insufficient information on prior investigative techniques. Similar state requirements aim to align with federal standards, as seen in People v. McGrath. However, the law does not necessitate the exhaustion of all investigative methods before wiretap authorization; it only requires that investigators inform the judicial officer of the investigation's status and challenges. The appellate court reviews wiretap order rulings with deference, assessing whether the application provided minimal adequate facts. In the current case, the State's wiretap application indicated that it had been investigating the Supreme Team for years, had nearly exhausted traditional methods with minimal success, and faced challenges penetrating the organization's structure due to its leaders' protective measures. At the time of the wiretap request, the State had not identified all key members or the locations of narcotics and proceeds.

The State successfully secured cooperation from one accomplice but faced challenges in further undercover operations due to the Supreme Team's violent responses to perceived threats. By the time the State applied for the Graham wiretap, it struggled to gather physical evidence through traditional means, as infiltration was difficult and cooperating defendants were unreliable, with Hale's inconsistent cooperation and criminal history particularly undermining his credibility. The State sought wiretaps to identify leaders and suppliers of the Team and locate drug storage facilities. The district court found that the State demonstrated a legitimate need for the wiretap, rejecting the defendants' challenge regarding the Miller wiretap. The court stated that a challenge to an affidavit requires proof of intentional or reckless omissions essential for probable cause, referencing Franks v. Delaware. An evidentiary hearing concluded that State officials did not mislead the court in their wiretap applications. Although the Miller and Graham wiretaps were initially suppressed, the district court found no legal basis to grant relief, affirming its credibility assessment of the witnesses. Furthermore, the court determined that the defendants were not entitled to suppression of evidence due to the omission of Graham’s name from the Miller wiretap application. The state court's requirement to identify Graham was based on state law, which does not apply under federal law, as established in United States v. Donovan, where failure to name additional individuals does not invalidate a lawful wiretap authorization.

Defendants' challenges to wiretap evidence were deemed meritless, and the motion to suppress was properly denied by the district court. Julio Hernandez, a member of the Supreme Team, was arraigned on federal charges in February 1992. Despite initial reluctance to cooperate, he provided detailed information during an April proffer session and signed a cooperation agreement in May. Throughout his detention at the Metropolitan Correctional Center alongside other Supreme Team members, defendants argued that Hernandez's presence during defense strategy sessions violated their Sixth Amendment rights. The district court rejected these motions, concluding there was no intention by the government to infringe upon defendants' rights. On appeal, defendants contended the court erred by not conducting a hearing. The ruling reiterated that the Sixth Amendment is violated only when a government agent deliberately elicits incriminating statements from an accused without counsel present, as established in Massiah v. United States. The Massiah rule applies to situations resembling government interrogations, and mere proximity of a cooperating witness to noncooperating defendants does not automatically imply a violation. Additionally, while it is preferable for cooperating witnesses to be separated, certain circumstances may necessitate their association to protect their identity. A Massiah claim requires proof that the government benefitted from the cooperation, and the presence of an informant at defense meetings does not automatically necessitate a hearing unless valuable information was communicated to the government.

To require a hearing on a claim regarding the attorney-client relationship, a defendant must provide specific facts showing that privileged information was communicated to the prosecutor and that this resulted in prejudice. In the case referenced, the defendant did not demonstrate sufficient grounds for a hearing. Initially, Hernandez did not indicate he would become a government witness, providing minimal information during initial questioning, which led to no further meetings. The government had no basis to presume he would cooperate until April, when he disclosed information about the crimes charged.

Concerns arose regarding Hernandez's safety due to his cooperation, as his family was at risk from the Supreme Team gang. Although discussions occurred about separating Hernandez from his co-defendants, this was ultimately rejected to avoid signaling his cooperation, which could endanger his family. Hernandez's family could not be relocated immediately due to a sick family member, prompting the decision to delay his removal from the Metropolitan Correctional Center (MCC) until it was safe. Instructions were given to minimize his contact with co-defendants.

Hernandez was scheduled to plead guilty on June 19, 1992, by which time it was hoped his family would have been relocated. Although he pleaded guilty as planned, his family member's condition prevented their relocation, leading to further instructions for Hernandez to avoid his co-defendants. By July 2, 1992, once the family was relocated, Hernandez was removed from MCC. Concerns for his family's safety were substantiated by previous threats made against the Morris family when a member was set to testify.

Robin Carrington, sister-in-law of Trent Morris, lived with her father in Baisley Park Houses. Despite threats from Miller, who claimed he could easily harm others, Trent Morris testified against him in a state-court trial. That same night, both Robin and her father were killed, with Miller's nickname carved into their bodies. Due to safety concerns, Hernandez’s decision to cooperate with authorities was kept confidential until his family could be relocated. The defendants argued that this secrecy led to a violation of the Massiah rule, which prevents government infiltration of defense strategies. However, it was determined that there was no evidence suggesting Hernandez attempted to obtain incriminating information from his co-defendants after agreeing to cooperate. Instead, Hernandez followed instructions to limit contact with them, even declining to attend a meeting that Miller ordered. The defendants claimed Hernandez gained strategic insights into defense witness plans, specifically regarding Tucker and Bonner, but these claims were unsubstantiated. The court found no significant benefit to the government from any information Hernandez may have acquired, as the details were already publicly available through indictments or previous testimony. The district judge concluded there was no indication that Hernandez's testimony was influenced by any government infiltration.

The record does not show that the government benefited or that the defendants were prejudiced by Hernandez's detention in MCC for relocation. The district court's decision to reject the defendants' Massiah claims without an evidentiary hearing is deemed appropriate. During the trial, hearsay testimony from witnesses regarding statements made by murdered individuals was admitted against defendants Hale and Arroyo, despite the defendants' inability to confront the declarants. The court justified this based on the principle that the defendants caused the unavailability of the witnesses by murdering them. Defendants argued this rationale should only apply if the witnesses were killed to prevent their testimony during an ongoing proceeding, which was not the case here, and contended that a hearing was necessary to determine the circumstances of the declarants' absence. While the court acknowledged that a hearing should have been held, it determined that the error was harmless. The right to confront witnesses can be waived through a defendant's actions, as established in previous cases. The court affirmed that the Mastrangelo precedent allows for the admission of unsworn statements from witnesses murdered by defendants or those intimidated into silence, without necessitating an ongoing proceeding for the application of this principle. A finding of the defendants' intent to procure the unavailability of the declarant is relevant but not mandatory for the admission of such evidence.

The key issue is the defendant's involvement in the murder of a deceased witness. If the District Court determines that the defendant was complicit in the witness's death, it must consider any objections to the use of the witness’s testimony waived. Mere knowledge of a murder plot and failure to warn authorities can suffice for this waiver. However, the court must conduct an evidentiary hearing before admitting statements from absent declarants, as established in Mastrangelo, which requires the government to demonstrate that the declarant's unavailability resulted from the defendant's wrongdoing by a preponderance of the evidence. 

In the current case, the defense sought to exclude hearsay statements from deceased declarants, but the court declined to hold a hearing, asserting that the indictment indicated probable cause, which does not equate to a finding based on a preponderance of evidence. The court's approach, admitting statements subject to connection and using a clear-and-convincing standard, did not meet Mastrangelo's requirements. The grand jury’s probable cause determination cannot substitute for the necessary hearing where both parties can present their case. 

If the government fails to show that it is more likely than not the defendant caused the declarant's unavailability, the waiver of confrontation rights cannot be established, necessitating further inquiry into other admissibility grounds. The court’s admission of hearsay without a proper hearing risks infringing on constitutional rights. Despite these procedural errors, the appellate court deemed the admission of hearsay evidence harmless, noting sufficient evidence from various sources about the defendants' involvement in the murders.

Evidence presented at a hearing would likely lead the district court to conclude, by a preponderance of the evidence, that the defendants were accountable for the deaths of Suarez and Rivera. The admission of Rivera's statement regarding his actions does not demonstrate any prejudice to the defendants, as they were acquitted of possession of the cocaine allegedly taken from the slain Colombians. The omission of a Mastrangeb hearing was determined to be a harmless error.

Hunt argues for the dismissal of count six of the superseding indictment, which charges certain defendants, including him, with possession of cocaine linked to the murders of Suarez and Perlaza. He claims that since count six was previously dismissed against him, reinstating it is impermissible. However, the record indicates that while another charge was dismissed, count six was not, and Hunt’s name was inadvertently omitted in a redaction of the indictment. The government corrected this omission after it was discovered during the trial. 

Under the Fifth Amendment, a defendant should be tried only on charges returned by a grand jury, and altering the indictment's essential substance is unconstitutional. However, correcting clerical errors, such as typographical mistakes, is allowed if it does not affect the substance of the charges. Since the grand jury had indicted Hunt on count six and there was no motion or order dismissing him from that count, the omission was a clerical error. Thus, restoring his name prior to jury submission did not result in unfair prejudice against Hunt.

The government sought to dismiss certain allegations in the indictment but did not mention count six, which included Hunt's name. This omission was deemed inadvertent, and Hunt could not reasonably claim it indicated the government intended to abandon count six, as the dismissed allegations were not directed at him. During Hunt's sentencing, his attorney acknowledged awareness of count six and confirmed that he prepared to confront it prior to trial, despite not disclosing the omission to the court or the prosecution. The district court highlighted that Hunt's counsel chose not to bring the omission to light, indicating a strategic decision to benefit from the government's oversight. Consequently, any prejudice Hunt experienced from not defending against count six stemmed from his own tactical choices. Additionally, the substance of count six was integrated into another count against him, specifically in count one, which charged a RICO violation that referenced the narcotics trafficking offense originally alleged in count six.

The defense against the allegations in count six remains valid due to the incorporation of racketeering act four into this count. Hunt attempts to differentiate count six from racketeering act four by arguing that the latter only refers to 21 U.S.C. 841, implying he was charged under RICO only as a principal, while count six includes 18 U.S.C. 2, which addresses aiding and abetting. However, count one also referenced 18 U.S.C. 2 for the entire RICO charge, rendering Hunt's distinction incorrect. The district court found that Hunt's name was inadvertently omitted from count six in the redacted indictment, and its subsequent restoration did not prejudice him.

Regarding RICO, it prohibits individuals associated with an enterprise that affects interstate or foreign commerce from participating in its affairs through racketeering activity. Defendants argue that jury instructions on RICO were flawed due to recent Supreme Court rulings, specifically concerning the participation and interstate commerce requirements. While agreement exists on the participation element's misstatement, no grounds for reversal are found.

The district court's jury instruction stated that the government must show the defendant conducted or participated in the enterprise's affairs, defining participation broadly to include necessary acts for the enterprise's operation, even without management involvement. Coleman and Robinson contested this instruction based on the Supreme Court's decision in Reves v. Ernst & Young, which clarified that to be liable under RICO, one must participate in the operation or management of the enterprise. The Reves ruling established that while direct management involvement is not necessary, some level of participation in directing the enterprise's affairs is required for liability under RICO.

RICO liability is not restricted to those with primary responsibility or upper management, as clarified by the Court, which indicated that lower-rung participants can also operate within an enterprise under the direction of upper management. The Court refrained from defining the full extent of RICO's reach down the operational hierarchy. In previous cases, an instruction similar to the one in this case was deemed erroneous due to failure to align with the Reves standard, yet such errors are not grounds for automatic reversal. If defendants objected to the erroneous instruction, the court may find the error harmless based on their roles and the evidence presented. Conversely, if no objection was made, the instruction is reviewed for plain error affecting substantial rights. In United States v. Viola, the trial court's jury instruction—which suggested a person could participate in an enterprise without managerial roles or profit-sharing—was identified as plain error. The case involved Michael Formisano, a janitor with minimal involvement in a drug and stolen property ring, whose lack of substantial evidence linking him to the enterprise led to the conclusion that he was hardly implicated in the conspiracy.

Formisano was not on the ladder but was instead sweeping the floor beneath it, leading to the reversal of his RICO conviction due to insufficient evidence. In contrast, the current case has ample evidence regarding Coleman and Raymond Robinson's significant roles within the Supreme Team, thus rendering any instructional error harmless. Coleman managed operations at multiple drug locations and was identified as a lieutenant, while Robinson, despite a shorter tenure, played a critical role by arranging drug purchases, providing security, and overseeing cocaine processing. Both met the participation standard established by Reves, indicating that the jury was not influenced by any errors in jury instructions.

The same conclusion applies to six defendants from the Miller Trial, each holding substantial responsibilities in the Supreme Team's operations. Miller was the leader, Arroyo was second-in-command, and others managed retail operations and security, with notable actions such as Hunt's shooting of Rivera, demonstrating their involvement. The erroneous jury instruction was deemed harmless and not plain error.

Regarding the RICO statute's connection to interstate commerce, the trial court instructed the jury that the government must prove beyond a reasonable doubt that the enterprise’s conduct affected interstate commerce, clarifying that defendants need not be aware of this effect, and even minimal impacts suffice. The court later reiterated that the enterprise's activities, including purchasing supplies, could satisfy this requirement. Defendants argued that these instructions fell short of the standards set by the Supreme Court in United States v. Lopez, which addressed Congressional power over gun regulations near schools; however, the court found no merit in this claim.

The Court determined that the statute in question exceeded the federal government's authority under the Commerce Clause, as the activity involved was unrelated to commerce or economic enterprise. This ruling was consistent with previous cases that upheld regulations of activities connected to commercial transactions affecting interstate commerce. The Court affirmed that a general regulatory statute's substantial relation to commerce diminishes the relevance of individual instances that may have a minimal effect on it. The principle established in the Lopez case remains that if Congress deems an activity significantly connected to interstate commerce, the government need only demonstrate a de minimis impact for regulation to be valid.

In subsequent cases, including those involving narcotics trafficking, it was emphasized that the classification of certain intrastate activities, such as personal marijuana cultivation, as having minimal effects on interstate commerce is legally inconsequential. Specifically, narcotics trafficking was recognized as inherently affecting interstate commerce regardless of the local nature of individual conspiracies. In the case at hand, Miller, convicted of racketeering, narcotics conspiracy, and continuing criminal enterprise (CCE), contested his RICO conviction on three grounds: the legitimacy of criminal facilitation of murder as a RICO predicate, the sufficiency of evidence linking him to the murder and the Supreme Team enterprise, and errors in the sentencing calculation under federal guidelines. The court upheld the instructions regarding the interstate commerce element, affirming that the narcotics trafficking enterprise sufficiently impacted interstate commerce.

Under the Double Jeopardy Clause, the defendant contends he cannot be convicted of both narcotics conspiracy and Continuing Criminal Enterprise (CCE), but the court finds merit only in this contention. The Racketeer Influenced and Corrupt Organizations (RICO) Act defines "racketeering activity" to include acts involving murder as punishable under state law. The indictment against Gerald Miller alleges he aided in the murder of Isaac Bolden by providing means and opportunity, constituting a violation of New York Penal Law sections 115.05 and 20.00. Miller argues that criminal facilitation should not be considered an act involving murder, as it does not require intent to commit murder nor classify facilitation as a violent felony. The court rejects this argument, emphasizing that RICO encompasses any act concerning murder, not necessarily requiring the act itself to be murder. The definition of "involve" allows for acts that directly concern murder, and prior rulings indicate that conspiracy to murder qualifies as racketeering activity under RICO. Miller is charged under New York Penal Law for criminal facilitation, which involves aiding someone intending to commit a class A felony, such as murder.

A Class C felony, such as facilitation, carries a punishment of 1 to 15 years of imprisonment under New York law. To hold an individual liable as an accessory, they must intentionally aid the perpetrator in committing the underlying offense, which could include murder. The conduct of providing information to facilitate a murder qualifies as an act related to murder, thus making such facilitation a proper predicate act under the Racketeer Influenced and Corrupt Organizations (RICO) Act.

Establishing criminal facilitation of murder as a RICO predicate requires the government to demonstrate both the defendant's actions per the facilitation statute and a nexus between those actions and the criminal enterprise. This relationship is satisfied if the offense relates to the enterprise’s activities or if the defendant's position within the enterprise enabled the offense.

Miller argues he lacked knowledge that his actions would facilitate a murder and contends that the government failed to prove that providing an address was linked to the Supreme Team's activities rather than being a personal favor. In reviewing evidence supporting Miller's conviction, the standard requires the evidence to be viewed favorably towards the government, considering all inferences and evaluating evidence cumulatively rather than in isolation, establishing a high burden for the defendant in challenging the sufficiency of the evidence.

In cases of conflicting testimonies, deference is given to the jury’s assessment of evidence weight and witness credibility. A conviction should be upheld if the jury could reasonably conclude the defendant was guilty beyond a reasonable doubt based on the overall record. The evaluation of evidence weight is for the jury, not grounds for appellate reversal. 

In this instance, evidence showed that the Nichols organization was robbed by the Bolden brothers, prompting Nichols to seek Miller's help in locating them. Testimony indicated that Miller requested addresses from Supreme Team security chief Ernesto Piniella, who obtained this information through accomplices in the Parole Division. Handwritten notes with relevant addresses were discovered in an apartment tied to the Supreme Team, confirming Miller's involvement. Although there was uncertainty about which accomplice provided certain information, it was clear that all information was requested by Miller, which he then relayed to Nichols. 

Isaac Bolden was subsequently shot near his mother’s house. The jury was tasked with determining the relevance of the information Miller provided, with the understanding that Nichols was incarcerated at the time of the murder. Miller’s assertion that he doubted Nichols intended to kill Bolden was a point for jury consideration. 

Evidence suggested Miller was aware of Nichols's animosity toward the Boldens for alleged thefts and the violent history of both organizations. Testimony from Ina McGriff indicated that upon learning of Isaac Bolden's murder, Miller reacted with a smirk, suggesting he anticipated the outcome of providing the information. 

Miller's claim that he acted merely as a favor to Nichols, separate from the Supreme Team's interests, was likely to be dismissed by the jury, as there was an established business connection between the two organizations. The jury could infer that Miller's assistance was motivated by the desire to maintain a favorable relationship with a key supplier of cocaine.

Miller's connection to the Supreme Team and his leadership role allowed for the inference that he had access to corrupt public employees capable of obtaining necessary addresses, supporting the jury's conclusion that he criminally facilitated Isaac Bolden's murder as part of the Supreme Team's criminal enterprise. During sentencing for his RICO conviction, the district court applied the Guidelines for aiding and abetting first-degree murder, which prescribes a life sentence. Miller contested this, arguing that the state offense of murder facilitation does not require intent for murder, while aiding and abetting does, making it an inappropriate guideline for his case. The court, however, maintained that for RICO violations, the Guidelines instruct using the higher offense level between 19 or that applicable to the underlying racketeering activities. The commentary clarifies that if state law is violated, the closest federal offense guideline should be applied. The district court acknowledged the distinctions between criminal facilitation under New York law and aiding and abetting but determined that aiding and abetting closely resembled the offenses charged against Miller, justifying its use for sentencing. The court's application of the guideline is afforded deference, and any sentence lacking a specific guideline will only be overturned if deemed plainly unreasonable.

The most relevant guideline for Mr. Miller's offense is aiding and abetting a murder, as determined by the district court. Miller argues against his dual convictions for conspiracy to distribute narcotics and conducting a continuing criminal enterprise (CCE), claiming this violates the Double Jeopardy Clause. Citing the Supreme Court's decision in Rutledge v. United States, which established that a guilty verdict for a CCE charge inherently includes a finding of conspiracy, the court agrees with the government that Miller's conspiracy conviction should be reversed and dismissed. Historically, prior practice allowed for dual convictions but, following Rutledge, the court now mandates the dismissal of one conviction. Miller's assertion that his CCE conviction should also be overturned due to the conspiracy being an improper predicate is rejected, as a lesser included conspiracy can validly serve as a predicate for a CCE conviction. Other arguments presented by defendants regarding procedural and evidentiary issues, including the denial of severance motions, are found to be without merit, reaffirming the preference for joint trials among co-defendants.

A motion for severance should be granted only if there is a significant risk that a joint trial would undermine a defendant's specific trial rights or hinder the jury's ability to reliably assess guilt or innocence. Evidence admissible in a joint trial of alleged coconspirators is not considered spillover or prejudicial if it pertains to the conspiratorial activities. A defendant contesting the denial of a severance motion must demonstrate severe prejudice amounting to a miscarriage of justice and prove that the denial was an abuse of discretion. The court's denial of severance in the case of defendants Tucker, Hale, Jimenez, and David Robinson was deemed appropriate, as all were indicted on conspiracy and racketeering counts, with evidence relevant to all defendants regardless of separate trials. The district court implemented limiting instructions to mitigate potential spillover effects, emphasizing individual consideration of each defendant’s charges. The jury's varied verdicts, including acquittals for all but David Robinson on multiple counts, indicated they followed these instructions. Furthermore, regarding David Robinson's postarrest statement, the court found no merit in his claim to suppress the statement due to alleged improper interrogation, affirming that Miranda warnings were not violated, as the record did not support his contention of an impermissible interrogation.

In Davis v. United States and related cases, it is established that an agent's statement to an arrestee regarding cooperation constitutes interrogation if it is unsolicited. If an arrestee invokes their right to counsel, any subsequent statements are admissible only if the arrestee initiated further communication and knowingly waived their rights. In the case of David Robinson, he argued that his admission to drug sales resulted from interrogation by FBI Agent David Recame, who suggested cooperation. However, Recame's reference to cooperation was not unsolicited, as it followed Robinson's own inquiries about potential charges and penalties. After being read his Miranda rights, Robinson indicated he did not wish to answer questions, yet later voluntarily stated he sold drugs to support his children. The district court found Recame's testimony credible over Robinson's denial and concluded that Robinson's admission, made after Miranda warnings and without further interrogation, was admissible. Additionally, the government acknowledged it failed to provide a document detailing drugs and money seized from Robinson's residence prior to the trial, violating Fed. R. Crim. P. 16.

David Robinson argues for the exclusion of a document, claiming that its admission warrants a new trial. However, the court maintains that it has broad discretion under Rule 16 regarding remedial actions for government nondisclosure. The court's decision will stand unless there is an abuse of discretion or substantial prejudice to the defendant. Substantial prejudice requires the defendant to show that the late disclosure adversely impacted trial strategy, rather than merely being damaging. In this case, the document was disclosed shortly before the government's final witnesses in the Miller Trial. The government explained that the delay was due to an inadvertent oversight in obtaining the document via a subpoena from the NYPD property clerk. Robinson's claim of prejudice centers on his inability to consult handwriting and fingerprint experts prior to the document's admission. However, the court found this argument insufficient, noting that Robinson could still present expert testimony during his defense and that a continuance could be entertained if necessary. The court ruled that Robinson was not substantially prejudiced, as he continued to pursue his strategy of demonstrating his impoverished living conditions, which included presenting photographic evidence and witness testimony. Furthermore, the government did not contend that Robinson personally retained the money referenced in the document, indicating no direct link to his defense argument. Thus, the court concluded that the delay in disclosure did not substantially prejudice Robinson's case.

The district court initially decided to admit evidence against Hale but required redaction to remove references to his codefendants. Ultimately, the court excluded the statements entirely. Defendants argue that they were prejudiced by the timing of this decision and prior trial events. Hale claims prejudice arose when his attorney anticipated the introduction of statements and elicited testimony from NYPD Lieutenant Crowe regarding Hale's drug addiction, intending to argue that this impacted Hale's capacity to make statements. However, Crowe's testimony was deemed immaterial since other witnesses had already testified about Hale's drug use. Furthermore, Hale's attorney brought up outstanding arrest warrants, which was also considered non-prejudicial as other witnesses confirmed Hale's incarceration.

The other defendants argued that their Confrontation Clause rights were violated by Detective Ryan's testimony, which mentioned an arrestee wanting to provide information about the Supreme Team. The court instructed the jury to disregard this testimony, and the subsequent exclusion of Hale’s statements mitigated any potential violation.

Regarding the admissibility of evidence related to violent acts, the government presented evidence of killings by the Supreme Team, including one involving Hale. Defendants claimed this evidence should be excluded because the murders were not included in the indictment, citing Fed. R. Evid. 404(b). However, the court disagreed, stating the evidence was relevant to demonstrate the existence of the RICO enterprise linked to the conspiracy charge in the indictment, thus qualifying as direct evidence rather than "other" acts. Acts in furtherance of the conspiracy are not considered “other” acts under Rule 404(b) but are integral to the charges presented.

The district court determined that evidence of uncharged murders was relevant to illustrate the enterprise's existence and the conspiracy's nature, finding that its probative value was not significantly outweighed by potential unfair prejudice, as per Federal Rule of Evidence 403. This determination is subject to review solely for abuse of discretion, which was not present in this case. The jury's decision, which did not convict the defendants for all violent acts alleged, indicated no improper use of the evidence. 

Regarding claims of improper summation, defendants sought a new trial based on alleged inappropriate statements made by the government during closing arguments. They argued that the government improperly enhanced the credibility of cooperating witnesses by suggesting the trial judge would intervene if their testimony was untruthful. Additionally, defendants Coleman and Raymond Robinson contended the Assistant U.S. Attorney (AUSA) improperly expressed personal belief in their guilt. 

The court clarified that while a prosecutor may not personally vouch for evidence, the comments made by the AUSA were not equivalent to such misconduct. The court emphasized that prosecutorial misconduct must be severe enough to deny a fair trial to warrant reversal, and isolated transgressions do not typically merit such action. The jury's acquittal on some counts further suggested that the trial was fair. The AUSA's statements regarding witness sentencing were deemed permissible, as they did not directly imply the judge’s belief in the witnesses’ truthfulness but rather indicated that the judge would consider their credibility during sentencing.

No objections were raised regarding the AUSA’s statement in the district court, and no error was identified. The AUSA claimed during the Coleman Trial that the defendants were “guilty on all counts” after a thorough examination of the evidence, suggesting this was an encouragement for the jury to reach a verdict based on the evidence presented. Given the strong evidence of guilt and the jury's partial acquittal, the challenged statement is deemed to have had no effect on the jury's decision.

In terms of sentencing, various challenges made by defendants lack merit. Their argument against the 100:1 crack cocaine/powder ratio guideline is dismissed based on previous rulings, noting that the 1995 Sentencing Commission Report did not alter Circuit precedent. The district court cannot adjust sentences based on disparities between crack and powder cocaine offenses. Other challenges pertain to factual findings from sentencing related to the quantity of drugs, credibility of testimony, and firearm use, all of which can be determined by a preponderance of evidence. The court's factual findings are subject to a clear error review, and drug quantities may be approximated when actual amounts are not indicative of the offense scale. Additionally, any narcotics transactions known or foreseeable to a defendant in a conspiracy can be attributed to them for sentencing calculations.

Defendants Hale and Hunt challenged their sentences, arguing that the district court improperly attributed 15 kilograms of crack cocaine to them. However, evidence indicated that during their involvement with the Supreme Team, the gang regularly obtained kilogram amounts of cocaine for conversion to crack, generating substantial daily sales. The court found that even a smaller quantity would not have altered their sentences, given their base offense level of 38, which requires only 1.5 kilograms of crack for that level. Evidence included wiretaps of Hale discussing drug activities and their involvement in a violent incident against rival suppliers.

Defendant Jimenez received an increased offense level for attempting to obstruct justice through false testimony at trial. The court found no error in this determination. Similarly, Hunt faced an enhancement for presenting false alibi witnesses. Disputes over the accuracy of records showing Hunt's presence in New York were dismissed by the court, which found credible supporting testimony.

Jimenez also contested an enhancement for firearm use in the conspiracy, arguing that it was improper based on the presentence report and his acquittal in related murder charges. The court clarified that it is not bound by the presentence report and can consider any evidence from the trial, even if insufficient for a criminal conviction. The court concluded it had sufficient evidence to establish Jimenez's firearm possession related to the drug conspiracy.

Ultimately, all defendants' appeals were rejected, with the exception of Miller's double jeopardy claim regarding a specific count, which was remanded for correction. All other convictions were affirmed.