United States v. Burden

03-1727-cr
U.S.A. v. Boyd (Burden)
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: May 9, 2008 Decided: March 31, 2010

Docket No. 03-1727-cr-LEAD, 03-1728-cr-XAP, 03-1729-cr-CON,
03-1779-cr-CON, 04-2737-cr-CON, 06-0519-cr-CON, 06-2375-cr-
CON
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UNITED STATES OF AMERICA,

Appellee-Cross-Appellant,

v.

DAVID L. BURDEN, ALSO KNOWN AS QUINTEN, ALSO KNOWN AS
SID, KELVIN BURDEN, ALSO KNOWN AS WAFFLE, ALSO KNOWN AS
UNCLE, ALSO KNOWN AS UNC, JERMAIN BUCHANAN, and DAVID
M. BURDEN,

Defendants-Appellants-Cross-Appellees,

TERRENCE BOYD,

Defendant-Appellant.

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Before: HALL, LIVINGSTON, and JOHN R. GIBSON,* Circuit Judges.

Appeal from judgments of the United States District Court

for the District of Connecticut (Janet C. Hall, District Judge,

presiding), entered on November 13, 2003, December 5, 2003,

January 23, 2004, April 15, 2004, and June 3, 2004, following

jury trial verdicts for David L. Burden, Kelvin Burden, Jermain

*
The Honorable John R. Gibson, Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Buchanan, and David M. Burden, and a plea of guilty by Terrance1

Boyd on RICO and VCAR counts. We affirm in part and remand for

resentencing.

KEVIN J. O’CONNOR, United States
Attorney, STEPHEN B. REYNOLDS, HAROLD H.
CHEN, SANDRA S. GLOVER, Assistant United
States Attorneys, for Appellee-Cross-
Appellant.

ROBERT M. FROST, JR., ZELDES, NEEDLE &
COOPER, P.C., for Defendant-Appellant-
Cross-Appellee, David L. Burden.

JOSEPH A. BONDY, The Law Offices of
Joseph A. Bondy, for Defendant-
Appellant, Kelvin Burden.

JEREMIAH DONOVAN, WILLIAM T. KOCH, JR.,
for Defendant-Appellant-Cross-Appellee,
Jermain Buchanan.

TIMOTHY P. ASPINWALL, for Defendant-
Appellant, David M. Burden.

FRANCIS L. O’REILLY, for Defendant-
Appellant, Terrence Boyd.

JOHN R. GIBSON, Circuit Judge.

This appeal arises out of a twenty-five count indictment

alleging that the defendants were part of the Burden

Organization, a racketeering enterprise engaged in the

distribution of cocaine and cocaine base that also undertook

violent acts to promote the enterprise’s drug trafficking.

1
The indictment and Buchanan’s briefs on appeal refer to him
as “Jermain.” The indictment and Boyd’s briefs on appeal refer
to him as “Terrance.” We assume both are correct and we direct
the Clerk of the Court to amend the official caption to conform.

2
Defendants David L. Burden, Kelvin Burden, Jermain Buchanan, and

David M. Burden were convicted by a jury following a month-long

trial on multiple counts including violations of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.

§1962, the Violent Crimes in Aid of Racketeering statute

(“VCAR”), 18 U.S.C. § 1959, and conspiracy to distribute cocaine

and cocaine base. They challenge whether the murder and

attempted murder of those they believed to be responsible for the

death of a family member were sufficiently related to the

enterprise alleged in the indictment, or were performed for the

purpose of maintaining or improving their position in the

enterprise, such that the murder and attempted murder could form

the basis for the RICO and VCAR convictions. All four defendants

also allege that the government’s summation was unfairly

prejudicial, and each defendant raises individual issues as well.

The remaining defendant on appeal, Terrence Boyd, pleaded guilty

to one count of possessing with intent to distribute and

distributing cocaine base. He alleges that the district court

unreasonably declined to resentence him on remand. We address

each argument in turn.

Background

Terrence Boyd, Jermain Buchanan, and Kelvin, David M., and

David L. Burden were among a group of people who trafficked

cocaine and cocaine base in Norwalk, Connecticut from 1997 until

3
2001. Kelvin Burden supervised the operation. He had sources

who supplied him with kilogram quantities of cocaine and cocaine

base, he cooked the cocaine and repackaged the drugs for street-

level sales, and over time he began coordinating distribution of

the drugs to a number of street dealers. He lived at 27 Lincoln

Avenue, where the narcotics activity took place, members of the

group congregated, and weapons were stored. The government

referred to it as “the stash house.” Other members of Kelvin’s

family also lived there from time to time during this period.

Kelvin was incarcerated twice during 2000, but he continued to

direct operations from jail.

Beginning in 1998, the group’s activities expanded to

include violent acts used to promote its narcotics business and

strengthen the organization’s power. Two separate disputes

erupted. The first was with members of the “Hill Crew,” a group

of people from the Hill section of Norwalk who were also involved

in drug trafficking. This dispute began in January 1998 when

Willie Prezzie, a friend and relative of Kelvin, was attempting

to collect on a drug debt from Hill Crew member Shaki Sumpter.

The debt arose when Prezzie fronted Shaki some drugs for street-

level distribution and Sumpter failed to pay for them. Sumpter

arranged to meet Prezzie and Jermain Buchanan, purportedly to

repay the debt. When they met, Buchanan and Prezzie were in a

car along with Sean Burden and Demetrius Story. Buchanan was

4
driving. Sumpter and fellow Hill Crew member Rodrick Richardson

approached the car, both with guns pointed, and tried to rob

Prezzie of money and marijuana. As Buchanan drove away, Sumpter

and Richardson fired shots at the car. Sean Burden was struck by

the gunfire but not killed.

When Prezzie told Kelvin about the incident, Kelvin wanted

to retaliate. He gave weapons stored at the Lincoln Avenue house

to Buchanan and David M. Burden (also known as “DMX”), who went

with Prezzie in search of Richardson and Sumpter. They were not

able to find them, so members of the Burden Organization did

nothing more at the time. However, two months later there was an

exchange of gunfire between members of the Organization and the

Hill Crew outside of the Lincoln Avenue house.

The second dispute was with Marque Young, a drug dealer to

whom Kelvin had been supplying crack cocaine for resale. Kelvin

became upset with Young in May 1998 when Terrence Burden was

injured in a fight and six days later his brother Sean was shot

and killed. Although Young was not directly involved in either

incident, he was present at both and Kelvin held him responsible

for Sean’s fatal shooting. Over the next several weeks Young

exchanged taunts and insults with Kelvin, Jermain, and other

members of the Burden family, and Kelvin and other members of the

organization planned but never carried out acts of retaliation.

Ultimately, though, on July 1, 1999, Jermain Buchanan and another

5
person carried out a drive-by shooting in front of Young’s house

where Young and Derek Owens were sitting in Young’s car. Owens

was killed and Young was wounded such that he is now a

paraplegic.2

The violence between the Burden Organization and the Hill

Crew resurfaced in June 1999. Richardson, who had been involved

in the attempted robbery of Prezzie a year and a half earlier,

was at a bar known for drug trafficking at the same time Kelvin

was there. Richardson began chastising Kelvin for failing to

avenge his brother Sean’s death, accusing him of going on with

his business and spending money on a Mercedes Benz instead of

worrying about who killed his brother. Richardson was outside

the same bar the next night when Buchanan came running toward him

and shot him. A bullet hit Richardson in the elbow, paralyzing

his arm. A month or two later, David L. Burden (known as “QB”)

got in a dispute with Terra Nivens, a Hill Crew member, over

Nivens’s relationship with QB’s sister. Opposing members of the

Burden Organization and the Hill Crew gathered and began facing

off, threatening and taunting each other. St. Clair Burden said

he wanted to return to the Lincoln Avenue house to get his gun,

and Mike Dawson, a Hill Crew member, stepped in and started

firing shots into the car in which Kelvin was riding. A bullet

from Dawson’s gun struck Kelvin in the chest.

2
Buchanan was acquitted in Connecticut state court of
wounding Young and murdering Owens.

6
 Several additional instances of violence occurred between

the Burden Organization and the Hill Crew in late 1998 and early

1999, most frequently involving members of the two groups

shooting at each other with both sides vowing revenge.

Ultimately, the violence ended when key members of the Hill Crew

moved away or were incarcerated.

In connection with these incidents, the Burdens, Buchanan,

and Boyd were charged in this multi-count indictment. All but

Boyd were tried by a jury. Boyd entered a plea of guilty. The

jury returned guilty verdicts on many of the counts. All four

trial defendants were acquitted of Count Eleven, which charged

VCAR attempted murder of Richardson, Hatton, and other members of

the Hill Crew on October 10, 1999. The Burdens and Buchanan were

all charged with and convicted of the substantive RICO count.

Those four individuals were charged with various combinations of

ten racketeering acts. The jury found the government proved

seven racketeering acts for Kelvin Burden: drug conspiracy (Act

1); conspiracy to murder Rodrick Richardson (Act 2A); attempted

murder of Rodrick Richardson on June 27, 1999 (Act 2C);

conspiracy to murder Marque Young (Act 3A); attempted murder of

Marque Young (Act 3B); murder of Derek Owens (Act 4); conspiracy

to murder members of the Hill Crew from in or about August 1999,

until on or about October 10, 1999 (Act 5A); and attempted murder

of members of the Hill Crew on September 3, 1999 (Act 5B).

7
Kelvin was also found guilty of RICO conspiracy (Count Two); VCAR

conspiracy to murder Rodrick Richardson in or about June 1999

(Count Three); VCAR attempted murder of Rodrick Richardson on

June 27, 1999 (Count Five); VCAR conspiracy to murder Marque

Young (Count Six); VCAR attempted murder of Marque Young (Count

Seven); VCAR murder of Derek Owens (Count Eight); VCAR conspiracy

to murder members of the Hill Crew (Count Nine); VCAR attempted

murder of Fred Hatton and other members of the Hill Crew on

September 3, 1999 (Count Ten); conspiracy to possess with intent

to distribute and to distribute 5 kilograms or more of a mixture

containing a detectable amount of cocaine, and 50 grams or more

of a mixture or substance containing a detectable amount of

cocaine base (Count Twelve); and possession with intent to

distribute and distributing 5 grams or more of a mixture or

substance containing a detectable amount of cocaine base (Count

Fourteen). Kelvin was sentenced to life in prison.

Jermain Buchanan’s RICO conviction was based on six

racketeering acts, Acts 1, 2A, 2C, 3A, 3B, and 4. He was also

convicted of Counts Two, Three, Five, and Twelve. Buchanan was

sentenced to life in prison. David “DMX” Burden was convicted of

racketeering based on Acts 1, 5A, and 5B. He was also convicted

of Counts Two, Nine, Ten, and Twelve; four counts of narcotics

distribution; and possession of a firearm during a drug

trafficking crime (Count Seventeen). DMX was sentenced to 352

8
months in prison. David “QB” Burden’s RICO conviction was based

on racketeering Acts 1,5A, and 5B. He was also convicted of

Counts Two, Nine, Ten, and Twelve. QB received a sentence of 210

months’ imprisonment.

The district court denied the motions for judgment of

acquittal or new trial filed by David L. Burden, Kelvin Burden,

Jermain Buchanan, and David M. Burden. Each filed a timely

notice of appeal. Boyd was sentenced to 188 months’ imprisonment

and five years of supervised release following his guilty plea,

and he too filed a timely notice of appeal. Following the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), and this Court’s decision in United States v. Crosby, 397

F.3d 103 (2d Cir. 2005), we remanded the cases of DMX Burden, QB

Burden, and Jermain Buchanan upon the government’s motion for

possible resentencing and we sua sponte remanded Terrence Boyd’s

case. The government filed no Crosby motion with respect to

Kelvin Burden because he had received a mandatory life sentence.

The district court declined to resentence QB, Buchanan, and Boyd,

but did hold a resentencing for DMX where he received a 264-month

sentence, a reduction of 88 months. The appeals were reinstated

and we now consider the issues they raise.

9
 I.

The trial defendants allege that the government failed to

introduce sufficient evidence that they operated and managed a

continuous enterprise engaged in a pattern of racketeering

activity to support their convictions on the RICO and VCAR

counts. They assert that the evidence showed no more than a

group of people who sold drugs together, and did not show a well-

defined organization with the requisite continuity or structure

to constitute an enterprise. Simply stated, their argument is

that the racketeering acts alleged in the indictment were

attributable to various individuals, acting alone or with others,

trying to settle personal beefs. Thus, they dispute that the

evidence showed a pattern of racketeering activity because the

individuals’ actions were not related to activities of an

enterprise.3 Finally, they submit that the evidence failed to

demonstrate that the trial defendants participated in the

operation or management of an enterprise. We review a challenge

to the sufficiency of the evidence by considering the evidence in

the light most favorable to the government, giving credit to

every inference the jury might have drawn in the government’s

favor. United States v. Dhinsa, 243 F.3d 635, 648 (2d Cir.

2001). We will affirm if any rational finder of fact could have

3
Kelvin Burden also argues that the evidence does not show a
pattern of racketeering activity because the acts were not
related to each other.

10
found the essential elements of the crime beyond a reasonable

doubt. Id. at 649. The weight of the evidence is not for us to

consider, and thus any lack of corroboration is irrelevant

because that speaks to the weight and not the sufficiency of the

evidence. See United States v. Hamilton, 334 F.3d 170, 179 (2d

Cir. 2003).

A RICO conviction requires the government to prove that the

defendant participated or conspired to participate, directly or

indirectly, in the conduct of an enterprise through a pattern of

racketeering activity. United States v. Allen, 155 F.3d 35, 40

(2d Cir. 1998).

A.

A RICO enterprise is “a group of persons associated together

for a common purpose of engaging in a course of conduct,” proved

by “evidence of an ongoing organization, formal or informal, and

by evidence that the various associates function as a continuing

unit.” United States v. Turkette, 452 U.S. 576, 583 (1981). An

enterprise is an entity. Id. The trial defendants assert that,

while the evidence showed that some members of the Burden family

and a few of their friends were part of a group that bought and

sold drugs, the group lacked the structure required of an

enterprise. They assert that no hierarchy was in place, which

they contend argues against the existence of an enterprise. They

11
also argue that the group lacked continuity because the alleged

head of the organization, Kelvin Burden, was incarcerated twice

during the time the enterprise is alleged to have existed.

The district court recognized the limitations of the

evidence in this case. It noted that “[t]here was evidence to

suggest that the Burden narcotics organization was not very

structured, particularly in contrast to descriptions of other

organizations contained in a number of Second Circuit opinions

involving organized narcotics operations that also engaged in

acts of violence and other criminal activities.”4 In addition,

the district court pointed out that the evidence was “somewhat

contradictory” but sufficient for a jury to reasonably conclude

that the Burden organization had a “quasi-hierarchical

structure.”

Our deferential review, in which we make no credibility

determinations, leads us to conclude that sufficient evidence

exists to support the jury’s finding that the Burden Organization

constituted an enterprise. The Organization had multiple members

who joined in the shared purpose of selling drugs and promoting

such sales. They had a meeting place, the Lincoln Avenue house,

where they were able to traffic drugs out of the public’s eye,

stored guns, and planned the violent acts they undertook. These

4
The district court cited United States v. Diaz, 176 F.3d 52
(2d Cir. 1999), and United States v. Concepcion, 983 F.2d 369 (2d
Cir. 1992).

12
activities were orderly because there was a hierarchical

structure in place. Kelvin was the head of the Organization,

controlling the flow of cocaine and cocaine base, organizing acts

of violence, recruiting members, and directing members’

activities. One witness described him as the “mastermind.”

Kelvin gave orders to Lavon Godfrey, a dealer who looked to

Kelvin as his sole supplier. Kelvin asked Anthony Burden to

serve as DMX’s protector on the street, and he sold narcotics

that were delivered by St. Clair, DMX, and Buchanan. According

to Anthony Burden, a cousin to all four trial defendants, DMX was

a lieutenant who distributed drugs to street dealers who sold

narcotics for the Burden Organization. QB was a seller who also

used guns when called upon to do so. Buchanan was an enforcer

and a dealer. Anthony referred to the Burden Organization, of

which he was a member, as the “Cream Team.”

The record also contains evidence of other organizational

structures. Although Kelvin orchestrated retaliatory acts of

violence in response to the shooting of Sean Burden in January

1998, Sean’s murder in May 1998, and the shooting of QB in

October 1999, other violence occurred after a number of members

of the Organization agreed to it. For instance, Lavon Godfrey

testified that DMX, QB, St. Clair, and member Donny Thigpen

jointly agreed to retaliate against members of the Hill Crew

after Andre McClendon was shot. St. Clair Burden announced that

13
he was going to terrorize Hill Crew members after Kelvin was

shot. In the spring of 1999, Kelvin said that Richardson was the

heart of the Hill Crew and needed to be dealt with sooner or

later. When Buchanan told Lavon Godfrey that he had shot

Richardson in June 1999, Kelvin said it was about time he did

something. Later that summer, Godfrey heard DMX saying that they

had “shot up the Hill.”

The fact that there were different styles of organization

between the narcotics business and the violent acts does not

negate the jury’s finding that the defendants were part of an

enterprise. Boyle v. United States, 129 S.Ct. 2237, 2245 (2009).

An established hierarchy is not essential to the existence of an

enterprise. Id. (“[A]n association-in-fact enterprise . . . need

not have a hierarchical structure or a ‘chain of command’. . .

.”); see, e.g., United States v. Mazzei, 700 F.2d 85, 87 (2d Cir.

1983) (group of players and bettors who conspired to fix

basketball games constituted a RICO enterprise). We are mindful

that “the existence of an association-in-fact is oftentimes more

readily proven by what it does, rather than by abstract analysis

of its structure.” United States v. Coonan, 938 F.2d 1553, 1559

(2d Cir. 1991) (internal quotations and emphasis omitted). In

this case, the drug operation and organized violence were fruits

of an enterprise.

Although Kelvin and others argue that his two instances of

14
incarceration during the year 2000 interrupted the continuing

nature of the enterprise, the record reveals that he continued to

direct operations from jail. Although Kelvin had been the cook,

Willie Prezzie took over that responsibility. Kelvin told

Prezzie how to dole out the drugs to DMX for distribution, and

Anthony looked out for DMX during that time. Neither Anthony nor

DMX contacted the Organization’s suppliers while Kelvin was

incarcerated because it was not their role to do so. When Kelvin

was released, the Organization’s drug sales increased and Anthony

was able to return to selling, but the operations had in no way

ceased while Kelvin was away. A period of quiescence in an

enterprises’s course of conduct does not exempt the enterprise

from RICO. Boyle, 129 S.Ct. at 2245. We conclude that the

members functioned as a continuing unit.

B.

The trial defendants next assert that the government failed

to introduce sufficient evidence that the predicate acts alleged

in the racketeering counts formed a pattern of racketeering

activity. The government must prove both that an enterprise

exists and that the conduct in furtherance of the enterprise

comprises a pattern. While the RICO enterprise is an entity, the

“pattern of racketeering activity” is “a series of criminal acts

as defined by the statute.” Turkette, 452 U.S. at 583. Such

15
conduct forms a pattern under RICO when it “embraces criminal

acts that have the same or similar purposes, results,

participants, victims, or methods of commission, or otherwise are

interrelated by distinguishing characteristics and are not

isolated events.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,

240 (1989) (quoting the pattern definition from the Dangerous

Special Offender Sentencing Act, 18 U.S.C. § 3575(e) (now

repealed), and adopting it for RICO). At least two predicate

acts are required to prove a pattern, and the acts must be

related and “amount to or pose a threat of continued criminal

activity.” United States v. Minicone, 960 F.2d 1099, 1106 (2d

Cir. 1992) (quoting H.J. Inc., 492 U.S. at 239). The

requirements of relatedness and continuity protect defendants

from RICO charges based on isolated or sporadic criminal acts.

United States v. Diaz, 176 F.3d 52, 93 (2d Cir. 1999). The trial

defendants challenge the horizontal5 and vertical relatedness and

the alleged continuity of the activity.

Horizontal relatedness requires that the racketeering

predicate acts be related to each other. However, that

relationship need not be direct; an indirect relationship created

by the relationship of each act to the enterprise will suffice.

5
DMX and QB Burden have conceded that the jury had a basis
upon which to find horizontal relatedness. Both defendants
made that concession in their new trial motions before the
district court, and QB Burden repeated it in his brief before
this court.

16
United States v. Polanco, 145 F.3d 536, 541 (2d Cir. 1998) (“A

predicate act is related to a different predicate act if each

predicate act is related to the enterprise.”). Vertical

relatedness means that the acts are related to the enterprise.

It requires that the defendant was enabled to commit the offense

solely because of his position in the enterprise or his

involvement in or control over the enterprise’s affairs, or

because the offense related to the activities of the enterprise.

United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (per

curiam). Although the government must provide sufficient

evidence of each kind of relatedness, “both the vertical and

horizontal relationships are generally satisfied by linking each

predicate act to the enterprise. This is because predicate

crimes will share common goals . . . and common victims . . . and

will draw their participants from the same pool of associates

(those who are members and associates of the enterprise).” Id.

at 376.

The law also requires that the predicate acts reveal

continued racketeering activity or the threat thereof. Diaz, 176

F.3d at 93. “Continuity is both a closed- and open-ended

concept, referring either to a closed period of repeated conduct,

or to past conduct that by its nature projects into the future

with a threat of repetition.” H.J. Inc., 492 U.S at 241.

The district court concluded that the government had

17
successfully demonstrated a pattern of racketeering activity with

respect to each of the four trial defendants. While there is

some duplication of the predicate act counts on which they were

convicted, not all are the same. All four were convicted of

predicate Act 1, drug conspiracy, but they do not challenge the

existence of a pattern of racketeering activity with respect to

that act. The three Burdens were convicted of Acts 5A and 5B,

conspiracy to and attempt to murder members of the Hill Crew.

Kelvin and Buchanan were also convicted of Acts 2A and 2C,

conspiracy to and attempt to murder Rodrick Richardson; Acts 3A

and 3B, conspiracy to and attempt to murder Marque Young; and Act

4, the murder of Derek Owens.

Our review of the record leads us to the same conclusion;

sufficient evidence exists to support a finding that each of the

four trial defendants was engaged in a pattern of racketeering.

We reach this conclusion even though the violent acts in this

case are the type of conduct that the defendants could have

committed absent a connection to the enterprise. The government

advanced four theories of relatedness before the district court,

and it repeats them on appeal. The government asserts that the

Hill Crew members were significant drug traffickers in the

Carlton Court/Hill section of Norwalk and their continued success

was inconsistent with the Burden Organization’s success. Second,

the government points to the genesis of the beef with the Hill

18
Crew as Richardson’s failure to pay Prezzie for crack cocaine and

Richardson’s acts of violence when Prezzie and Buchanan tried to

collect the debt. Third, the government asserts that the Lincoln

Avenue house served as the intersection of drug activity

(storage, preparation, packing, and distribution) and violence

(storage of guns and planning violent acts). Finally, the

government contends that the relationship between the violence

and the Burden Organization’s drug trafficking was apparent from

evidence that its violent acts increased respect for the

Organization in the South Norwalk drug market.

The evidence does not support the theory that the Burden

Organization’s success in dealing drugs was enhanced by cutting

into the sales made by the Hill Crew. While there was testimony

that some members of the Hill Crew (including Richardson) dealt

crack cocaine, there was no evidence that they were dominant or

significant drug dealers.

It is possible, however, to credit the violence that

occurred in 1998 between Richardson and Sean Burden, Prezzie, and

Buchanan as being the genesis of the two groups’ disputes. Shaki

Sumpter, a Hill Crew member, owed a drug debt to Prezzie.

Sumpter and Richardson decided to rob Prezzie instead of paying

him. When they fired shots into the vehicle Prezzie was in they

struck Sean Burden, who was also in the vehicle along with

Buchanan. These shots were not fatal; Sean was killed in a later

19
incident. The taunts and retaliation began after this incident,

however. After Sean was killed, Richardson called Kelvin a

coward and chided him for buying an expensive car and going on

with his drug business instead of avenging his brother’s death.

Richardson, in turn, was shot.

With respect to the third theory, the fact that the acts of

violence were discussed at the same location where narcotics

activity took place does not in and of itself establish vertical

relatedness. There was no testimony to the effect that the

meetings at the Lincoln Avenue house were used to plan or

organize precise acts of violence.

Finally, the government argues that the following testimony

from Anthony Burden sufficiently establishes its theory that

violence enhanced the level of respect afforded the Burden

Organization in the South Norwalk drug market.

Q: Now, you indicated yesterday that between ‘97 –
well, between ‘97 and your arrest in 2001, you
held a certain position amongst this group, is
that accurate?
A: Yes.
. . .
Q: All right. And did this – you indicated the group
was organized?
A: Yes.
Q: All right. Was it important to you, in your
position, to have respect?
A: Yes.
Q: Okay. In your view, did you have respect on the
street?
A: Yes.
Q: And why was this important to you? Why was that
important, as far as it concerned this group?
A: Because if they don’t respect you, they just run

20
 all over you.
Q: What do you mean by that?
A: You give somebody an assignment, they don’t pay
it, hey, you ain’t getting paid. You got to have
respect for this.
Q: How do you earn respect?
A: You know, beat a couple people up. Whatever.
Q: Can you earn respect by engaging in violence?
A: Yes.
Q: Does violence, as far as you understand, enhance your
image in the group?
A: Yes.
. . .
Q: Well, as far as you understand, were you expected
to do certain things on the street, to maintain
your reputation?
A: If it occurred, yes.
Q: And by engaging in and showing strength, did you
increase your prestige in the group? . . . [D]id
it enhance your reputation?
A: Yes.

The tenor of this colloquy suggests that a certain type of

persona is necessary to run and maintain a group of drug dealers

as an organization. It does not speak specifically to the reason

for violence towards Richardson, Young, and Owens. However,

looking at the record as a whole, we conclude that a jury could

reasonably find that the acts of violence were all vertically

related to the enterprise and its business of drug trafficking.

The targets of the violence were other drug dealers. Richardson

was the “heart” of the Hill Crew whom Kelvin said needed to be

dealt with. All of the charged acts were retaliation for a taunt

or an act of violence directed at a member of the Burden

Organization. For instance, after Kelvin was shot, another

member of the Burden family said he was going to “terrorize” the

21
Hill. The respect Anthony Burden spoke of is that which is

perhaps essential to running a drug dealing enterprise, and the

jury could reasonably have inferred that the charged acts of

violence were related to the enterprise because they were

conducted to protect the Burden Organization’s members and garner

them respect in the drug community. In addition, Kelvin was said

to hold Young responsible for Sean’s death, and the violence that

resulted in Young’s injury and Owens’s death was related to that

belief. In sum, the jury could reasonably have inferred that the

acts of violence were related to the enterprise. See United

States v. Simmons, 923 F.2d 934, 951-52 (2d Cir. 1991) (murders

were related to affairs of narcotics enterprise because they were

intended to help protect it from external challenges by

retaliating against aggression).

A pattern of racketeering also requires that “the predicates

themselves amount to, or . . . otherwise constitute a threat of,

continuing racketeering activity.” H.J. Inc., 492 U.S. at 240.

The trial defendants dispute the continuity of the charged acts,

but we conclude that the nature of the enterprise itself provided

sufficient evidence of its continuity. “Where the enterprise is

an entity whose business is racketeering activity, an act

performed in furtherance of that business automatically carries

with it the threat of continued racketeering activity.” United

States v. Indelicato, 865 F.2d 1370, 1383-84 (2d Cir. 1989). The

22
government established a link between the Burden Organization’s

narcotics activity and violence for the purpose of protecting and

furthering its narcotics business, and that provides sufficient

proof of the threat of continuing racketeering activity.

C.

DMX and QB Burden argue that insufficient evidence existed

that they conducted or participated in the affairs of the

enterprise, as is required for a RICO conviction. Case law holds

that this element means a defendant must participate in the

operation or management of the enterprise itself and play “some

part in directing the enterprise’s affairs.” Reves v. Ernst &

Young, 507 U.S. 170, 179 (1993). This does not mean, however,

that one must act in a managerial role. It is sufficient to be a

lower-level participant and still be liable for directing the

enterprise’s affairs if one “exercise[s] broad discretion” in

carrying out the principal’s instructions. United States v.

Diaz, 176 F.3d 52, 92 (2d Cir. 1999).

QB argues that he was on the periphery of the narcotics

conspiracy and that his involvement in the conspiracy and attempt

to murder members of the Hill Crew was unorganized and motivated

by personal revenge. DMX argues that no organization existed,

and even if it did, he was doing nothing more than taking orders.

The evidence supports the jury’s finding that both men

23
participated in the affairs of the enterprise. QB sold drugs, he

was part of the group (along with DMX) that decided how the

Burden Organization should retaliate for Andre McClendon’s

shooting and other retaliatory acts, he kept a gun in his bedroom

at the Lincoln Avenue house, and he allowed another Organization

member to borrow his gun when the member worried that Marque

Young might come after him.

DMX, who lived at the Lincoln Avenue house, was a key member

of the drug distribution network. He also helped funnel money

back to Kelvin and ultimately to Kelvin’s father, the keeper of

the proceeds. He was involved in at least two shooting incidents

with members of the Hill Crew. He and QB were part of a group

that left the Lincoln Avenue house after McClendon was shot.

When they returned, DMX said they had “shot up” the Hill and he

and QB identified which guns stored in the Lincoln Avenue house

they had used.

The jury could reasonably have inferred that both DMX and QB

Burden conducted or participated in the affairs of the

enterprise.

D.

Buchanan argues that the RICO violent acts of which he was

convicted occurred before an enterprise existed and thus his

conviction should be reversed. The shootings of Young and Owens

24
and the attempted murder of Richardson all took place in 1999.

The record reveals that sufficient evidence existed to support a

finding that the narcotics operation began in 1997, and

specifically that Buchanan was an “enforcer” for the Organization

during that year. We find no merit in his argument.

Buchanan further argues that the evidence was insufficient

to show that Richardson’s shooting was an attempt or a conspiracy

to murder him. He asserts that shooting someone in the elbow is

evidence of intent to wound and not to kill. We easily conclude

that the jury could reasonably infer that Buchanan’s acts of

pointing a handgun at Richardson, firing it in his direction, and

striking him in the front side of his arm constitute an intent to

kill.

II.

The trial defendants were all found guilty of one or more

VCAR counts in violation of 18 U.S.C. § 1959. A VCAR conviction

requires the government to prove that the organization was a RICO

enterprise, that the enterprise was engaged in racketeering

activity as defined by RICO, that each defendant had a position

within the enterprise, and that each committed the crime of

violence “‘for the purpose . . . of maintaining or increasing

[his] position in’ the enterprise.” See United States v.

Concepcion, 983 F.2d 369, 381 (2d Cir. 1992) (alteration in

25
original) (quoting § 1959). The trial defendants now challenge

the sufficiency of the evidence that they committed the violent

crimes of which they were convicted for the purpose of

maintaining and increasing their positions in the Burden

Organization.

This Court has rejected the notion that the “for the purpose

of” element must be the defendant’s sole or principal motive.

“We consider the motive requirement satisfied if the jury could

properly infer that the defendant committed his violent crime

because he knew it was expected of him by reason of his

membership in the enterprise or that he committed it in

furtherance of that membership.” Id. The jury could have

inferred the defendants’ motives from the testimony of several

witnesses. The first was Anthony Burden’s testimony that threats

and acts of violence, along with a general reputation for

violence, were essential to one’s success and enhanced a member’s

standing in the Burden Organization. He described an overall

climate of violence as integral to a member’s success in the

Organization. Kelvin was clearly the leader of the Organization.

Lavon Godfrey, who sold narcotics with the Burden Organization

from the spring of 1998 until the summer of 2001, testified that

Kelvin was the mastermind who began distributing to street

dealers in 1999. Kelvin made it clear that Godfrey could sell

only for his organization. While Kelvin was incarcerated during

26
2000, Anthony Burden and Prezzie testified that Kelvin still

directed sales and no one else contacted the Organization’s

suppliers because that was Kelvin’s role. More drugs were

available after Kelvin got out, and Anthony was able to resume

selling. It was Kelvin who decreed that they would no longer

supply drugs to Richardson, Sumpter, and others from the Hill as

part of their retaliation for the violence that had occurred.

Kelvin deemed Richardson the “heart” of the Hill Crew and said in

the spring of 1999 that he needed to be “dealt with sooner or

later.” He also told Buchanan after Buchanan shot Richardson,

“It’s about time you did something.”

The house on Lincoln Avenue served as the headquarters for

the Organization; it was used as a meeting place, a storage

facility for guns, a drug preparation area, and planning

location. Kelvin lived there between 1997 and 2000, as did other

members of the Organization. The jury could easily infer from

the evidence of the activities that took place at the Lincoln

Avenue house and the people involved that the acts of violence

were part and parcel of the culture of the Organization, just as

participation in the drug business was. Personal beefs also may

have been satisfied, but the evidence supported a finding that

the defendants engaged in violent acts because it was expected of

them as a way of taking care of each other and as members of the

Organization. There was sufficient evidence to support the

27
jury’s finding that the government established the VCAR purpose

element for Counts three and five through ten.

III.

Kelvin and DMX Burden raise a challenge to comments the

government made in the rebuttal portion of its closing argument.

The government was discussing the existence of an enterprise and

quoted from a jury instruction defining an enterprise as “[a]

group of people characterized by a common purpose or purposes, an

ongoing formal or informal organization or structure, and a core

personnel to have a function as a continuing unit during the

substantial time period.” The government lawyer said:

A group of people. Was this a group of people?
Absolutely. Did they form and operate in a continuing
manner? Absolutely. Was there a core personnel?
Absolutely. . . .

An example I was trying to think of overnight to
analogize what the argument is here. Let’s say, what’s
being said here is equivalent to, in an international
context, a nation, or not a nation, a group who doesn’t
have defined boundaries, doesn’t raise a flag, doesn’t
wear a common uniform, maybe even doesn’t speak the
same language. Suppose that group does things, hijacks
a plane from London, they blow up a tank in
Afghanistan. They do something, they do things all
over the world. And someone goes to the United Nations
and says, “We need to hold them responsible. We need
to sanction them. We need to react to that
development.”

Defense counsel objected and the district court directed the

government lawyer to move on. The defendants later moved for a

mistrial, which the district court denied.

28
 DMX Burden now argues that the government’s remarks were an

improper comparison between al-Qaeda and the trial defendants.

Kelvin argues that the government incited racial and ethnic

biases with its reference to the war on terrorism and airplane

hijacking and by essentially comparing the defendants to

terrorists. Both argue that the remarks deprived them of a fair

trial and that this court should reverse their convictions and

order a new trial.

We will not reverse a criminal conviction arising from an

otherwise fair trial solely on the basis of inappropriate

prosecutorial comments. Rather, we will reverse only if we

conclude, based on the context of the trial as a whole, that the

prosecutor made improper remarks that resulted in substantial

prejudice. United States v. Thomas, 377 F.3d 232, 244 (2d Cir.

2004). We look at three factors when considering whether an

improper comment caused the defendants prejudice: 1) the severity

of the misconduct; 2) the measures the district court adopted to

cure the misconduct; and 3) the certainty of conviction absent

the improper statements. United States v. Melendez, 57 F.3d 238,

241 (2d Cir. 1995).

The evidence at trial was sufficient for the jury to find

that the Burden Organization was an organized group that had a

shared purpose of selling narcotics. Its membership was clear,

and it existed for several years. There was nothing complicated

29
about the government’s ability to prove those facts. It is thus

unclear why the prosecutor felt it necessary to use an analogy of

a far more elaborate international set-up with corresponding

intrigue. The district court’s impression was that it was such a

poor analogy that it might well have backfired on the government

because the jury would react to it on its own as overreaching.

It was improper in that it was a blatant ploy to evoke images of

middle-Eastern terrorists seventeen months after the tragedy of

September 11, but we conclude that it caused no prejudice. The

inept remarks were limited to the paragraph quoted above. The

defense objection was prompt and the prosecutor abandoned the

analogy upon being directed by the district court to move on.

The district court instructed the jury that the closing arguments

were not evidence, and we have no difficulty in concluding that

the jury would have reached its guilty verdicts if the remarks

had never been made. The district court did not err in refusing

to grant a mistrial and the defendants’ due process rights were

not violated.

IV.

DMX Burden challenges the sufficiency of the evidence that

he possessed a firearm during a drug trafficking crime. Count

Seventeen charged him with the use of a nine-millimeter Beretta

handgun in connection with conspiracy to possess with intent to

30
distribute and to distribute cocaine base. He argues that the

testimony of one police officer who found the gun near the place

where DMX and another man were fighting was insufficient to

support his conviction because there was no direct evidence

linking him to the gun. He does not assert an alternative

argument to the effect that, should we rule that sufficient

evidence exists that he possessed the gun, the government failed

to prove that it was in furtherance of a drug trafficking crime.

When viewed in the light most favorable to the government,

the evidence was sufficient for the jury to find that DMX

possessed the gun. He does not dispute that he was fighting and

that police found the gun next to a fence approximately fifteen

to twenty feet away from him. Anthony Burden testified that DMX

called him that night and told Anthony he had pulled a gun on a

man that day to whom DMX had fronted drugs and from whom he was

trying to collect payment. He told Anthony that one of the man’s

friends called the police. When the police arrived they chased

DMX, he threw the gun, and they found it and arrested him. While

he was on the stand, Anthony identified the gun as belonging to

DMX and said he had seen it at the Lincoln Avenue house. Anthony

also identified Kelvin’s voice on a tape recording in which he

was talking to DMX about a “card” that DMX had lost in an

altercation, and Anthony testified that “card” referred to DMX’s

gun.

31
 We affirm DMX’s conviction on Count Seventeen.6

V.

Kelvin Burden raises several additional issues.

A.

First, he argues that the district court erred in admitting

into evidence a recording taken from a wire worn by government

cooperating witness Darryl Saunders. The recording was of a

controlled drug purchase by Saunders from Kelvin and DMX, which

the government relied on as evidence to support the narcotics

conspiracy charges in Counts Twelve and Fourteen. Saunders did

not testify at trial; the recording was introduced through a law

enforcement officer, Marc Lepore. Kelvin asserts that the

recording was an inadmissible testimonial statement. Because

Kelvin Burden did not object to the tape’s admission at trial, we

would normally review the challenge for plain error. See Fed. R.

Crim. P. 52(b). In this case, however, we conclude that there

was no error, plain or otherwise.

6
DMX Burden included in his brief a challenge to the
constitutionality of the Sentencing Guidelines. His argument is
moot. After the notices of appeal were filed in this case, the
government moved for a limited remand as to QB Burden, Buchanan,
and DMX Burden for the purpose of reconsidering their sentences
pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005).
The district court declined to hold a resentencing for the other
two, but did so for DMX and resentenced him to 264 months in
prison. His original sentence was 352 months.

32
 Under the Court’s ruling in Crawford v. Washington, 541 U.S.

36, 61-62 (2004), an out-of-court statement made by a declarant

who does not testify at trial, where the statement is deemed

“testimonial,” is not admissible unless the declarant is

unavailable and the defendant had a prior opportunity to cross-

examine the declarant concerning the statement. Thus, the first

question is whether the statements were testimonial.

It is important to keep in mind that the declarant to whom

Kelvin is objecting is Darryl Saunders. Kelvin contends that

Saunders’s statements on the tape were testimonial because

Saunders, who had consented to be wired, was aware that anything

he said could be used against others at a future criminal trial.

In United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), we

wrote that “Crawford at least suggests that the determinative

factor in determining whether a declarant bears testimony is the

declarant’s awareness or expectation that his or her statements

may later be used at a trial.” However, we later made clear that

this broadly worded test in Saget was dictum. See United States

v. Feliz, 467 F.3d 227, 235 (2d Cir. 2006)(“We do not believe,

however, that this statement in Saget should be read to have

adopted such an expansive definition of testimonial.”). In

Feliz, we held that autopsy reports were not testimonial, and in

the course of doing so we stated:

Certainly, practical norms may lead a medical examiner
reasonably to expect autopsy reports may be available for

33
 use at trial, but this practical expectation alone cannot
be dispositive on the issue of whether those reports are
testimonial. . . . Given that the Supreme Court did not
opt for an expansive definition that depended on a
defendant’s expectations, we are hesitant to do so here.

Id. at 235-36.

In a recording on a body wire by a confidential informant,

there are two types of statements: those made by the informant,

who is well aware that what he is saying may be used at a later

trial, and those by other participants in the conversation, who

are not. Undeniably, Crawford makes a declarant’s awareness of

his statement’s possible future use at trial part of the equation

in gauging whether the statement is testimonial, see 541 U.S. at

52, but even if this were the sole touchstone – and after Feliz,

it is the law of this circuit that it is not the sole touchstone

– there is still no Confrontation Clause problem with respect to

the statements on the recording by anyone other than Saunders

himself, as he was the sole declarant aware that any recording

was being made. With respect to those others, it is difficult to

imagine how a Crawford violation could arise, for, as to them,

Saunders was simply a tool for bringing the recording device

within range of the conversation to create an audio picture of

the event.

But Kelvin objects to utterances by Saunders himself. In

particular, he objects to an exchange in which Saunders asks

“[W]hat are you charging for a 14?,” David Burden replies “550,”

34
and Saunders whistles, communicating his impression that this is

a high price. Assuming for present purposes that this

constitutes a “statement,” does Saunders’s awareness that the

statement is being recorded for a future criminal trial make the

statement testimonial? We hold that the answer is no.

In Crawford, the Supreme Court observed that “[t]he

constitutional text [of the Confrontation Clause], like the

history underlying the common-law right of confrontation, . . .

reflects an especially acute concern with a specific type of out-

of-court statement.” 541 U.S. at 51. The Court elaborated:

Various formulations of this core class of “testimonial”
statements exist: “ ex parte in-court testimony or its
functional equivalent-that is, material such as
affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially,” . . .; “extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions,” White v. Illinois, 502 U.S.
346, 365 (1992) (THOMAS, J., joined by SCALIA, J.,
concurring in part and concurring in judgment);
“statements that were made under circumstances which
would lead an objective witness reasonably to believe
that the statement would be available for use at a later
trial,” . . . . These formulations all share a common
nucleus and then define the Clause's coverage at various
levels of abstraction around it. Regardless of the
precise articulation, some statements qualify under any
definition – for example, ex parte testimony at a
preliminary hearing.

Id. at 51-52. As the reasoning of Feliz suggests, it is unwise

to read Crawford’s catalog of the “core class of testimonial

statements” as more than a set of guideposts as courts work

35
through, case-by-case, different kinds of statements and

determine whether they are testimonial. This part of Crawford

cannot be a holding, as no court can say whether a particular

kind of statement is testimonial until it has considered that

kind of statement in an actual case. It is important to

remember, too, that the Crawford Court was merely listing

“[v]arious formulations” of the core class, without expressing a

preference among them. Id. The statements of a confidential

informant on a wire he is wearing fall under none of those

formulations other than “statements that were made under

circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later

trial.” Saunders’s statements are not remotely equivalent to in-

court testimony or its equivalent, and are even further from

being formalized testimonial material.

But even to the extent that Saunders knew his statements

could be used at a future trial, this is not a case in which

anything Saunders said was spoken for the purpose of accusing.

Rather, his comments were made to elicit inculpating statements

by others present. And the Supreme Court has already found

instances in which there was no Crawford violation even though

the declarant surely knew her statements could be used at a

future trial. In the lead case discussed in Davis v. Washington,

547 U.S. 813, 817-18 (2006), the declarant, a domestic-abuse

36
victim, called 911 and told the operator that the defendant, whom

she named, had, in the moments immediately preceding the call,

been hitting her with his fists. Surely one who calls 911 is

aware that her call may be recorded, and could be used as

evidence. And yet the Supreme Court found a dispositive

distinction from Crawford: the purpose of the declarant’s

statement had not been to testify but “to enable police

assistance to meet an ongoing emergency,” and the statement was

therefore not testimonial. Id. at 828.

It might be tempting to limit the applicability of Davis in

light of the exigency of the circumstances there, and the lack of

an emergency when a confidential informant speaks to a drug

dealer. But this would miss the broader significance of Davis:

the declarant’s purpose in speaking matters. Saunders was not

phoning in an ongoing emergency, but he also was not testifying,

either; he was attempting to elicit statements from others, and

anything he said was meant not as an accusation in its own right

but as bait. Saunders is thus similar to the declarant in the

lead case in Davis, because his purpose was non-accusatory. On

the same basis, he is distinguishable from the declarant in

Crawford, who made a tape-recorded statement to police after the

crime was over, see 541 U.S. at 39, and from the declarant in the

companion case in Davis, who gave a handwritten statement shortly

after the domestic abuse incident once the danger had passed

37
(which statement the Supreme Court found testimonial), see 547

U.S. at 819-20, 822. On this basis, we conclude that Saunders’s

statements on the body wire recording are not within the “core

class of testimonial statements” described in Crawford, even when

one accounts for Saunders’s knowledge that his statements could

be used at a later trial.7

Because Saunders’s statements were not testimonial, Kelvin

Burden had no Sixth Amendment right to confront him, and there

was no error.

B.

Next, Kelvin submits that this Court should reverse his

conviction on Counts Twelve (narcotics conspiracy) and Fourteen

(narcotics possession with intent to distribute) if we reverse

his RICO and VCAR convictions because spillover evidence admitted

7
In a letter submitted pursuant to Federal Rule of Appellate
Procedure 28(j), Kelvin calls our attention to the Supreme
Court’s decision last year in Melendez-Diaz v. Massachusetts, 129
S.Ct. 2527 (2009), in which the Court found affidavits to be
testimonial where those affidavits, prepared by laboratory
scientists, showed that material seized was cocaine. Affidavits,
however, are quintessential traditional testimonial materials
that fit comfortably within the “core class” described by
Crawford. See id. at 2533 (referring to the Court’s holding as a
“rather straightforward application of ... Crawford.”). As our
discussion makes clear, we hold that a confidential informant’s
statements on a body wire he is wearing do not fit in this class.
Furthermore, one Justice whose vote was necessary for the five-
member majority in Melendez-Diaz expressly stated that he joined
the Court’s opinion only because “the documents at issue ... are
quite plainly affidavits ... [and] [a]s such, they fall within
the core class of testimonial statements governed by the
Confrontation Clause.” Id. at 2543 (Thomas, J., concurring)
(internal quotation marks omitted).

38
as to those counts was prejudicial to him. We are affirming his

conviction on the latter counts and thus his argument as to the

former is moot.

C.

Kelvin argues that a number of trial errors occurred with a

cumulative effect of depriving him of his due process right to a

fair trial. His assertions are broad. He submits that the

district court repeatedly limited his cross-examination of

pivotal prosecution witnesses throughout the trial and refused to

tell the jurors that it had found Anthony Burden’s testimony

incredible. He includes as error the district court’s refusal to

grant a mistrial as a result of the prosecutor’s remarks in its

closing argument, which we have already rejected. Finally, he

argues that the district court jeopardized the integrity of the

jury by allowing alternate jurors to eat lunch with deliberating

jurors. His argument is devoid of record or case law citations,

and we find it to be without merit.

We are not aware of any instances in which the district

court limited Kelvin’s cross-examination, and he does not

identify any witnesses with whom that happened. We will not

assign as error a district court’s refusal to remark on a

witness’s credibility. District courts are to leave it to jurors

to decide the credibility of witnesses. “It is only where

39
exceptional circumstances can be demonstrated that the trial

judge may intrude upon the jury function of credibility

assessment.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d

Cir. 1992). Kelvin has set forth no alleged exceptional

circumstances. With respect to the jurors dining together, the

district court instructed the deliberating jurors not to

deliberate at any time that they were outside of the jury room,

and particularly not with alternate jurors. The district court

invited objection but heard none. No error occurred.

D.

Kelvin raises two additional trial issues. First, he

asserts that his forfeited Mercedes should be returned to him

because the evidence showed that it was just as likely that the

purchase money came from insurance proceeds from Sean’s death as

from criminal activity. He provides no record cites, however.

As the government points out, the district court bifurcated the

argument, instructions, and deliberations of the forfeiture

issue. The government had the burden to prove the facts

supporting forfeiture by a preponderance of the evidence. United

States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005).

Several witnesses testified concerning Kelvin’s purchase of

the Mercedes. He identified himself as “Mike” when he bought the

car for $46,000 by making periodic cash payments to the dealer in

40
the thousands of dollars. When he made the last payment, he told

the dealer to change the name on the bill of sale to Kelvin’s

father’s name and to list a false purchase price of $9,000.

Anthony Burden testified that Kelvin purchased his Mercedes with

money he obtained from selling drugs. Because it is not our

province to choose among competing permissible inferences, but

rather it is the jurors’ role to do so, United States v. Johns,

324 F.3d 94, 96-97 (2d Cir. 2003), we will not reverse the

forfeiture.

The last trial issue concerns Kelvin’s allegation that his

trial counsel had an actual, undisclosed conflict of interest,

thereby necessitating a new trial. He asserts that his lawyer

had previously represented co-defendant Demetrius Story in an

earlier state court case, and that as a result his attorney

declined to call Story as a witness in spite of Kelvin’s request

that he do so. Kelvin submits that he told his counsel that

Story would have testified that Kelvin did not continue selling

narcotics while incarcerated, but counsel did not investigate the

claim.

This is the first instance in which Kelvin has raised the

issue of his counsel’s alleged conflict of interest. He

acknowledges that the facts supporting these allegations are

outside the record. In such an instance, where the “record on

appeal does not include the facts necessary to adjudicate a claim

41
of ineffective assistance of counsel, our usual practice is not

to consider the claim on the direct appeal, but to leave it to

the defendant to raise the claims on a petition for habeas corpus

under 28 U.S.C. § 2255.” United States v. Oladimeji, 463 F.3d

152, 154 (2d Cir. 2006) (explaining that collateral review

provides better evaluation of ineffectiveness claim because

record can be developed in district court). Kelvin provides no

compelling reason why we should vary from our usual practice, and

we decline to consider his claim as a part of this direct appeal.

E.

Kelvin raises three sentencing issues. He asserts that two

prior narcotics convictions should have been considered relevant

conduct to the narcotics conspiracy of which he was convicted in

this case and thus not listed as separate offenses when

calculating his criminal history category. The Sentencing

Guidelines provide that criminal history points are to be

allocated for prior sentences, defined as sentences previously

imposed for conduct that is not part of the instant offense.

U.S.S.G. § 4A1.2(a)(1). Conduct that is part of the instant

offense is further defined as that which is “relevant conduct to

the instant offense under the provisions of § 1B1.3.” Id.

section 4A1.2, cmt. n.1. Section 1B1.3, in turn, provides that

relevant conduct includes acts that were “part of the same course

42
of conduct or common scheme or plan as the offense of

conviction.” See United States v. Thomas, 54 F.3d 73, 83 (2d

Cir. 1995).

Kelvin did not object to this calculation at the time of his

sentencing, and thus we review for plain error. He provides no

information concerning his prior convictions which would allow us

to determine whether they were part of the same course of conduct

or common scheme or plan. The record indicates that one was a

1992 conviction and the other a 1996 conviction. (GA 1895-96)

The conspiracy in this case was alleged to begin in 1997. (GA

40-41) Based on the information as we know it, this argument does

not indicate that resentencing is necessary.

Second, he demands to be resentenced because the transcript

suggests that the district court relied upon the docket sheet to

confirm that the government had filed and served a prior felony

information sheet. According to Kelvin, the district court

should have but did not verify the document existed. Again, he

did not raise this issue before the district court. Kelvin

provides no authority that the district court erred, that the

document was not filed, or that his counsel was not served with a

copy. He indicates no prejudice. The argument is without merit.

Finally, Kelvin asserts that he should not have received a

four-level enhancement pursuant to Sentencing Guidelines § 3B1.1

for his role as a leader because it was based upon judicially

43
found facts in violation of his Sixth Amendment rights. Case law

does not support him. “Judicial authority to find facts relevant

to sentencing by a preponderance of the evidence survives Booker.

. . . [T]he sentencing judge will be entitled to find all of the

facts that the Guidelines make relevant to the determination of a

Guidelines sentence. . . .” United States v. Garcia, 413 F.3d

201, 220 n.15 (2d Cir. 2005). Thus, the district court was

entitled to make the factual determination relating to the

enhancement. Moreover, even if we were to find error, the

argument would be moot. Kelvin is subject to two mandatory life

sentences under Counts Eight (VCAR murder of Owens) and Twelve

(narcotics conspiracy coupled with prior convictions). He thus

could not receive a lesser sentence even if he were to be

resentenced.

VI.

QB Burden raises one additional argument, that the RICO

statutes are unconstitutionally vague as applied to him because

he could not have known that his personal beefs and corresponding

violence against members of the Hill Crew would combine with his

status as a “mere seller” of narcotics and result in RICO

liability. He acknowledges that case law holds otherwise, but

asks that we consider his claim. He preserved his challenge by

raising it in the district court.

44
 A statute is unconstitutionally vague if it “either forbids

or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning and

differ as to its application.” Connally v. Gen. Constr. Co., 269

U.S. 385, 391 (1926). We are to evaluate constitutional

vagueness challenges on the facts of the given case and not on a

speculative application of the statute. United States v. Coonan,

938 F.2d 1553, 1562 (2d Cir. 1991). We are of course bound by

the law of this circuit, which has consistently rejected such

challenges to the RICO statute. E.g., id.; United States v.

Coiro, 922 F.2d 1008, 1017 (2d Cir. 1991); United States v.

Ruggiero, 726 F.2d 913, 923 (2d Cir. 1984) (abrogated on other

grounds by Salinas v. United States, 522 U.S. 52, 61, 63 (1997));

United States v. Huber, 603 F.2d 387, 393 (2d Cir. 1979).

QB’s constitutional challenge fails. The record supports a

finding that he was deeply involved in the narcotics conspiracy

and a key figure in planning and carrying out acts of violence

against members of the Hill Crew as part of an organized response

by the Burden Organization. On the facts of this case, he had

sufficient notice that his conduct subjected him to the penalties

associated with the RICO statute.

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 VII.

Jermain Buchanan sets forth three separate arguments.

First, he submits that the district court erred by not dismissing

racketeering Acts 3A, 3B, and 4 on double jeopardy grounds.

Buchanan was tried and acquitted in state court in connection

with Derek Owens’s death and Marque Young’s shooting, and he

argues that being subjected to federal prosecution for the same

conduct violates the Double Jeopardy Clause of the Fifth

Amendment.

Buchanan and Angel Cabrera were tried by a Connecticut state

court jury in January 2001 on charges of attempted murder, first

degree assault, and conspiracy to commit murder arising out of

the death of Owens and the shooting of Young. They were

acquitted on all counts. Eleven months later, a third

superceding indictment was handed up in this case that added

Buchanan as a defendant. He was charged in several counts,

including Count One (RICO) and specifically with racketeering

Acts 3A (conspiracy to murder Marque Young), 3B (attempted murder

of Young), and 4 (murder of Derek Owens). Buchanan filed a

motion to dismiss, which the district court denied. Under the

dual sovereignty principle, a defendant may be prosecuted for the

same conduct by more than one sovereign without offending the

Double Jeopardy Clause because breaking the laws of each

constitutes separate offenses. Heath v. Alabama, 474 U.S. 82, 88

46
(1985). State and federal governments are separate sovereigns in

this analysis. Id. at 89.

Although Buchanan included his challenge to the dual

sovereignty exception to the Double Jeopardy Clause in his

appeal, he acknowledges that this Court is not free to make new

law on the issue. See United States v. Nelson, 277 F.3d 164, 212

n.58 (2d Cir. 2002). We thus reject his argument because it is

foreclosed by prevailing authority. See United States v. Coonan,

938 F.2d 1553, 1563 (2d Cir. 1991) (acquittal in state court of

murder does not preclude federal authorities from charging same

offense as predicate act in RICO prosecution). The same holds

true for Buchanan’s subsidiary argument that cooperation between

Connecticut and federal authorities may afford him double

jeopardy relief under the exception that has arisen from Bartkus

v. Illinois, 359 U.S. 121, 123-24 (1959). This circuit has

defined this exception by saying that “the Double Jeopardy Clause

may be violated despite single prosecutions by separate

sovereigns when one prosecuting sovereign can be said to be

acting as a tool of the other.” United States v. All Assets of

G.P.S. Auto. Corp., 66 F.3d 483, 494 (2d Cir. 1995) (internal

quotation marks omitted). We have explained, however, that

“[t]his exception is not triggered simply by cooperation between

the two authorities,” but that “[one] government must have

effectively manipulated the actions of the [other] government, so

47
that [the other government’s] officials retained little or no

independent volition.” United States v. 38 Whalers Cove Drive,

954 F.2d 29, 38 (2d Cir. 1992). Buchanan concedes this point of

law and points to no evidence that manipulations has occurred

here.

Buchanan’s second argument is that the district court erred

in allowing Marque Young’s written statement to be admitted into

evidence. We review for abuse of discretion. United States v.

Forrester, 60 F.3d 52, 59 (2d Cir. 1995). Young testified at

trial and described having seen Buchanan and another person as

the shooters. He further testified that he had identified

Buchanan in two separate photo spreads. During cross-

examination, Buchanan’s counsel attempted to introduce an October

1999 statement in which Young told police that he wasn’t sure

Buchanan was in the front passenger seat. The government

objected and the district court sustained the objection. The

government later stated that it would withdraw its objection if

it could introduce a November 1999 statement in which Young

identified Buchanan as the shooter under the theory that it was a

prior consistent statement. The district court ultimately

allowed both the October and November statements to be admitted.

Buchanan argues that the November statement was not

admissible under Federal Rule of Evidence 801(d)(1)(B) as a prior

consistent statement because he had never made a charge of recent

48
fabrication against Young. Instead, he argues that his goal in

getting the October statement admitted was to impeach Young and

make his trial testimony less believable because of his earlier

inconsistent statements. Buchanan further argues that the

government’s purpose in introducing the November statement was

improper bolstering of Young’s credibility. We conclude that the

district court did not abuse its discretion in allowing the

second Young statement to be introduced in conjunction with the

first. Buchanan was attempting to impeach Young, specifically by

suggesting that his trial testimony in which he identified

Buchanan as a shooter was a recent fabrication. Once allowed to

raise that inference, the district court was well within its

discretion to allow a month-later statement, consistent with the

trial testimony, to be introduced to rebut the charge that

Young’s trial testimony was recently fabricated.

Buchanan’s final argument is that there was insufficient

evidence to support the district court’s findings that Buchanan

was responsible for more than 150 grams of cocaine base (crack)

and that he was one of the core members of the conspiracy and

thus responsible for the drugs distributed by the Burden

Organization. The government has set forth a number of witnesses

who testified as to the enormous quantities of cocaine and crack

the Burden Organization conspired to sell and sold. They sold

daily, purchased in kilogram quantities, and sometimes sold as

49
much as a kilogram in a week. In addition, there was much

evidence of Buchanan’s participation as a seller, cooker, and

bagger. Prezzie testified that Buchanan personally dealt seven

to fourteen grams of crack on a weekly basis for a year or two.

We conclude that the district court committed no clear error in

its factual findings at Buchanan’s sentencing.

VIII.

Terrence Boyd raises a single issue on appeal. He pleaded

guilty to one count of possessing with intent to distribute and

distributing five grams or more of a mixture or substance

containing a detectable amount of cocaine. He entered into a

stipulation at sentencing that he was a career offender pursuant

to U.S.S.G. § 4B1.1 with a base offense level of 34, and that if

he received a three-level reduction for acceptance of

responsibility his guideline range would be 188 to 235 months’

imprisonment. He reserved the right to, and did, argue for a

downward departure, but the district court declined to exercise

its discretion. The district court sentenced Boyd to 188 months’

imprisonment and five years of supervised release. Following his

notice of appeal, this Court remanded this case pursuant to

United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The

district court solicited briefing by the parties on whether it

would have imposed a non-trivially different sentence if the

50
Sentencing Guidelines had been advisory, and later concluded that

resentencing was unnecessary because it would have imposed the

same sentence had the Guidelines been advisory.

Boyd now argues that his sentence would have been different

absent the mandatory Guidelines. He asserts that his counsel

would have made different departure arguments, would have argued

that the career offender guideline was unnecessarily high due to

the disparity in treatment between crack and powder cocaine, and

that the district court would have been more receptive to

arguments based on the over-representation of Boyd’s criminal

history.

We review Buchanan’s sentence for reasonableness, even after

a district court declines to resentence following a Crosby

remand. United States v. Williams, 475 F.3d 468, 474 (2d Cir.

2007), cert. denied, 128 S. Ct. 1495 (2008). We conclude that

the sentence, which was at the bottom of the range Buchanan

stipulated to, was reasonable. See Rita v. United States, 127 S.

Ct. 2456, 2462-65 (2007).

However, we will remand Boyd’s sentence pursuant to

Kimbrough v. United States, 128 S. Ct. 558 (2007), as set forth

below.

IX.

All of the five defendants in this case were convicted of

51
and sentenced for offenses involving crack cocaine. The parties

submitted their briefs prior to the Supreme Court’s decision in

Kimbrough v. United States, 128 S. Ct. 558 (2007), in which the

Court held that a sentencing judge may consider the disparity

between the Guidelines’ treatment of crack and powder cocaine

offenses. Id. at 575. None of these defendants raised the issue

before the district court. Accordingly, we must remand “to give

the district court an opportunity to indicate whether it would

have imposed a non-Guidelines sentence knowing that it had

discretion to deviate from the Guidelines to serve [the]

objectives [of sentencing under 18 U.S.C. § 3553(a)].” United

States v. Regalado, 518 F.3d 143, 149 (2d Cir. 2008) (per

curiam).

Conclusion

We affirm the convictions of David L. Burden, Kelvin Burden,

Jermain Buchanan, and David M. Burden. We affirm the sentences

of Kelvin Burden, Jermain Buchanan, and Terrence Boyd. We remand

each defendant’s sentence pursuant to Regalado.

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