United States v. Capers

17-1836-cr
United States v. Capers




                          UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT



                                    August Term, 2017

                            Initially Submitted: May 2, 2018
                          Last Written Submission: March 18, 2021
                                 Decided: December 14, 2021



                                   Docket No. 17-1836-cr



                                UNITED STATES OF AMERICA,

                                                       Appellee,

                                         — v. —

                                JAMES CAPERS, AKA MITCH,

                                                       Defendant-Appellant,*

B e f o r e:

                             LEVAL and LYNCH, Circuit Judges.**


*
 The Clerk of Court is respectfully directed to amend the official caption as
shown above.
**
  Judge Christopher F. Droney, originally a member of this panel, retired on
January 2, 2020. This appeal has been decided by the two remaining members of
       James Capers appeals from a judgment of the United States District Court
for the Southern District of New York (Pauley, J.) sentencing him to 42 years in
prison following his conviction by a jury of conspiracy to violate the Racketeer-
Influenced and Corrupt Organizations Act (“RICO”), conspiracy to distribute
narcotics, and murder through the use of a firearm during a crime of violence or
drug trafficking crime. Capers appealed his convictions on the racketeering and
firearm charges, initially arguing that there was insufficient evidence to support
the jury’s findings and that the district court erred in its instructions to the jury as
to the firearm-murder offense. While his appeal was pending, a series of cases in
the United States Supreme Court and in this Court led to supplemental briefing
in which Capers, relying principally on United States v. Davis, 

(2019), and United States v. Barrett, 

 (2d Cir. 2019), now argues that his
murder conviction is invalid because RICO conspiracy is not a crime of violence,
and it is impossible to tell whether the jury relied on the district court’s
instruction that it was such a crime in convicting Capers on the firearm-murder
charge. We agree, and VACATE the judgment of the district court as to that
charge. We otherwise AFFIRM the judgment of the district court, and REMAND
for further proceedings.



                    SCOTT HARTMAN (Jessica Lonergan, Jason M. Swergold, and
                         Won S. Shin, on the brief), Assistant United States
                         Attorneys, for Joon H. Kim, Acting United States
                         Attorney for the Southern District of New York, New
                         York, NY, for Appellee.

                    BENJAMIN SILVERMAN (Andrew G. Patel, on the brief), Patel &
                         Shellow LLP, New York, NY, for Defendant-Appellant.




the panel, who are in agreement. See 

(d); 2d Cir. IOP E(b); United
States v. Desimone, 

 (2d Cir. 1998).

                                           2
GERARD E. LYNCH, Circuit Judge:

      Following a six-day trial, a jury in the United States District Court for the

Southern District of New York found James Capers, a member of a street gang

known as the Leland Avenue Crew (the “Leland Crew” or “Leland”), guilty of

conspiracy to violate the Racketeer-Influenced and Corrupt Organizations Act

(“RICO”), in violation of 

(d); conspiracy to possess narcotics with

intent to distribute, in violation of 

(b)(1)(A), 846; and murder

through the use of a firearm during and in relation to a crime of violence or a

narcotics offense, in violation of 

(j)(1).1 The district court (William

H. Pauley III, J.) sentenced Capers to imprisonment for 444 months (37 years) on

the racketeering and narcotics conspiracy charges, to run concurrently, and an

additional 60 months (5 years) on the firearm-murder charge. Capers appeals

from that judgment.


1
 The jury also specifically found that the pattern of racketeering activity that
Capers agreed would be committed included the murder of Allen McQueen and
a conspiracy to distribute, or possess with intent to distribute, 280 grams or more
of crack cocaine. The jury acquitted Capers on three other charges: murder in aid
of racketeering, in violation of 

(a)(1); murder in connection with a
drug crime, in violation of 

(e); and using a firearm in relation to
the charged racketeering and drug crimes, in violation of 

(c).

                                           3
      Capers initially challenged his convictions by arguing that there was

insufficient evidence to support the jury’s finding that the murder with which he

was charged was in furtherance of either the racketeering enterprise or the

narcotics conspiracy charged in the indictment, and that the district court erred in

failing to instruct the jury that it must find that Capers committed premeditated

murder in order to convict him under § 924(j).

      After the briefing was complete, a series of decisions in the Supreme Court

and in this Court interpreting and invalidating aspects of the definition of “crime

of violence” underlying Capers’s murder conviction led to several rounds of

supplemental briefing regarding the validity of that conviction, as the law

continued to evolve. Essentially, Capers now contends that under current law,

most particularly the Supreme Court’s decision in United States v. Davis, 

 (2019), and this Court’s decision in United States v. Barrett, 

 (2d

Cir. 2019) (“Barrett II”), the district court’s instruction that RICO conspiracy is a

crime of violence for purposes of § 924(j) was plainly erroneous, and that his

conviction on the firearm-murder charge must therefore be vacated.

      We agree that under binding precedent from the Supreme Court, RICO

conspiracy is not a crime of violence for purposes of § 924(j). Because it is unclear


                                           4
whether the jury based its decision to convict Capers of the firearm-murder

offense on the erroneous belief, in light of the trial court’s instruction, that RICO

conspiracy is such a crime, Capers’s conviction of that offense must be vacated.

Capers has not shown error as to any other conviction. We therefore VACATE

Capers’s conviction as to Count Five, AFFIRM the remainder of the judgment,

and REMAND for further proceedings consistent with this Opinion.

                                 BACKGROUND2

      At trial, Capers explicitly conceded that on the afternoon of July 7, 2015, he

shot and killed Allen McQueen. The evidence showed that Capers ran up behind

McQueen as McQueen was walking down a Bronx street holding his eleven-

month old daughter in his arms, and fatally shot him in the side, the bullet

traversing both his lungs and the vein that delivers blood to the heart. Capers did

not contend at trial that he had not murdered McQueen; rather, his defense was

that the murder was not a federal crime, because the murder was a “solo project”

of personal revenge that he undertook on his own, and that had nothing to do




2
 The facts that follow, most of which are not disputed, are based on the evidence
presented at trial, taken in the light most favorable to the jury’s verdict.

                                          5
with his involvement in the Leland Crew’s racketeering and narcotics activities.

Appellant’s Br. at 21.

      The jury heard extensive evidence about that involvement. Capers was a

member of the Leland Crew, which operated primarily around Leland Avenue in

the Bronx. Indeed, Capers’s membership in the gang is not seriously disputed on

appeal. The government presented evidence that Leland Crew members sold

marijuana and crack cocaine between 2009 and 2015, and that Capers had been

arrested for selling crack cocaine on Leland Avenue as early as March 2009.

Several cooperating witnesses testified that Capers continued to sell cocaine and

marijuana between 2009 and his arrest for the instant offenses in 2015.

      The Leland Crew was also involved in a violent rivalry with another gang,

the Taylor Avenue Crew (the “Taylor Crew” or “Taylor”). Taylor Avenue is only

a street away from Leland Avenue, and the Taylor and Leland gangs competed

for business in the neighborhood, resulting in considerable tension between the

groups. Violence between the gangs escalated between 2009 and 2014. After a

Leland member shot a Taylor member in November 2014, members of the Taylor

Crew vowed to retaliate by murdering Leland’s leader, Pablo Beard. Just a few




                                        6
months later, in March 2015, Beard was shot and killed by two Taylor Crew

members, Elijah Davila and Allen McQueen.

      Leland members, angered at the murder of Beard and worried that the

Taylor Crew would attempt to take advantage of their perceived weakness if they

failed to retaliate, discussed the need to take revenge. Members posted warnings

on social media that Beard would be avenged. Capers, who was in prison at the

time of Beard’s murder, considered Beard his best friend, and thus had a

particular interest in revenge against Davila and McQueen. After his release from

prison he joined other Leland Crew members in creating a YouTube video

warning that Beard would be violently avenged – a video that a Leland member

testified at trial was meant to let “[t]he enemy, the Taylor” know that “[n]obody

is going to get away with . . . [k]illing Pablo.” Tr. 231. On more than one occasion,

Leland members went to Taylor Avenue looking for McQueen and calling his

name. Capers himself warned McQueen’s girlfriend to “be careful and stay away

from [McQueen].” Tr. 504. His cellphone contained text messages showing that

he too was looking for McQueen.

      On the afternoon of the murder, Capers asked one of his (and formerly,

Beard’s) marijuana customers for a ride, ostensibly to go to Harlem to replenish


                                          7
his marijuana supply. Once under way, however, he instructed the customer to

drive down Taylor Avenue, purportedly to look for one of his suppliers. Capers

spotted McQueen, ordered the car to stop, got out of the car and, as described

above, shot McQueen, who managed to run a block, still holding his child, before

he collapsed and died. Capers returned to the car and told the driver that he had

just “blammed” someone. Tr. 563.

      Shortly after Beard’s murder, Capers advised an incarcerated fellow

Leland member by telephone that McQueen had been killed. Other Leland Crew

members posted a news article on Facebook about McQueen’s killing,

accompanied by references to Beard and the rivalry between the gangs. Capers

himself wrote notes in his cellphone two days after the killing, that referenced

cooking crack, the gun violence in the neighborhood, and how his “gang” was

“up to no good,” noting that “now that nigga shot” and that now “we on all these

blocks.” SA 44.

      After a day and a half of deliberations, the jury returned the verdict

described above. Following an unsuccessful round of post-trial motions and the

imposition of sentence, Capers filed a timely notice of appeal.




                                         8
                                    DISCUSSION

      As noted above, Capers challenges the sufficiency of the evidence to

support certain of his convictions, and also raises two challenges to the

instructions that were given to the jury with respect to the firearms-murder

charge. Because insufficiency of the evidence would require reversal of the

challenged convictions and entry of a judgment of acquittal, see, e.g., United States

v. Bramer, 

 (2d Cir. 2020), while a finding of instructional error

would require only vacatur of the conviction and a remand for a new trial, see,

e.g., United States v. Silver, 

, 547, 572 (2d Cir. 2020), we address the

sufficiency argument first.

I.    Sufficiency of the Evidence

      Capers raises sufficiency of the evidence challenges to two of his

convictions. First, he argues that there is insufficient evidence to support the

jury’s finding on Count One that the pattern of racketeering activity that he

agreed to commit included the murder of McQueen. Second, he argues that his

§ 924(j) conviction cannot stand because there is no evidence that he murdered

McQueen in relation to either the racketeering conspiracy or a drug trafficking

crime. Both arguments are meritless.


                                           9
      “We review preserved claims of insufficiency of the evidence de novo.”

United States v. Atilla, 

 (2d Cir. 2020). Even on de novo review,

however, “defendants face a heavy burden” because we must sustain the jury’s

verdict if, “credit[ing] every inference that could have been drawn in the

government’s favor” and “viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Ho, 

 (2d

Cir. 2020) (internal quotation marks omitted). “A court may enter a judgment of

acquittal only if the evidence that the defendant committed the crime alleged is

nonexistent or so meager that no reasonable jury could find guilt beyond a

reasonable doubt.” Atilla, 

 (internal quotation marks omitted).

      A. The RICO Conspiracy Charge

      As part of Capers’s conviction of RICO conspiracy, the jury found, inter

alia, that the pattern of racketeering activity that Capers agreed would be

committed as part of the Leland Crew enterprise included the murder of Allen

McQueen. On appeal, Capers acknowledges that there is sufficient evidence to

support his conviction of RICO conspiracy, but argues that there was insufficient

evidence to support the jury’s finding that the murder of McQueen was part of


                                         10
the pattern of racketeering activity to which he agreed. We disagree.3

      Looking at the evidence in the light most favorable to the government, a

rational trier of fact could have concluded that the murder of McQueen was part

of the RICO enterprise. Capers does not deny that he killed McQueen. He argues,

however, as he did at trial, that he committed that murder solely “to avenge his

best friend’s murder” and not for any reason connected to the Leland RICO

conspiracy. Appellant’s Br. at 24, 26. The jury rejected that argument, however,

after hearing extensive evidence that Capers was a member of the Leland Crew,

that Leland and Taylor would commit violent acts against one another in order to

maintain territory and respect, and that Capers both participated, before

McQueen’s murder, in group Leland Crew threats to avenge the murder of their

leader, and wrote notes after McQueen’s murder that a reasonable juror could

find linked the murder of McQueen to the success of the Leland Crew.

      Leland members testified at trial that affiliates of the gang were required to

“put[] in work,” meaning that they would “[h]urt[] the enemy” to boost the


3
 The government argues that we should review Capers’s challenge to the jury’s
Count One findings for plain error, because, in its view, he did not adequately
preserve that challenge. We need not decide whether the issue was properly
preserved because, even assuming that de novo review applies, the evidence is
sufficient to support the jury’s finding.

                                        11
gang’s image, maintain loyalty and respect, and to enable the gang to continue its

profitable enterprise selling drugs. Tr. 150, 199. Moreover, specifically with

respect to the murder of McQueen, there was evidence that Capers’s successful

effort to hunt down and kill McQueen was intertwined with, and furthered, the

Leland Crew’s collective desire for revenge. Before the McQueen murder, other

gang members expressed concern that the gang’s interests demanded retaliation

against Taylor for the killing of Beard. Capers’s interest in revenge not only

paralleled the gang’s; there was evidence that he shared its collective goal. Thus,

he participated in the creation of the video, posted on YouTube, that was

expressly intended as a message to Taylor, the “enemy,” that the Leland Crew

would not let anybody “get away with . . . [k]illing Pablo.” Tr. 231.

      Almost immediately after he shot McQueen, moreover, Capers

communicated to a jailed Leland member that McQueen had been killed. Capers

also made notes in his cell phone a few days later associating gun violence and

the fact that the “nigga [got] shot” (which a reasonable juror could infer was a

reference to McQueen) with the activities of his “gang,” the cooking of crack, and

his gang’s ability to be “on all these blocks,” SA 44, again paralleling social media




                                         12
boasts from other gang members during the same period that their leader’s death

had been avenged.

      From all of that evidence, a trier of fact could reasonably draw the

inference that Capers’s murder of McQueen was an instance of a Leland member

striking back at “the enemy” to bolster the racketeering enterprise. It may well be

that Capers, perhaps like other members of the gang, was particularly motivated

to avenge Beard’s death because of his personal friendship with Beard. But

nothing about that additional motive is inconsistent with the conclusion, which

could rationally be drawn from the evidence, that Capers was loyal not only to

Beard personally, but to the gang that Beard led, and that he, along with other

Leland members, joined in the purpose of furthering the gang’s interests by

hunting down and retaliating against one of the members of the rival Taylor

Crew who had played a role in Beard’s murder. See United States v. White, 

 (2d Cir. 2021) (holding, in the context of § 1959, that defendant’s

“personal motive for committing an act of violence” does not preclude finding

that he was also “motivated by a desire to increase or maintain his position in the

RICO enterprise”).




                                         13
      B. The Firearm-Murder Charge

      The jury also found that the murder of McQueen violated § 924(j), which

makes it illegal to “cause[] the death of a person through the use of a firearm,” 

(j), in relation to a crime of violence or drug trafficking crime. Capers

argues that the evidence was insufficient to support the jury’s determination that

the murder had a nexus to either a crime of violence or a drug trafficking crime.

For substantially the same reasons just discussed, the evidence permitted the jury

to find that Capers murdered McQueen during and in relation to the narcotics

conspiracy charged in the indictment, which overlapped with and indeed formed

part of the RICO conspiracy.4 On appeal, Capers does not challenge the jury’s

finding that he was guilty of participating in that narcotics conspiracy. Nor does

he challenge the trial court’s instruction to the jury that Capers could be

convicted of the § 924(j) count if “the firearm [] played some part in furthering

the [narcotics] crime.” App’x at 278. And, as discussed above, the jury heard

evidence permitting it to infer beyond a reasonable doubt that the murder of


4
 As discussed in Section II.A below, the jury could not lawfully convict Capers on
the firearms-murder charge for his use of a firearm in relation to a RICO
conspiracy, because RICO conspiracy is not a crime of violence. Thus, we must
determine only whether there is sufficient evidence to sustain the verdict based
on a valid drug trafficking predicate.

                                         14
McQueen was motivated by an effort to preserve the Leland Crew’s reputation

and its ability to protect and extend its drug-dealing territory. As we have held in

the related context of murder in aid of racketeering in violation of 

, there is no inconsistency between a crime that is motivated in part by

personal objectives and a finding that the crime was also committed “at least in

part” for purposes related to a criminal enterprise. United States v. Arrington, 

 (2d Cir. 2019). From the evidence at this trial, a properly-instructed

“rational trier of fact could [find] the essential elements of [§ 924(j)] beyond a

reasonable doubt,” Ho, 

 (internal quotation marks omitted).5

II.   The Jury Instructions

      Capers raises two claims of error in the district court’s instructions to the

jury concerning the firearms-murder count. First, he argues that the judge erred

in advising the jury that the RICO conspiracy count in the indictment was a crime

of violence that could serve as a predicate offense for a firearms-murder charge

under 

(j). Second, he argues that the judge erred in refusing his




5
  To the extent that the jury here was not properly instructed, a new trial on the
firearm-murder charge, rather than a judgment of acquittal on that charge, is
appropriate.

                                          15
request that the jury be instructed that only killings that are premeditated can

constitute “murder” within the meaning of that statute.

      “We review de novo a properly preserved challenge to a jury instruction,

reversing where the charge, viewed as a whole, either failed to inform the jury

adequately of the law or misled the jury about the correct legal rule.” United

States v. Binday, 

 (2d Cir. 2015) (internal quotation marks

omitted). Objections to jury instructions that were not presented to the trial court,

however, are reviewed for plain error. United States v. Grote, 

, 114 (2d

Cir. 2020). “Under plain error review, we consider ‘whether (1) there is an error;

(2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the

error affected the appellant’s substantial rights; and (4) the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.’” United States

v. Martinez, 

 (2d Cir. 2021), quoting United States v. Miller, 

 (2d Cir. 2020).

      A.     Did the Court Commit Plain Error by Instructing the Jury that
             RICO Conspiracy is a Crime of Violence on which a Section 924(j)
             Violation Can Be Predicated?

             1. The Charge Was Erroneous.




                                          16
      As relevant to this case, 

(j) provides for an enhanced penalty

for an individual who, “in the course of a violation of [

(c)], causes

the death of a person through the use of a firearm,” with the specific penalty

depending on whether the killing is classified as murder or manslaughter.

Section 924(c), in turn, prohibits the use or carrying of a firearm “during and in

relation to . . . or . . . in furtherance of” a crime of violence or drug trafficking

crime. Capers does not dispute that the narcotics conspiracy of which he was

convicted is a drug trafficking crime that could be the predicate for a violation of

§ 924(c) (and thus also of § 924(j)). The district court, however, instructed the jury

that it could convict Capers of the § 924(j) firearms-murder charge if it found,

beyond a reasonable doubt, that he used or carried a firearm, causing the death of

McQueen, “during and in relation to either the racketeering conspiracy charged in

Count 1 or the drug trafficking conspiracy charged in Count 3,” Tr. at 965

(emphasis added), because “the racketeering conspiracy charged in Count 1 is a

crime of violence,” id. at 967. It is that instruction to which Capers now objects.6


6
 Capers stipulated to the instruction because, under then prevailing law in this
Circuit, “a conspiracy to commit a crime of violence [was] itself a crime of
violence within the meaning of § 924(c)(1).” United States v. Elder, 

(2d Cir. 1996). To the extent that the substantive RICO crime that Capers
conspired to commit involved a violent predicate act as part of the pattern of

                                            17
      For purposes of §§ 924(c) and 924(j), a crime of violence is defined by

statute as a felony that either “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another,” 

(c)(3)(A) (the “force clause”), or “by its nature, involves a substantial

risk that physical force against the person or property of another may be used in

the course of committing the offense,” 

 § 924(c)(3)(B) (the “residual clause”). In

Davis, however, the Supreme Court invalidated the residual clause as

unconstitutionally vague. 

. Thus, the statute’s force clause is the

only remaining valid definition of a crime of violence for purposes of the

firearms statute under which Capers was convicted.

      Moreover, the Supreme Court has long held that to be a crime of violence

under the force clause, a crime must categorically involve the use of force. See

Taylor v. United States, 

 (1990). In other words, it is not enough


racketeering through which the RICO offense was to be committed, the object
offense could have been a crime of violence, see Martinez, 

, and
so under our pre-Davis case law the charged conspiracy would also be a crime of
violence. The government does not argue that Capers intentionally waived his
present contention that the prior circuit law has been superseded; in
consequence, we may consider that argument on appeal. See United States v.
Eldridge, 

, 36 n.11 (2d Cir. 2021) (noting that the government can waive
the issue of waiver). But because Capers failed to object to the instruction, as
discussed above, we may reverse only for plain error.

                                          18
that the evidence in the case shows that the defendant committed the charged

predicate crime in a way that involved the use of force (as, indeed, it did here).

Instead, the predicate crime must be one whose elements are defined in such a

way that the crime must, “in every instance[,] by its very definition, involve[] the

use of force.” Martinez, 

.

      The parties now disagree as to whether RICO conspiracy qualifies as a

crime of violence under the force clause.7 The government argues that “the

racketeering conspiracy in this case has as an element the use of physical force”

because it “involved the murder of Allen McQueen.” Govt. Letter (Dkt. 128) at 1-

2 (emphasis added). For his part, Capers argues that racketeering conspiracy

does not require an overt act and therefore cannot qualify as a crime of violence




7
  The government’s position on this issue has twice changed. In opposition to
Capers’s supplemental brief following the Supreme Court’s decision in Dimaya,
the government argued that “racketeering conspiracy with violent predicate acts
is a ‘crime of violence.’” Govt. Supp. Br. (Dkt. 82) at 11. Then, in briefing
submitted after Davis, the government conceded that racketeering conspiracy is
not a crime of violence and therefore cannot be a predicate for the § 924(j)
conviction. Govt. Supp. Br. (Dkt. 118) at 3. Finally, in a Rule 28(j) letter filed on
March 17, 2021, the government reverted to its prior position that “the
racketeering conspiracy charged and proved in this case is a crime of violence
and a valid predicate for Capers’s Section § 924(j) conviction.” Govt. Letter (Dkt.
128) at 1.

                                            19
because it “lacks, as an element, the actual, threatened, or attempted use of

physical force.”Appellant’s Supp. Br. (Dkt. 117) at 9.

      The government’s position is unsustainable. The categorical approach

directs us that to determine whether an offense constitutes a crime of violence,

we are to consider not the particular conduct disclosed by the evidence presented

in the case, but the elements of the offense as defined by statute, to determine

whether forcible conduct is legally required to be proved in order to establish a

violation of the statute. See United States v. Hill, 

 (2d Cir. 2018). In

contrast to a substantive violation of RICO under 

(c), which

requires proof of the commission of specifically listed state or federal crimes

(some of which are categorically violent crimes) as part of a “pattern of

racketeering” in the course of conducting the affairs of an enterprise, a RICO

conspiracy offense under §1962(d) requires only that a defendant “conspire” – in

other words, agree – to violate one of RICO’s substantive prohibitions.

      To be convicted of conspiracy under § 1962(d), the government must prove

only “that a defendant agreed with others (a) to conduct the affairs of an enterprise

(b) through a pattern of racketeering.” United States v. Basciano, 

(2d Cir. 2010) (emphasis added). The defendant “need not commit or even agree


                                           20
to commit the predicate acts.” United States v. Cain, 

 (2d Cir.

2012). He must only “intend to further an endeavor which, if completed, would

satisfy all of the elements of a substantive RICO offense.” 

 quoting Salinas v.

United States, 

 (1997) (alteration omitted). In other words, “the

agreement proscribed by section 1962(d) is a conspiracy to participate in a

charged enterprise’s affairs through a pattern of racketeering, not a conspiracy to

commit predicate acts.” United States v. Pizzonia, 

 (2d Cir. 2009)

(internal quotation marks and alterations omitted). Summarizing this long line of

cases, we recently explained that

             [t]he essence of a RICO conspiracy is the existence of an
             agreement to violate RICO’s substantive provisions.
             Though the substantive RICO offenses require proof of
             an enterprise and a pattern of racketeering activity, the
             establishment of an enterprise is not an element of the
             RICO conspiracy offense. The government need only
             prove that the defendant knew of, and agreed to, the
             general criminal objective of a jointly undertaken
             scheme. [To sustain a conviction, we must conclude
             that] the evidence permitted a conclusion that the
             defendant knowingly agreed with others to function as
             a unit for the common purpose of engaging in
             racketeering activity.

White, 

 (footnotes, citations, internal quotation marks, and

alterations omitted; alteration added).


                                          21
      RICO conspiracy is thus a crime that can be committed simply by sitting

around a table and agreeing with other individuals to create an organization like

the Leland Crew, that would engage in criminal acts like selling narcotics and,

indeed, committing various violent crimes, whether or not the organization ever

gets off the ground and whether or not the defendant, or any of his co-

conspirators, ever commits any of the anticipated crimes. Indeed, unlike the

general federal conspiracy law, 

, a RICO conspiracy does not even

require that any of the conspirators commit even a single overt act toward the

commission of such crimes. Salinas, 

.8

      The case of RICO conspiracy is thus indistinguishable from the case of

Hobbs Act conspiracy we faced in Barrett II, 

. As in that case, even



8
  The description above of the elements of RICO conspiracy does not just describe
“a theoretical possibility.” United States v. McCoy, 

 (2d Cir. 2021)
(internal quotation marks omitted). For example, this Court has affirmed a
defendant’s conviction of RICO conspiracy where the predicate racketeering acts
were completed outside the five-year limitations period, because “the agreement
proscribed by section 1962(d) is conspiracy to participate in a charged
enterprise’s affairs, not conspiracy to commit predicate acts,” and the conspiracy
thus continues until the “accomplishment or abandonment” of the broad
conspiratorial goals, even absent the commission of additional predicate acts.
United States v. Persico, 

 (2d Cir. 1987); see also Pizzonia, 

 (explaining that the government is not limited to the predicate acts that
were pleaded to prove a conspiracy to participate in an enterprise’s affairs).

                                          22
though the crimes that were the object of the conspiracy were crimes of violence,

and even though the particular acts committed by the defendant and his co-

conspirators during the course of the conspiracy were “violent, even

murderous,” id. at 128, the mere agreement to commit such crimes does not

require the use of force – or any action beyond the agreement itself – and

therefore is not categorically a violent crime.

      That this conclusion applies to RICO conspiracies as to others can come as

no surprise. We have said as much on several occasions, although our statements

could be seen, strictly speaking, as dicta, or were in the context of summary

orders. Thus, in Martinez we noted that “[w]e can assume that the [RICO]

conspiracy violation is not a crime of violence because . . . a conspiracy offense

cannot categorically involve the use of force, since its key element is simply an

agreement to commit a crime. . . . [and] because no violent act [i.e., no act

requiring use of force] . . . must be committed in order to be guilty of the

offense.” 

 (emphasis added; emphasis omitted). But in Martinez we

needed only to assume that this was so; because the defendant there pled guilty

to using a firearm in furtherance of both a conspiracy and a substantive RICO

offense, our conclusion that it was not plain error for the district court to have


                                          23
concluded that the substantive RICO charge in the indictment was a crime of

violence was sufficient to dispose of the case. In United States v. Heyward, we

quoted the above language from Martinez in concluding that a racketeering

conspiracy did not constitute a crime of violence even though one of the charged

predicate racketeering acts was a conspiracy to commit murder, because even a

conspiracy to commit murder “is not a qualifying offense under § 924(c).” 

, 82 (2d Cir. 2021) (emphasis in original).9 We similarly cited the Martinez

language in United States v. Kilpatrick, in support of the conclusion that “the

government correctly concedes . . . [that] it was a clear and obvious error for each

defendant to be convicted of the § 924(c) charge with the RICO conspiracy as the



9
 Heyward could be read as looking through the RICO conspiracy charge to the
underlying predicate acts to determine whether the RICO conspiracy was a crime
of violence, as the Martinez court noted is arguably to be done in the case of
substantive RICO charges. But any such implication was not necessary to the
decision, since the conclusion was that the RICO conspiracy in that case would
not be a crime of violence even if such an approach were correct. For the reasons
stated in the text, we do not think that a RICO conspiracy charge can be found to
be a crime of violence, regardless of the predicate crimes that were contemplated
in the agreement to form a racketeering enterprise. RICO conspiracies, like
murder conspiracies or Hobbs Act conspiracies, are not categorically crimes of
violence because conspiratorial crimes by their nature can be committed without
the use of force. Whether the goal of the RICO conspiracy is to create an
enterprise that will commit murder or will merely conspire to do so, the
agreement to form or conduct such an enterprise is not itself a violent crime.

                                         24
predicate crime of violence.” 

, at *2 (2d Cir. Aug. 3, 2021)

(summary order).

      Although these cases may not constitute binding precedent, their results

confirm that we have never, since the Supreme Court’s decision in Davis, upheld

a § 924(c) conviction predicated on a RICO conspiracy charge, and that we have

instead strongly suggested that RICO conspiracies, like other conspiracies to

commit violent crimes, do not categorically require the use of force, and thus are

not valid predicates for § 924(c) charges.10




10
   Prior to Davis, “it ha[d] long been the law in this circuit that a conspiracy to
commit a crime of violence [was] itself a crime of violence under 

(c)(3).” United States v. Barrett, 

 (2d Cir. 2018) (“Barrett I”),
vacated, 

 (2019). That conclusion was ultimately based on the logic,
traceable to United States v. Chimurenga, that “a conspiracy to commit an act of
violence is an act involving a substantial risk of violence.” 

, 404 (2d
Cir. 1985) (emphasis added), and that a conspiracy to commit a violent crime “by
its very nature presents a substantial risk of physical force” and is thus a violent
crime under the residual clause. Barrett I , 

. But Barrett I and many
other decisions applying the same logic to conspiracies to commit various violent
crimes (including RICO conspiracies with violent predicate acts), see United States
v. Desena, 

 (2d Cir. 2002) (conspiracy to commit assault in aid of
racketeering); United States v. Patino, 

 (2d Cir. 1992) (kidnapping
conspiracy); United States v. Praddy, 

, 23 (2d Cir. 2018) (summary
order) (RICO conspiracy “if at least one of its objects is committing a crime of
violence”); United States v. Scott, 

 (2d Cir. 2017) (summary
order) (same), have been abrogated by Davis’s invalidation of the residual clause.

                                          25
      In sum, it cannot be the case that RICO conspiracy categorically “has as an

element the use, attempted use, or threatened use of physical force against the

person or property of another.” 

(c)(3)(A). Thus, RICO conspiracy is

not a crime of violence.

      The government attempts to avoid this conclusion by characterizing

Capers’s offense as “aggravated RICO conspiracy” on the theory that “murder

was an element of the racketeering conspiracy [charged and proved in this case]

. . . thereby increasing the maximum penalty for” the crime. Govt. Letter (Dkt.

128) at 1-2; see also 

(a) (increasing the maximum statutory penalty

from twenty years to life “if the violation is based on a racketeering activity for

which the maximum penalty includes life imprisonment”). The operative

indictment included a notice of special sentencing factors that alleged that Capers

“caused the death of McQueen” and distributed or possessed with intent to

distribute “280 grams [or] more of . . . cocaine base” as part of the racketeering

conspiracy. App’x at 26. On its verdict sheet, the jury found both of those special

factors beyond a reasonable doubt. Thus, the government argues, the jury’s

finding necessarily means Capers’s conviction “involve[d] the use of physical




                                         26
force” because “murder was an element of the . . . conspiracy.” Govt. Letter (Dkt.

128) at 1.

       That argument, however, misconceives the nature both of RICO

conspiracy, as discussed above, and of the relevant sentence enhancement.

Assuming arguendo that the enhanced maximum sentence provision of § 1963(a)

in effect creates a separate crime of “aggravated RICO,” that provision references

the sentencing provisions of the predicate acts charged as parts of the alleged

pattern of racketeering activity to which the conspirators agreed to determine the

maximum sentence for the RICO conspiracy. In this case, the murder of

McQueen was charged as one of the racketeering acts constituting the pattern

through which Capers was alleged to have conspired to operate the Leland

enterprise. The maximum sentence to which he was subject was enhanced

because one of the crimes alleged as part of the object pattern of racketeering was

murder in violation of New York law, which carries a maximum penalty of life in

prison.11


11
  The enhanced penalty provision increased the maximum punishment to life in
prison “if the violation is based on a racketeering activity for which the maximum
punishment includes life imprisonment.” § 1963(a) (emphasis added). The
“racketeering activity” on which the RICO conspiracy charge was “based”
included an act of murder that carried such a maximum punishment, but it did

                                        27
      But Capers’s guilt of the offense charged in the indictment, including the

enhanced penalty element, was not dependent on whether he actually did

murder McQueen (though of course, the proof that he did murder McQueen was

highly probative of the charge that Capers had agreed to join an enterprise that

was dedicated, among other criminal goals, to murdering enemies of the Leland


not require proof that the murder that was among the objects of the conspiracy
actually came to fruition in order for the maximum penalty to apply. There is
nothing unusual about that; federal conspiracy statutes often provide the same
punishment for those who actually commit an offense or for those who
“attempt[ ] or conspire[ ]” to do so. 

(a) (extortion or robbery that
obstructs interstate commerce); 

 (narcotics offenses). RICO
similarly applies the same punishment to violations of both the substantive and
conspiracy provisions of the statute. See 

(a) (applying same
penalties for violating “any provision of section 1962.”) (emphasis added).
        The out-of-circuit cases that the government cites its in letter brief are
inapposite because those cases analyzed whether “conspiracies that are
categorically defined to result in death” are crimes of violence. United States v.
Tsarnaev, 

 (1st Cir. 2020) (discussing provision punishing
conspiracies to plant bombs in public places where “death results” with death or
life in prison, 18 U.S.C. §§ 2332f(a), 2332a(a)); see also United States v. Runyon, 

 (4th Cir. 2021) (discussing a “death results” element in murder
for hire statute, 

(a)). Both opinions recognize that conspiracies to
commit violent crimes ordinarily are not themselves violent crimes, but
distinguish statutes requiring a finding that “death results.” Tsarnaev, 

; Runyon, 

. However, as described above, the enhanced penalty
provision that applied to Capers did not require the government to prove that a
death actually resulted from the commission of the conspiratorial offense. See
United States v. McClaren, 

 (5th Cir. 2021) (distinguishing Tsarnaev
and Runyon from aggravated RICO conspiracy because of the “death results”
element); United States v. Simmons, 

 (4th Cir. 2021) (same).

                                          28
Crew). The indictment charged not that Capers participated (in violation of

§ 1962(c)) in conducting the affairs of the enterprise through a pattern of

racketeering that included the murder of McQueen, which would have required

proof beyond a reasonable doubt that he committed at least two specified

racketeering acts, but that he and a co-defendant “knowingly combined, conspired,

confederated, and agreed together and with each other to violate § 1962(c),” by

engaging in a pattern of racketeering acts that included murder, in violation of

§ 1962(d). S5 Superseding Indt., ¶¶ 8, 8(a)(iii) (emphasis added). As explained

above, that crime required proof beyond a reasonable doubt only that Capers and

others agreed to do those things, not that Capers (or anyone else, for that matter)

ever actually committed those crimes.

      RICO, including RICO conspiracy, is an “unusual[ly] complex crime”

covering “a multitude of sins” ranging from mail fraud to murder. Martinez, 

. But even assuming that the substantive RICO crime defined in

§ 1962(c) can sometimes be considered a violent crime by applying a variant of

the modified categorical approach based on the particular predicate acts found to

be parts of the charged pattern of racketeering (a theory that we concluded in

Martinez was at least not plain error to adopt), the relationship between


                                         29
substantive and conspiracy RICO crimes presents a simpler problem. That

relationship is precisely the same as that between other substantive crimes

(including violent crimes) and the crime of conspiracy to commit them. Even

where the substantive crime that is the object of a conspiracy necessarily requires

the use of force, a conspiracy to commit it does not. Thus, the district court erred

in instructing the jury that RICO conspiracy is a crime of violence.

             2. The Error is Clear and Obvious.

      Next, the government argues that even if the district court’s jury

instruction was erroneous, that error is not clear or obvious. Whether there is an

error that is clear or obvious “‘is established at the time of the appeal,’ not as of

the time that the district court ruled.” Martinez, 

, quoting United

States v. Dussard, 

 (2d Cir. 2020). The government is correct that,

until now, this Court has not, since Davis and Barrett II, addressed in a published

opinion whether RICO conspiracy is a crime of violence.12 However, there is


12
  In two summary orders, we have characterized RICO conspiracy as a crime of
violence where “the jury finds two RICO predicates constituting crimes of
violence have been proven” because “conspiracy to commit that crime is itself a
crime of violence.” Scott, 

, citing Elder, 

; see also
Praddy, 729 F. App’x at 23. However, Scott and Praddy predated Davis, and relied
on the rationale articulated in Elder, which, as explained above, has been
abrogated by Davis and Barrett II.

                                          30
certainly no rule that an “absence of circuit precedent” precludes a finding of

plain error. See United States v. Murphy, 

 (2d Cir. 2019) (finding

plain error despite this Court not having made an “explicit” determination on the

issue). Instead, we must determine whether the error is “clear under current

law.” United States v. Olano, 

 (1993).

      Davis and Barrett II, decided while this appeal was pending, clearly

foreshadowed the conclusion that we reach today. In fact, we alluded to this

exact conclusion in a prior opinion. See Martinez, 

 (“We can assume

that [RICO conspiracy] is not a crime of violence under the force clause because,

as the Supreme Court's decision in Davis reasoned, a conspiracy offense cannot

categorically involve the use of force . . . .”) (emphasis omitted). Furthermore,

every one of our sister circuits to have considered post-Davis whether RICO

conspiracy (“aggravated” or not) is a crime of violence has held that it is not. See

United States v. McClaren, 

 (5th Cir. 2021); United States v.

Simmons, 

 (4th Cir. 2021); United States v. Green, 

 (11th Cir. 2020); United States v. Jones, 

 (5th Cir. 2019);

United States v. Davis, 

, 360-61 & n.2 (9th Cir. 2019). Lastly, this

Court has long described the RICO conspiracy statute as “most closely analogous

                                          31
to other conspiracy statutes pursuant to which overt acts in furtherance of the

conspiracy need not be pleaded or proven,” such as Hobbs Act robbery

conspiracy, United States v. Persico, 

 (2d Cir. 1987), and Barrett II

made clear that Hobbs Act robbery conspiracy is not a crime of violence, 

. Thus, Barrett II further supports our conclusion that it is sufficiently “clear

or . . . obvious” that RICO conspiracy is not a crime of violence “under current

law.” Olano, 

. The district court’s erroneous instruction therefore

satisfies the first two plain error criteria.

              3. Effect on Substantial Rights

       Capers was charged in Count Five with a § 924(j) sentence enhancement

based on his conviction of “either the racketeering conspiracy charged in Count 1

[as a crime of violence] or the drug trafficking conspiracy charged in Count 3 [as

a drug trafficking crime].” Tr. at 965 (emphasis added). The jury’s verdict was

general. It marked “[g]uilty” in response to a question asking “How do you find

the Defendant James Capers with respect to Count Five?” App’x at 293. The jury

did not delineate whether it based its Count Five conviction on the RICO

conspiracy, the narcotics conspiracy, or both. Capers argues that the district

court’s error requires that we vacate his § 924(j) conviction because “there is no


                                            32
way of knowing whether the guilty verdict was based on [that] error.”

Appellant’s Supp. Br. (Dkt. 75) at 12. The government urges us to affirm the

conviction because “it was clearly supported by a narcotics conspiracy predicate

presenting no legal concern.” Govt. Supp. Br. (Dkt. 82) at 22.

      This case comes on appeal under plain error review, and we correct such

errors “only where the appellant demonstrates that . . . the error affected the

appellant’s substantial rights . . . [and] seriously affects the fairness, integrity or

public reputation of judicial proceedings.” United States v. Marcus, 

 (2010) (internal quotation marks omitted). “In the ordinary case . . . to have

impacted [a defendant’s] substantial rights and the fairness . . . of the judicial

proceedings, the overall effect of the . . . error must have been sufficiently great

such that there is a reasonable probability that the jury would not have convicted

him absent the error.” United States v. Marcus, 

 (2d Cir. 2010)

(emphasis added).

      Under the rule of Yates v. United States, 

 (1957), overruled on

other grounds by Burks v. United States, 

 (1978), an instructional

error is of serious concern “where disjunctive theories of culpability are

submitted to a jury that returns a general verdict of guilty, and one of the theories


                                           33
was legally insufficient. In such circumstances, it is impossible to tell which

ground the jury selected, the legally sufficient ground or the insufficient one.”

United States v. Agrawal, 

 (2d Cir. 2013) (internal quotation

marks, citations, and alterations omitted).13 When we detect a Yates error of the

sort at issue in this case, plain error review requires us to determine whether the

defendant was “prejudiced by the error” by asking whether “the erroneous jury

instruction was harmless beyond a reasonable doubt.” Eldridge, 

 &

n.16 (internal quotation marks omitted). Because Capers has shown “a reasonable

probability that the jury may not have convicted him” on the § 924(j) count

absent the district court’s error, Marcus, 

, we agree that his

conviction should be vacated.

      Relying on our decision in United States v. Vasquez, 

 (2d Cir.

2016) (summary order), the government argues that Capers cannot demonstrate


13
  In contrast, where one of two alternative theories of liability fails for
evidentiary insufficiency, we may assume that the jury relied on the theory that
was sufficiently supported, and did not perversely return a guilty verdict based
on a theory that was supported by such weak evidence that no reasonable jury
could have accepted it. See United States v. Rutkoske, 

 (2d Cir.
2007) (citations omitted) (“[T]he Supreme Court has held that a verdict should be
affirmed when two theories of an offense are submitted to the jury and the
evidence supports one theory but not the other. In such cases, courts assume that
the verdict is based on the valid theory.”).

                                          34
that any error affected his conviction because the invalid racketeering conspiracy

predicate “was ‘inextricably intertwined’ with the charged narcotics conspiracy.”

Govt. Supp. Br. (Dkt. 82) at 22-23, quoting Vasquez, 

.14 To

support its position, the government points to the jury’s unanimous agreement

that the pattern of racketeering activity involved the murder of McQueen and a

narcotics conspiracy, its finding in Count Three that Capers participated in a

narcotics conspiracy, and the fact that the jury was instructed that a conviction on

the § 924(j) count could be predicated on either the racketeering conspiracy

charged in Count One or the narcotics conspiracy charged in Count Three or

both. Thus, in the government’s view, the “[s]ection 924(j) conviction undoubtedly

rested on a valid drug-trafficking predicate” because there is a drug trafficking




14
   The government notes that “Capers does not argue that his claim . . . calls for
this Court to employ a modified plain error analysis under which the
Government would bear the burden of demonstrating that any error did not
affect a defendant’s substantial rights.” Govt. Supp. Br. at 17 n.5; see United States
v. Viola, 

 (2d Cir. 1994) (placing burden on the government “to show
that plain error in light of a supervening decision did not affect substantial rights
. . . when the supervening decision alters a settled rule of law in the circuit”)
(emphasis in original). The “modified” plain error review articulated in Viola,
however, has been “clearly abrogated” by the Supreme Court. Eldridge, 

. Thus, Capers bears the burden of showing that the error affected his
substantial rights.

                                          35
component to both predicate counts. Govt. Supp. Br. (Dkt. 118) at 9 (alteration

omitted; emphasis added).15

      But that conclusion does not necessarily follow. It is true that the jury made

two findings of guilt that, in theory, could be predicates for a § 924(j) conviction:

the narcotics conspiracy charged in Count Three and the narcotics conspiracy

charged as a predicate racketeering act in Count One, both of which are “drug

trafficking crime[s].” 

(c)(2). The jury also found that Capers used a

gun and caused death in furtherance of at least one of either the RICO conspiracy

charged in Count One or the narcotics conspiracy charged in Count Three. But

none of the jury’s instructions required it to make a specific finding that either the

narcotics conspiracy predicate to the RICO conspiracy offense or the narcotics

conspiracy charged in Count Three was the basis for its § 924(j) verdict.




15
   The government appears to assume that the narcotics conspiracy charged as a
predicate in Count One is the same conspiracy charged in Count Three, but that
assumption is not necessarily supported by the record. The court never
instructed the jury of a need to find that the narcotics conspiracy in Count One
was the same as charged in Count Three, and the verdict sheet specified a finding
only that the RICO conspiracy involved “a conspiracy to distribute or possess
with intent to distribute narcotics.” App’x at 290 (emphasis added). Furthermore,
the indictment describes the membership in the two conspiracies differently in
that Count One specifies the Leland Crew whereas Count Three does not.

                                          36
      The jury’s general verdict thus does not definitively say whether the killing

of McQueen was in furtherance of either the narcotics conspiracy predicate in

Count One or the narcotics conspiracy charged in Count Three, as opposed to the

general RICO conspiracy charged in Count One. Of course, if it were clear that the

jury found that Capers used a gun in furtherance of the narcotics conspiracy

charged as a predicate act in Count One, that would be enough to affirm Capers’s

conviction, because it would mean that the jury necessarily rested its verdict on a

drug trafficking crime. But we cannot assume that the jury made that finding,

and to whatever extent the jury relied on Count One as the predicate for the

Count Five conviction, it does not follow that it found that the murder was in

furtherance of any particular predicate racketeering act.

      It is entirely plausible that the jury rested its Count Five verdict on the

general RICO conspiracy. Count One charged that the overall conspiracy had as

its goals not only the promotion of the gang’s drug enterprise, but also “to

protect fellow members and associates of the Enterprise,” and that its violent

acts, including murder, were “intended either to protect the Enterprise’s drug

territory, retaliate against members of rival gangs who had encroached on the

territory controlled by the Enterprise, or to otherwise promote the standing and


                                         37
reputation of the Leland Avenue Crew amongst rival gangs.” App’x at 21. The

purposes of the Enterprise as a whole were described as including, in addition to

narcotics-related goals:

             a. Preserving and protecting the power, territory, and
             profits of the Enterprise through murder, attempted
             murder, robberies, and other acts of violence, and
             threats of violence[,]
             b. Promoting and enhancing the Enterprise and the
             activities of its members and associates[, and]
             c. Keeping victims and potential victims in fear of the
             Enterprise and its members and associates through acts
             and threats of violence.

Id. Thus, the jury could have based its verdict on a finding that Capers killed

McQueen in retaliation for the murder of the Leland Crew’s leader in order to

“promote the standing and reputation” of the Leland Crew and to keep its rivals

“in fear of the Enterprise and its members.” Id. That would suffice to convict if (as

the jury was instructed) the Count One conspiracy were a crime of violence. Such

a conclusion by the jury would have been supported by the evidence, and would

not have referenced any narcotics conspiracy.

      Nor can we conclude, based on the government’s theory at trial, that the

predicate acts supporting the RICO conspiracy were “intertwined” with the

narcotics conspiracy in Count Three, as the predicate offenses were in Vasquez. In


                                         38
that case, we concluded that a defendant’s § 924 convictions predicated on two

“inextricably intertwined” offenses, one of them a drug trafficking crime,

“present[ed] no legal concern.” Vasquez, 

. Vasquez was

convicted of §§ 924(c) and (j) charges predicated on conspiracy to commit Hobbs

Act robbery and a narcotics conspiracy. Id. at 60. After assuming that Hobbs Act

robbery conspiracy was not a crime of violence – an assumption later confirmed

by this Court in Barrett II – we sustained the convictions on the ground that the

charges were “clearly supported by a narcotics predicate” because the sole theory

presented at trial was that a co-conspirator fatally discharged a firearm “to rob

drug dealers and to distribute any recovered narcotics.” Id. at 61. Since the goal of

the robbery conspiracy was to obtain narcotics to distribute, the robbery

conspiracy was itself an integral part of the narcotics conspiracy. Thus,“the

robbery was an act inextricably intertwined with . . . the charged narcotics

conspiracy, . . . the jury found that narcotics conspiracy proved beyond a

reasonable doubt,” and the murder occurred during the joint commission of

those two crimes. Id.

      But that is not what happened here. The RICO conspiracy was not

“presented as part of the proved narcotics scheme.” Id. Instead, it charged Capers


                                         39
with a broad conspiracy to violate the substantive RICO statute from 2009 to

2015, and the jury convicted Capers of that charge after finding that he agreed

that he or a co-conspirator would participate in the conduct of the affairs of

Leland through a pattern of racketeering activity that included the murder of

Allen McQueen and the distribution or possession of narcotics. There is no

indication that the RICO conspiracy was “inextricably intertwined” with the

separately charged narcotics conspiracy in Count Three. Id. Nor is there any

indication that the two predicate acts supporting the RICO conspiracy were

necessarily connected.

      In short, the jury found Capers guilty of conspiring to violate RICO and

that various unspecified narcotics crimes were part of the pattern that was the

object of the RICO conspiracy. The jury’s verdict on RICO conspiracy means that

it necessarily found that Capers agreed to further a criminal plan that would

involve people selling drugs, among other things, but that says nothing about

what, if anything, Capers personally would do to participate in the predicate

narcotics conspiracy, nor does it say anything about whether the killing of

McQueen was in furtherance of that narcotics conspiracy, rather than in the

broader interest of the enterprise in furthering its violent dominion.


                                         40
      Undoubtedly, as discussed above, the evidence at trial would have

permitted the jury to base a § 924(j) verdict on a finding that his use of a firearm

to murder of McQueen was in furtherance of the narcotics conspiracy charged in

Count Three. Capers argues, however, that, because the jury acquitted him of a

separate count (Count Four) charging him with committing murder “while

engaged in” the conspiracy charged in Count Three in violation of 

(e)(1)(A), App’x. 29-30, it is “far from speculative” to conclude that the jury

may have reached a different verdict as to Count Five had it not been instructed

that RICO conspiracy is a crime of violence. Appellant’s Supp. Br. (Dkt. 75) at 15.

In his view, that acquittal presents a reasonable likelihood that “the jury rejected

the government’s contention that the McQueen murder was in furtherance of or

even in relation to narcotics distribution.” Appellant’s Supp. Br. (Dkt. 117) at 10.

      Of course, we are not in the business of policing verdicts for the

consistency of the jury’s findings of guilty and not guilty on various counts. See,

e.g., United States v. Powell, 

 (1984) (explaining that inconsistent

verdicts are unreviewable on appeal). But that is not what Capers is asking us to

do. One reason we do not evaluate verdicts for inconsistency is to avoid

“inquiring into a jury’s thought processes,” 

, because a jury may reach an


                                          41
inconsistent conclusion due to “mistake, compromise, or lenity” and it is often

“unclear whose ox has been gored,” 

. Here, however, Capers is not

arguing that there is an inconsistency between the jury’s verdicts on different

counts that we must review and correct. Instead, he has identified an

independent error, and to receive relief, he bears the burden of showing that the

error is “sufficiently great such that there is a reasonable probability that the jury

would not have convicted him absent the error.” Marcus, 

. A

defendant may attempt to meet that high burden by pointing to the jury’s

verdicts on other counts as evidence of what the jury might have done if the error

were not present. That is what Capers has done here.

      To meet his burden under plain error review, Capers must show that he

was “prejudiced by the error,” which, when raising a Yates issue on a § 924(c)

conviction, requires the defendant to show that the error was not “harmless

beyond a reasonable doubt.” Eldridge, 

 & n.16 (internal quotation

marks omitted). In assessing a defendant’s arguments, we often look to verdicts

on other counts to see whether those verdicts clarify the verdict on the Yates-

affected count by showing that the jury, in convicting on other counts, necessarily

made findings that would require a guilty verdict on the contested count on a


                                          42
theory independent of the instructional error. It is thus entirely appropriate for a

court to consider the jury’s verdicts on other counts if those verdicts are relevant

to determining whether “the jury would have returned a guilty verdict . . . if” the

valid predicate were the only predicate charged. 

; cf. 

 (looking

at the jury’s convictions as to three counts and noting that those verdicts

“reinforced the conclusion” that the Yates error was harmless beyond a

reasonable doubt).

      In this case, the split verdict supports Capers’s argument. There is no

particular reason to relate the firearm-murder conviction to a specific subpart –

the narcotics conspiracy – of the racketeering charge, rather than to the entire

racketeering conspiracy. Nor can that conviction be persuasively connected to the

narcotics charge in Count Three, given that the jury acquitted Capers on Count

Four, which charged him with murdering McQueen while “engaging in” the

narcotics conspiracy charged in Count Three. 

(e)(1)(A). The district

court instructed the jury that it could convict Capers of Count Four if the murder

was “in some way related or connected” to the narcotics conspiracy, Tr. at 963,

but the jury evidently declined to make that finding beyond a reasonable doubt.

It is not plausible to infer from the pattern of verdicts that the jury necessarily


                                          43
convicted Capers on Count Five on the theory that he murdered McQueen “in

furtherance of” the drug trafficking conspiracy charged in Count Three, 

(c)(1)(A), after it declined to find that the murder was “in some way related

or connected,” Tr. at 963, to that same narcotics conspiracy. Thus, the Count Four

acquittal supports Capers’s position that the district court’s error is not harmless

beyond a reasonable doubt.16

      We thus cannot infer from the pattern of the jury’s verdicts that it

necessarily rested its guilty verdict on the firearm-murder charge either on the

narcotics conspiracy of which he was convicted under Count Three or on the

narcotics conspiracy (assuming it was not quite the same conspiracy) charged as

one of the predicate acts that were agreed to in the RICO conspiracy charged in

Count One. It follows that there is a reasonable probability that the jury found

him guilty on Count Five based on the theory that the use of a firearm to murder

McQueen was in furtherance of the general conspiracy to operate the Leland

Crew enterprise through a pattern of racketeering as charged in Count One, as it


16
  That the jury also acquitted Capers of murder in aid of racketeering does not
undermine our reasoning. In order to avoid a reversible Yates error, we must find
that the error was not harmless beyond a reasonable doubt. The question before
us is thus whether jury’s verdicts preclude such a finding by establishing that the
jury must have found that the killing of McQueen was tied to a narcotics crime.

                                         44
was instructed – erroneously – that it could do. It follows that the error affected

Capers’s substantial rights.

             4. The Error Seriously Affects the Fairness and Integrity of the
             Proceedings.

      The last factor need not detain us long. Perhaps some members of the

public might shrug off the elaborate analysis that we have been required to

undertake. Some might be perplexed as to why, in assessing whether a crime

should be called “violent,” we look to how a crime might in theory be committed

under its definition, rather than at the fact that the crime the defendant actually

committed manifestly involved severe violence, or why the Supreme Court

concluded that neither ordinary citizens nor trained judges can reliably

determine whether a crime, “by its nature, involves a substantial risk” that

physical force will be used in its commission. Lay readers may also wonder why

these inquiries lead to the possibility that a man who concedes that he committed

a murder is not guilty of the particular homicidal crime that he was charged with

in federal court.

      But at the end of the day, we are bound by the Constitution that effectively

restricts the federal government to prosecuting murders only under specified



                                           45
conditions, by the words of the statutes adopted by Congress in defining the

offenses it has chosen to create, and by the decisions of the Supreme Court

interpreting both the Constitution and those statutes. We cannot uphold a

conviction where there is a reasonable likelihood that the jury may have returned

a guilty verdict based on a theory that it was erroneously told would justify a

conviction for violating the statute under which the defendant was charged. To

ignore such an error on the ground that even if the defendant was not guilty of

the crime of which he was convicted, he was certainly guilty of an equally serious

crime with which he could have been charged in a state court would surely

compromise the fairness of the proceedings and the integrity of the judicial

system.

      At the same time, we note that, as we have held above, the evidence

presented here was sufficient to permit a properly instructed jury to convict on

Count Five. We vacate the conviction on that count not because Capers

necessarily should be exonerated as a matter of law of the crime charged, but

rather because an erroneous jury instruction makes it impossible to be confident

that the jury convicted him on an appropriate set of findings. The proper remedy,




                                        46
accordingly, is not to dismiss the charge, but to remand for further proceedings,

including a new trial if the government chooses to pursue the count further.

      Moreover, even if the government chooses not to proceed on that count,

the erroneous conviction affected not just the sentence imposed on that count, but

the entire sentence imposed on Capers for all the counts of conviction. The

sentence of only five years in prison for the murder charge that was the most

serious count of conviction, while a sentence of thirty-seven years was imposed

on other charges, cannot be the product of a conclusion that the murder of

McQueen warrants only a five-year sentence. Especially given that the murder

was itself a predicate act that was an object of the RICO conspiracy, one might

expect a court to have imposed concurrent terms on all counts, based on an

integrated assessment of the appropriate sentence for Capers based on the

totality of the circumstances, including the murder. But that course was

precluded by the fact that the firearm-murder charge mandated a sentence

consecutive to the sentence imposed on other counts of conviction. See 

(c)(1)(D)(ii) (prohibiting imposition of concurrent terms for the firearm

charge and the underlying predicate crime). It therefore appears likely that the

court imposed the total sentence it believed appropriate for the conduct proved


                                         47
at trial, and constructed a pattern of sentences on the individual counts that

would effectuate that result consistent with the consecutive sentence mandate of

§ 924(c), as it was fully authorized to do, see Dean v. United States, 

(2017).

      Accordingly, we remand with instructions to the district court to consider

whether to vacate the entire sentence and impose a new judgment and sentence

as it deems appropriate, or to allow the sentences on the counts other than Count

Five to stand.

      B. Does a Killing Constitute Murder Under the Relevant Statutes Only if
      it is Premeditated?

      Capers also argues that the judge erred by failing to instruct the jury that to

constitute murder in violation of § 924(j) a killing must be premeditated. Capers

acknowledges that he did not object to the judge’s charge on this ground in the

district court, and that our review must therefore be only for plain error. Since we

have already determined that the conviction must be vacated and the matter

remanded for a new trial based on a different error, it is not strictly necessary to

address that argument to determine this appeal. Now that appellate counsel has

identified the issue, however, it is predictable that, if the government elects to



                                          48
retry Capers on Count Five, Capers will seek such an instruction at that trial.

Accordingly, in the interests of judicial economy, we exercise our discretion to

address the issue for the guidance of the district court on any retrial. See United

States v. Hardwick, 

, 102 n.8 (2d Cir. 2008) (citations omitted) (“When a

retrial is a possibility, we routinely rule on fully argued issues that will arise in

such a retrial, lest serial appeals, reversals, and multiple trials result.”).

       Fortunately, the issue is easily resolved. Capers’s argument fails because

the lower court’s failure to give a premeditation instruction was not erroneous at

all, let alone plainly so.

       Capers was charged with murder under § 924(j)(1). Under that provision, a

person who causes the death of another by the use of a firearm in the course of a

violent or narcotics felony is subject to capital punishment or imprisonment up to

a maximum of life “if the killing is a murder (as defined in [18 U.S.C. §] 1111)”;

under § 924(j)(2), lesser penalties are provided if the killing constitutes

manslaughter as defined in § 1112. Capers, through selective quotation of § 1111,

contends that murder is defined in that provision to require premeditation.

       That is simply not the case. Section 1111(a) provides, in full, as follows:




                                           49
                 Murder is the unlawful killing of a human being with
             malice aforethought. Every murder perpetrated by
             poison, lying in wait, or any other kind of willful,
             deliberate, malicious, and premeditated killing; or
             committed in the perpetration of, or attempt to
             perpetrate, any arson, escape, murder, kidnapping,
             treason, espionage, sabotage, aggravated sexual abuse
             or sexual abuse, child abuse, burglary, or robbery; or
             perpetrated as part of a pattern or practice of assault or
             torture against a child or children; or perpetrated from a
             premeditated design unlawfully and maliciously to
             effect the death of any human being other than him who
             is killed, is murder in the first degree.
                 Any other murder is murder in the second degree.

(a).

      On a plain reading of the statute, the first sentence defines “murder.” The

definition is brief and (at least to any lawyer schooled in the common-law

tradition) straightforward: “Murder is the unlawful killing of a human being

with malice aforethought.” The remainder of the section is concerned not with

the definition of murder, but with the division of murder into two degrees. First-

degree murder includes murders that are premeditated, as well as murders

committed by certain means or in the course of certain felonies; all murders that

do not fit into those categories fall into the residual category of murder in the

second degree.



                                         50
      A lay reader might think that the “malice aforethought” element of the

definition of murder is largely a synonym for “premeditated.” But that natural

reading is absolutely precluded by history; “malice aforethought” is a traditional

term of art in the common law. As the American Law Institute described the

common-law background of the phrase:

             At common law, murder was defined as the unlawful
             killing of another human being with malice
             aforethought. Whatever the original meaning of that
             phrase, it became over time an arbitrary symbol used by
             judges to signify any of a number of mental states
             deemed sufficient to support liability for murder.

Amer. Law Inst., Model Penal Code and Commentaries, § 210.2 cmt. 1 at 13-14

(footnotes and internal quotation marks omitted). “First and foremost” among

those mental states was “intent to kill.” Id. at 14.17



17
  Other commonly accepted types of “malice” at common law included
awareness that death would occur from the defendant’s actions even if that result
was not specifically desired; intent to cause grievous bodily harm; killings that
resulted from extremely reckless conduct characterized as “depraved heart”
murders; and the intention to commit a felony. Amer. Law Inst., Model Penal
Code and Commentaries, § 210.2 cmt. 1 at 14-15. Though these categories may be,
roughly speaking, incorporated into the meaning of malice in § 1111, we make no
attempt to catalogue the full scope of that section, and note the common-law
categories simply in order to give a general account of the historical meaning of
the term “malice aforethought”and to demonstrate that the term extends beyond
killings that are premeditated.

                                           51
      The term “premeditation” entered the law via the enactment, in

Pennsylvania in 1794, of the first statute dividing murder into degrees and

limiting first-degree murder to premeditated killings and a few other

circumstances in a manner nearly identical to the federal statute now codified as

§ 1111. Id. cmt. 2 at 16. Any killing that was not premeditated but was

nevertheless committed with the intent to kill remained murder (unless it

qualified for the partial defense of provocation that would reduce the crime to

manslaughter), but was classified as murder in the second degree. Section 1111

thus essentially codifies the common-law meaning of murder, as modified by the

practice, inaugurated in America and still common to many states, of dividing

murder into degrees (and limiting the death penalty to murders defined as first-

degree).

      It is not necessary here to define the precise, and long-controverted,

contours either of “premeditation” or of the provocation that would reduce an

intentional killing to manslaughter. The first issue is irrelevant because § 924(j)(1)

applies to all murder, and does not limit its reach only to murder in the first

degree. The second is irrelevant because Capers makes no claim that his killing of

McQueen would constitute manslaughter. What is important here is that there is


                                          52
no plausible argument that “premeditation” is required for a killing to constitute

murder as defined in §§ 924(j)(1) and 1111. We have, indeed, so recognized, albeit

in a summary order. United States v. Gonzalez, 399 Fed. App’x 641, 647 (2d Cir.

2010). Other circuits agree. See, e.g., United States v. Julian, 

(11th Cir. 2011); United States v. Williams, 

 (4th Cir. 2003); United

States v. Ricketts, 

 (6th Cir. 2003).18 Lest there be any doubt, we

now make the point clear in a published opinion.

                                   CONCLUSION

      Accordingly, the judgment of the district court is VACATED as to Count

Five. We otherwise AFFIRM the judgment of the district court and REMAND for

further proceedings consistent with this Opinion, with authorization to the

district court in its discretion to vacate the sentences and resentence the

defendant on all counts due to the elimination of the sentence on Count Five.




18
  The cases from other circuit courts cited by Capers as purportedly holding that
premeditation is required for a murder conviction are plainly inapposite, as they
are cases in which the defendant was charged with first-degree murder. United
States v. Delaney, 

 (7th Cir. 2013); United States v. Dale, 

 (8th Cir. 2010). The cited cases thus referred to premeditation as an
element of first-degree murder, and in no way suggest that it is an element of all
classes of murder.

                                           53