USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v. 	DECISION AND ORDER
09-CR-331-A
DOMENICO ANASTASIO,
Defendant.
I. 	BACKGROUND
The Court presumes the parties’ familiarity with the procedural history of this
case, which is outlined in the Second Circuit’s decision in United States v. Delgado,
972 F.3d 63, 74 (2d Cir. 2020), as amended (Sept. 1, 2020), cert. denied sub nom.
Anastasio v. United States, No. 20-6381, 2021 WL 78428 (U.S. Jan. 11, 2021), as
well as prior proceedings before this Court, as well as the record, the arguments
raised, and issues that are under review.
Briefly stated, following a jury trial, Defendant Domenico Anastasio was
convicted of three crimes: one count of RICO conspiracy, under 18 U.S.C. §1962(d),
which included findings on two “special factors” that, as part of such RICO
conspiracy, Defendant intentionally caused the deaths of Brandon MacDonald and
Darinell Young in violation of New York Penal Law §§125.25(1) and 20.00 (the so-
called “murder enhancements”); and two counts of murder in aid of racketeering,
under 18 U.S.C. §§1959(a)(1) and (2) (VCAR murder counts). Following such
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convictions, this Court sentenced Defendant on each count to concurrent terms of
imprisonment of life. (Dkt. No. 2191).
On appeal, the Second Circuit affirmed the Defendant’s conviction for RICO
conspiracy, while reversing the Defendant’s convictions for two VCAR murder counts
as well as the murder enhancements and remanded the case for resentencing. See
United States v. Delgado, 972 F.3d 63, 74 (2d Cir. 2020), as amended (Sept. 1,
2020), cert. denied sub nom. Anastasio v. United States, No. 20-6381, 2021 WL
78428 (U.S. Jan. 11, 2021). Specifically, the Circuit noted that Defendant did not
personally participate in the shooting of MacDonald and Young and “did nothing to
further the criminal act or contribute toward its success.” United States v. Delgado,
972 F.3d at 78 (quotations and alterations omitted). Absent “proof that [] defendant
performed some act that ‘directly facilitated or encouraged’ the commission of a
substantive crime [i.e., murder],” see, United States v. Delgado, 972 F.3d at 75, the
Circuit determined that Defendant “did not aid or abet the two murders as a matter of
federal law” nor “act as an accomplice within the meaning of New York Penal Law.”
United States v. Delgado, 972 F.3d at 79.
As a result, the Court reversed Defendant’s convictions under both the VCAR
Murder Counts and the murder enhancements of the RICO conspiracy count. In
reversing the VCAR counts and the murder enhancements, the statutory maximum
term of imprisonment that Defendant is facing at resentencing has been reduced
from life to twenty years. See, 18 U.S.C. §1963(a).
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Following the remand, a Revised Presentence Investigation Report (PSR)
was prepared which determined that with a Total Offense Level of 43 and a Criminal
History Category of I, Defendant faced a Guideline’s “range” of imprisonment of 240
months. (Dkt. No. 2344, ¶100). While the Government agreed with the PSR (Dkt.
No. 2346), Defendant objected to the PSR’s conclusion that his relevant conduct
ought to include: the murders of MacDonald and Young; the attempted murders of
D.M., P.D., A.W., and M.A.; as well as drug equivalency of 2,023 kilograms of
marijuana. (Dkt. No. 2321, ¶4).1 Both the Government (Dkt. Nos. 2354, 2367) and
Defendant (Dkt. Nos. 2362, 2388, 2400) filed memoranda, and oral argument was
held before the Court (Dkt. No. 2410).
The Conspiracy and Defendant’s Role in It:
The RICO conspiracy count of which Defendant was convicted included as its
objects: multiple acts involving murder; robbery; conspiracy to distribute, distribution
of, and use of premises to distribute, controlled substances; and witness tampering.
(Dkt. No. 408, p.11). The Indictment further indicated that the means by which such
objects were accomplished included: the distribution of quantities of cocaine,
1 While the Defendant expressed objections to the PSR’s inclusion of the attempted
murders and drug quantity as part of his relevant conduct, his objections with respect to
each are conclusory. With regard to the attempted murders, he simply argues that he
was never charged or convicted of either attempted murder or aiding and abetting
attempted murder and that such acts are not “within the scope of [his] jointly undertaken
criminal activity.” (Dkt. No. 2321, p.7). With regard to drug quantity, Defendant argues
that the trial testimony does not support a calculated converted drug weight of 2,023
kilograms of marijuana. (Dkt. No. 2321, p.7). In view of the fact that, this Decision
and Order directs that an updated PSR be prepared, this Court, at this time, declines
to decide Defendant’s undeveloped objections regarding the attempted murders and
drug quantity.
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cocaine base, marijuana, heroin, and ecstasy; acts of violence and shootings,
including acts involving murder, against rival gang members, associates of rival
gang members, and other individuals and other persons involved in the distribution
of controlled substances on the West Side of Buffalo; the use, carrying, and
possession of firearms; the intimidation of victims and rivals (Dkt. No. 408, p.12-13).
At trial, the proof established that in about 2000, Defendant, while a teenager,
became a 10th Street gang member. (Dkt. No. 1870, pp. 7, 17-18). The 10th Street
gang was in a street war with the rival 7th Street gang. Defendant and the other
members of the 10th Street gang were expected to retaliate, against members of the
rival 7th Street gang and others for acts of violence committed against 10th Street
gang members. The proof further established that the 10th Street gang maintained
an arsenal of firearms, and that Defendant was known—amongst other 10th Street
gang members—to be someone who possessed firearms. Defendant himself had a
.25 caliber handgun at his house which he stashed in the 10th Street Park (Dkt. No.
1861, pp. 81-82; Dkt. No. 1865, pp. 42-47). Defendant also purchased a .20-gauge
shotgun from Kyle (a/k/a “Canilla Boy”), one of the 10th Street gang’s drug
customers. (Dkt. No. 1861, pp.63-65). Defendant would bring the .20-gauge
shotgun to the park and to a house on a 10th Street where gang members sold crack
(Dkt. No. 1861, p.63; Dkt. No. 1865, pp. 42-47). At the park, Defendant acted as a
lookout for other 10th Street gang members who were selling drugs there, and the
guns were used for protection. (Dkt. No. 1865, pp. 41-47). Defendant also sold
marijuana himself. (Dkt. No. 1870, pp. 97-98). Defendant eventually sold the
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shotgun to the Zolo Boys, and on the day of the MacDonald and Young murders, he
tried to buy it back. (Dkt. No. 1862, p. 47; Dkt. No. 1865, p. 105). Furthermore, the
evidence at trial also showed that earlier on the day of the murders, Defendant was
present when a fellow 10 th Street gang member, Kiki, was shot by a 7th Street gang
member on the corner of West and Maryland. (Dkt. No. 1865, pp. 77-85). Following
such shooting, Defendant and other 10th Street members jumped, beat, and kicked
Stephanie Maldonado and her boyfriend because her boyfriend was suspected of
being from 7 th Street. (Dkt. No. 1865, pp. 89-93).
II. 	DISCUSSION
The gravamen of Defendant’s position is that the murders of MacDonald and
Young ought not to be included as part of the Defendant’s relevant conduct since the
Second Circuit expressly determined that the evidence was insufficient to convict
Defendant of either the murder enhancements as part of the RICO conspiracy or the
VCAR murder counts involving such individuals.
For the reasons which follow, the Court determines that, although the
evidence—in view of the lack of proof that Defendant’s conduct actually contributed
to the success of the murders of MacDonald and Young committed by other 10th
Street members—was insufficient to convict him as an accomplice to such murders,
the preponderance of the evidence establishes that: (1) such murders fell within the
scope of the RICO conspiracy to which Defendant agreed; (2) were in furtherance of
that conspiracy; and (3) were reasonably foreseeable to Defendant. As a result, this
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Court concludes that such murders are relevant conduct to Defendant’s RICO
conspiracy conviction.
A. Legal Standard
When a defendant undertakes criminal activity jointly with others, in this case,
through a RICO conspiracy, he is held accountable for “all reasonably foreseeable
acts and omissions of others that were: (i) within the scope of the jointly undertaken
activity, (ii) in furtherance of that jointly undertaken criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity.” U.S.S.G. §
1B1.3(a)(1)(B). “Because a count may be worded broadly and include the conduct
of many participants over time, the scope of the ‘jointly undertaken criminal activity’
is not necessarily the same as the scope of the entire conspiracy, and hence
relevant conduct is not necessarily the same for every participant.” U.S.S.G. § 1B1.3
cmt. n. 3(B). This is because “the emphasis in substantive conspiracy liability is the
scope of the entire conspiracy,” while “the emphasis under [the Guidelines] is the
scope of the individual defendant’s undertaking.” United States v. Spotted Elk, 548
F.3d 641, 673-74 (8th Cir. 2008) (emphases in original). Thus, in a given case, “[t]he
scope of conduct for which a defendant can be held accountable under the
sentencing guidelines [may be] significantly narrower than the conduct embraced by
the law of conspiracy.” United States v. Perrone, 936 F.2d 1403, 1416 (2d Cir. 1991);
see United States v. Rigo, 649 F. App'x 107, 108 (2d Cir. 2016); U.S.S.G. § 1B1.3
cmt. n. 1.
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As the commentary to the relevant section of the Guidelines explains, in
determining “the scope of the criminal activity the particular defendant agreed to
jointly undertake,” the Court:
[M]ay consider any explicit or implicit agreement fairly inferred from the
conduct of the defendant and others. Accordingly, the accountability of
the defendant for the acts of others is limited by the scope of his or her
agreement to jointly undertake the particular criminal activity. Acts of
others that were not within the scope of the defendant’s agreement,
even if those acts were known or reasonably foreseeable to the
defendant, are not relevant conduct for sentencing purposes.
U.S.S.G. § 1B1.3 cmt. n. 3(B); see also United States v. Johnson, 378 F.3d 230, 238
(2d Cir. 2004) (mere knowledge of murder committed by coconspirator insufficient
even where it was within scope of overall operation; murder must be within scope of
specific conduct and objectives agreed to by defendant).
B. 	Legal Analysis
Having presided over the trial in this action, the Court determines that the
preponderance of the evidence presented at trial establishes that although
Defendant did not personally participate in the shootings of MacDonald and Young,
such shootings were committed by other 10th Street gang members. The evidence
further establishes that the shootings were motivated by retaliation for acts of
violence committed by rival members of the 7th Street gang upon members of the
10 th Street gang. Finally, the evidence also establishes that the commission of such
shootings fell within the scope of defendant’s agreement with his fellow gang
members. In fact, the proof at trial established that on the very day of such murders,
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Defendant himself personally participated in an assault of two other individuals, a
female, and her boyfriend who Defendant and his fellow 10th Street gang members
believed was a rival member of the 7th Street gang. Such assault was motivated by
retaliation for acts of violence believed to be committed by 7th Street gang members
upon members of the 10th Street gang. In fact, the very same acts of violence that
motivated the murders. That such violence did not involve firearms hardly supports
the position that violence with firearms were beyond the scope of defendant’s
agreement with his fellow 10th Street gang members. To the contrary, the evidence
establishes that Defendant personally acquired and possessed firearms to protect
himself and fellow members of the 10th Street gang. Thus, the Court determined
that the shooting homicides of MacDonald and Young involved an act which was
within the specific conduct (shootings and assault) and objectives (retaliation against
members of a rival gang) that were agreed to by Defendant.
The Second Circuit’s decision in Johnson, a case relied upon by defendant
(Dkt. No. 2321. Pp. 4-5), is factually distinguishable and provides an illustration of
what a murder that is “beyond the scope” of a charged defendant’s agreement looks
like. By juxtaposing the conduct of Defendant here with that of the defendants in
Johnson, the case, in fact, supports this Court’s determination that the murders of
MacDonald and Young were within the scope of Defendant’s agreement.
In Johnson, three defendants were convicted of conspiring to commit
extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. The trio were members of
a labor coalition named Brooklyn Fight Back (“BFB”), that claimed to use “time-
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honored tactics of the labor movement to obtain jobs for members of minority groups
on construction projects. Contrary to BFB's claims of honorable means and ends,
the jury found that, from 1990 to 1998, defendants' participation in BFB included
extorting money and jobs, including the proverbial ‘no-show’ jobs, from contractors
at construction sites in New York City.” United States v. Johnson, 378 F.3d at 234.
The overt acts of each defendant in furtherance of the conspiracy to commit involved
each defendant’s efforts to extort money from different construction companies. Id.
During defendants’ participation in the extortion conspiracy, another BFB
member and co-conspirator, Mulder, killed Erick Riddick, “a member of a rival ‘labor
coalition,’ during a confrontation at a Queens construction site. None of the
defendants was convicted by the jury of any charge relating specifically to the
Riddick murder.” Id. On appeal, the Second Circuit vacated all three defendants'
sentences on the grounds that the District Court, in including Riddick’s murder as
part of each defendant’s relevant conduct, “had not satisfied our Circuit's standard
for holding a defendant liable at the sentencing phase for the relevant conduct of a
co-conspirator.” Id., at 235. As the Court explained,
[I]n order to consider the Riddick murder as relevant conduct, the
District Court was required to make two particularized findings under
the so-called Studley prongs: (1) that the scope of the activity to which
the defendant agreed was sufficiently broad to include the relevant, co-
conspirator conduct in question; and (2) that the relevant conduct on
the part of the co-conspirator was foreseeable to the defendant.
United States v. Johnson, 378 F.3d at 235–36 (alterations and internal quotations
omitted) (citing United States v. Studley, 47 F.3d 569, 574 (2d Cir.1995)); see also
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United States v. Getto, 729 F.3d 221, 234 (2d Cir. 2013) (“Before sentencing a
defendant based on the conduct of coconspirators, ... a district court is required to
make two particularized findings: (1) that the scope of the activity to which the
defendant agreed was sufficiently broad to include the relevant, coconspirator
conduct in question; and (2) that the relevant conduct on the part of the
coconspirator was foreseeable to the defendant.” (alterations and internal quotation
marks omitted)).
While the scope of the activity to which Johnson defendants agreed clearly
did not include acts of violence which potentially could (and did) lead to murder, the
scope of the activity to which the Defendant in this case agreed clearly did. As such
this Court determines that notwithstanding the fact that the Defendant did not
commit any actus reus in furtherance of the murders of MacDonald and Young, their
shooting—in retaliation for acts of violence committed by members of a rival gang
against members of the 10 th Street gang—was within the scope of Defendant’s
agreement with his fellow 10th Street gang members and was clearly undertaken in
furtherance of their jointly undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(B).
Having determined that the murders were both within the scope of
Defendant’s agreement with his fellow 10th Street gang members and undertaken in
furtherance of their jointly undertaken criminal activity, the Court must next consider
whether such murders were reasonably foreseeable in connection with such activity.
U.S.S.G. § 1B1.3(a)(1)(B); see, Studley, 47 F.3d at 573-74 (these determinations
must be made sequentially, as the sentencing court must “‘first determine the scope
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of the criminal activity the particular defendant agreed to jointly undertake’ ... before
the issue of foreseeability, prong two, is reached.”)(quoting U.S.S.G. § 1B1.3 cmt. n.
2)). While a defendant’s awareness of the scope of the overall operation is—by
itself—insufficient to hold him accountable for the activities of the entire operation,
“the ‘relevant inquiry is what role the defendant agreed to play in the operation,
either by an explicit agreement or implicitly by his conduct.’” United States v. Rigo,
No. 13 CR. 897 (RWS), 2017 WL 213064, at *3–4 (S.D.N.Y. Jan. 17, 2017)(quoting
Studley, 47 F.3d at 575 (citing U.S.S.G. § 1B1.3, cmt. n. 2 illus.(c)(7))).
Here, such foreseeability is clear. In fact, as part of its decision, the Second
Circuit expressly recognized, “[a]lthough Anastasio's actions at the apartment where
the murders were planned did not render him an accomplice to the murders, his
conduct there certainly provides a reasonable basis for inferring that Anastasio knew
about, and agreed to, the general criminal objective of the 10th Street Gang.” United
States v. Delgado, 972 F.3d at 80 (quotations omitted). Moreover, the Court of
Appeals explicitly stated that, “a rational jury could conclude beyond a reasonable
doubt that Anastasio wished to bring about the murders of Young and McDonald—
an entirely foreseeable consequence of the retaliatory shooting.” United States v.
Delgado, 972 F.3d at 74 (quotation and alterations omitted). With the Circuit Court
endorsing the fact that a fact-finder could rationally conclude that the trial proof
supported the conclusion that such foreseeability had been established beyond a
reasonable doubt, this Court has little difficulty in determining its existence by a
preponderance.
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For the foregoing reasons, this Court determines that notwithstanding his
acquittal for the shooting deaths of Young and MacDonald, Defendant should be
held liable for such deaths at sentencing. Because a preponderance of the
evidence supports the conclusion that such murders were within the scope and in
furtherance of Defendant’s jointly undertaken activity, and reasonably foreseeable to
him in connection with that criminal activity, United States v. Pica, 692 F.3d 79, 88
(2d Cir. 2012). (“[a] district court may treat acquitted conduct as relevant conduct at
sentencing, provided that it finds by a preponderance of the evidence that the
defendant committed the conduct.”), such murders should properly be included as
part of Defendant’s relevant conduct to his participation in the RICO conspiracy.
III. 	CONCLUSION
For the foregoing reasons, the Court determines that the murders of Brandon
MacDonald and Darinell Young, committed by Defendant’s coconspirators, are
relevant conduct to Defendant’s participation in the RICO conspiracy of which he
has been convicted. The Court directs that an updated Presentence Investigation
be prepared and a sentencing date set.
IT IS SO ORDERED.
s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: February 6, 2024
Buffalo, New York
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