USA v. Sepulveda et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
UNITED STATES OF AMERICA 	)
)
v. 	) 	C.R. No. 95-075-JJM-PAS
)
SHARIFF ROMAN 	)
Defendant 	)
___________________________________ )
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., Chief United States District Judge.
Shariff Roman has petitioned this Court under 28 U.S.C. § 2255 to vacate, set
aside, or correct his judgment of conviction and sentence for using and carrying a
firearm during and in relation to a crime of violence. He claims that the Court should
vacate his conviction based on the Supreme Court’s decisions in
Johnson v. United
States, 576 U.S. 591 (2015) (“
Johnson II”), and
Davis v. United States, __ U.S. __, 139
S. Ct. 2319 (2019). The Court conducted a hearing on the Motion to Vacate (ECF No.
1232). 	The Court finds that Mr. Roman has failed to demonstrate entitlement to
relief and DENIES his petition.
FACTS1
1 	The Facts section is taken largely from the First Circuit’s opinion denying
Mr. Roman’s direct appeal,
see United States v. Lara, et al., 181 F.3d 183 (1st Cir.
1999), and this Court’s docket.
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A federal Grand Jury sitting in the District of Rhode Island indicted Mr.
Roman and others for multiple crimes arising out of their involvement in the
Providence, R.I., chapter of the Almighty Latin King Nation. 	In particular, Mr.
Roman was charged with racketeering, in violation of the Racketeer Influenced
Corrupt Organization (“RICO”) Act, 18 U.S.C. § 1962(c) (Count One), which included
four predicate acts (Racketeering Acts Two–Five); conspiracy to commit racketeering,
in violation of 18 U.S.C. § 1962(d) (Count Two); four counts of violent crimes in aid of
racketeering (“VICAR”) (Counts Four–Seven); transfer of firearms, knowing those
firearms would be used to commit a crime of violence, in violation of 18 U.S.C. § 924(h)
(Count Eleven); and using and carrying firearms during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count Twelve). 	Racketeering Act Two
charged Mr. Roman with conspiracy to murder Jose Mendez, in violation of §§ 11-1-6
and 11-23-1 of the Rhode Island General Laws, and the murder of Jose Mendez, in
violation of R.I. Gen. Laws §§ 11-23-1 and 11-1-3. 	Count Four also charged Mr.
Roman with VICAR murder of Jose Mendez, in violation of 18 U.S.C. § 1959(a) (1)
and 18 U.S.C. § 2. 	The crimes of violence referenced in Counts Eleven and Twelve
related to the murder of Mr. Mendez, as charged in Racketeering Act Two. At issue
here is the § 924(c) charge in Count XII.
The First Circuit described the events leading to the murder of Mr. Mendez,
and the ultimate killing, as follows:
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On Saturday, November 5, 1994, several members of the Providence
Latin Kings attended a party in Connecticut. 	On that occasion, they
learned that their Connecticut counterparts were at war with a rival
gang, the Netas. Two Connecticut Latin Kings returned to Rhode Island
with the Providence contingent. One of them, Peter Natal, later became
a confidential informant.
At a meeting of the Providence chapter held on Monday, November 7,
[George] Sepulveda told his cohorts about the war in Connecticut.
Immediately after this announcement, the officers of the Providence
chapter (including, at least, Sepulveda, [Terrence] Boyd, and Roman)
went into executive session and discussed a plan to kill the leader of the
Netas in Providence. 	This strategy was hatched on the theory that, in
Sepulveda’s words, “without the head, the body falls.” 	The executive
session ended on this note, the main meeting resumed, and Sepulveda
asked the general membership to forget what he had said about a war.
Natal attended the executive session. 	He testified that, during this
discussion, the Latin Kings hierarchs noted the near-dearth of local
Netas; Providence was virgin territory and there were only four full
members of the Neta gang at that point. 	[Alex] Mesa confirmed this
assessment. He testified that “there was [sic] very few Netas out here.
There’s probably like four Netas. Each one had a position [i.e., held an
office in the gang.]” 	Initially, there was confusion over whether Jose
Mendez might be the president of the Providence Netas, but a consensus
gradually developed in favor of the view that Winston Navarette held
that office.
After 	the 	meeting 	adjourned, 	several 	participants 	repaired 	to 	the
dwelling that Roman shared with his then-paramour, Tia Barboza. 	A
small group, including Boyd and Roman, met in Tia’s bedroom and
finalized the plan to kill the head of the Netas. 	Four members were
assigned responsibility for carrying out the assassination: [George]
Perry, [Rodney] Santi, Hakim Davis, and Juan Garcia. Witnesses stated
that Boyd and Roman each chose at least one member of the “hit squad.”
The next day, Roman distributed weapons from the gang’s cache to the
appointees.
In retrospect, it appears that, at the crucial time, the Providence Netas
had four officers: Winston Navarette (president), Jose Mendez (vice-
president), 	Edgar 	Pichardo 	(disciplinarian), 	and 	Maquiva 	Mendez
(secretary). 	The Netas lived together. 	When the hit squad arrived at
their abode, they asked for Navarette and were informed that he was
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out of town. 	The trial testimony was unequivocal that when the Neta
president was away, the vice-president assumed his responsibilities.
Thus, Jose Mendez, nominally the Neta vice-president, was the head of
the Netas in Navarette’s absence.
Upon learning of Navarette’s unavailability, the crew invited Jose
Mendez, who was wearing his Neta colors at the time, to smoke some
marijuana. 	The group, now five in number, walked to a nearby field
where Perry shot Mendez from behind, killing him. 	The four Latin
Kings fled.
Lara, 181 F.3d at 202-03 (fourth and fifth alterations in original).
After a forty-four-day trial, a jury found Mr. Roman guilty of all counts with
which the Government had charged him. 	The Court sentenced him to concurrent
terms of life imprisonment as to Counts One, Two, and Four; ten-year terms of
imprisonment as to Counts Five, Six, Seven, and Eleven, all to run concurrently with
each other and with the life terms imposed for Counts One, Two, and Four; and a
consecutive term of life imprisonment as to Count Twelve. 	The Court also imposed
five years of supervised release. 	ECF No. 847 (Judgment). Mr. Roman appealed, but
the First Circuit affirmed the judgments of conviction. 	The Supreme Court denied
certiorari.
Roman v. United States, 528 U.S. 1127 (2000).
Mr. Roman next moved to vacate sentence pursuant to 28 U.S.C. § 2255,
alleging 	constitutional 	violations 	related 	to 	the 	empanelment 	of 	the 	jury 	and
ineffective assistance of counsel. 	Finding no merit to Mr. Roman’s claims of error,
the Court denied the Motion to Vacate. ECF No. 13 in CA 01-080-ML (Memorandum
and Order of November 19, 2001).
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After the Supreme Court decided
Johnson II, 576 U.S. at 597 (finding residual
clause of Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), unconstitutionally
vague), Mr. Mr. Roman filed a
pro se second Motion to Vacate under § 2255. He also
sought leave from the First Circuit to file a second or successive motion. Before the
circuit court ruled on Mr. Roman’s request, the Office of the Federal Public Defender
(“FPD”) filed a “placeholder” Motion to Vacate, based on
Johnson II, on Mr. Roman’s
behalf. The First Circuit eventually granted leave and directed that the Court docket
Mr. Roman’s motion as of the date he applied for leave in the circuit court. 	In light
of that ruling, the Court denied the “placeholder” motion.
At the Court’s direction, Mr. Roman, now represented by the FPD, filed a
memorandum in support of the Motion to Vacate. 	The Government later filed a
response in opposition to the Motion to Vacate, to which Mr. Roman replied. 	After
receiving permission to do so, the Government filed a sur-reply. 	The Court held a
hearing on the Motion to Vacate on September 30, 2021.
STANDARD OF REVIEW
Section 2255 provides for post-conviction relief if the court sentenced a
petitioner in violation of the Constitution or lacked jurisdiction to impose the
sentence, if the sentence exceeded the statutory maximum, or if the sentence is
otherwise subject to collateral attack.
United States v. Addonizio, 422 U.S. 178, 185
(1979);
David v. United States, 134 F.3d 470, 474 (1st Cir. 1998). 	In trying to
collaterally 	attack 	his 	sentence, 	the 	petitioner 	bears 	the 	burden 	of 	proving
“exceptional circumstances” that warrant redress under § 2255.
	See Hill v. United
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States, 368 U.S. 424, 428 (1962);
Mack v. United States, 635 F.2d 20, 26-27 (1st Cir.
1980). 	For example, an error of law must constitute a “fundamental defect which
inherently results in a complete miscarriage of justice.”
Hill, 368 U.S. at 428;
accord
David, 134 F.3d at 474.
ANALYSIS
As noted above, Mr. Roman filed the Motion to Vacate (ECF No. 1232) after
obtaining leave from the First Circuit to do so. 	He then filed a memorandum in
support of the Motion to Vacate (ECF No. 1274). 	The Government then filed a
response in opposition (ECF No. 1285), and Mr. Roman replied (ECF No. 1291). The
Government filed a sur-reply (ECF No. 1293), and both parties have since submitted
additional filings (ECF Nos. 1309, 1310, 1311). 	The Court conducted a hearing on
the Motion to Vacate.
Mr. Roman argues that his § 924(c) conviction (Count XII) must be vacated
because it is unclear whether the jury unanimously convicted him based on a valid
predicate crime. 	ECF No. 1274 at 4, 12. 	Specifically, Mr. Roman argues that the
conviction on Count XII was based on two crimes, conspiracy to murder Jose Mendez
and the murder of Jose Mendez.
	Id. at 3;
see also id. Ex. A (Redacted Superseding
Indictment, ECF No. 1274-1) ¶¶ 29, 52. However, jurors were not required to decide
(or 	specify) 	unanimously 	on 	which 	predicate 	they 	based 	Mr. 	Roman’s 	924(c)
conviction, and one of them, conspiracy, is not a crime of violence. ECF No. 1274 at
4. Mr. Roman further argues that, even if it were clear that the 924(c) conviction was
based on murder, murder under Rhode Island law encompasses theories of aiding and
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abetting as well as coconspirator liability, neither of which satisfies the force clause
of § 924(c).
	Id. at 4, 13-15. 	Thus, neither conspiracy nor murder as charged here
qualifies as a predicate crime of violence for the 924(c) conviction, and the conviction
cannot stand.
Id. at 4, 12-14, 15-16.
The Government first counters that Mr. Roman has procedurally defaulted his
claim by failing to raise the argument that § 924(c) is unconstitutionally vague either
at trial or on direct review. ECF No. 1285 at 1, 6-8. Substantively, the Government
argues that, even though one of the two predicates supporting Mr. Roman’s § 924(c)
conviction is no longer valid, the other, VICAR murder, remains a crime of violence
after
Davis.
	Id. at 1. Further, the Government contends, the record shows that the
jury relied on the VICAR murder of Jose Mendez to support the guilty verdict on the
§ 924(c) count and thus any error in the jury instructions on Count XII is harmless.
Id. at 1, 19-23.
Procedural Default
“Where a defendant has procedurally defaulted a claim by failing to raise it on
direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’”
Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted);
see
also Lassend v. United States, 898 F.3d 115, 122 (1st Cir. 2018) (“[C]laims not raised
on direct appeal may not be raised on collateral review unless the petitioner shows
cause and prejudice.”) (alteration in original) (internal quotation marks omitted).
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“Cause” consists of “some objective factor external to the defense [. ]”
Murray v. Carrier,
477 U.S. 478, 488 (1986).
A petitioner may show cause by showing that the claim was “‘so novel that its
legal basis [wa]s not reasonably available to counsel’ at the time of the default.”
Lassend, 898 F.3d at 122 (alteration in original) (quoting
Reed v. Ross, 468 U.S. 1, 16
(1984)). In
Reed, the Supreme Court stated that, where the Supreme Court explicitly
overrules one of its own precedents, “the failure of a defendant’s attorney to have
pressed such a claim . . . is sufficiently excusable to satisfy the cause requirement.”
468 U.S. at 17;
see also Lassend, 898 F.3d at 123 (quoting
Reed, 468 U.S. at 17). In
Johnson II, the original basis for Mr. Roman’s motion, the Supreme Court expressly
overruled two of its own earlier rulings that had rejected challenges to the ACCA’s
residual clause on grounds of constitutional vagueness.
	Lassend, 898 F.3d at 122
(citing
Sykes v. United States, 564 U.S. 1 (2011), and
James v. United States, 550
U.S. 192 (2007)). Thus, as was the case in
Lassend, the Court finds that Mr. Roman
has shown cause for his procedural default.
	See id. at 123;
see also United States v.
Garcia-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018) (citing
Lassend, 898 F.3d at 122);
United States v. Varona, No. 1:95-cr-1027, 2021 WL 2873793, at *3 (S.D.N.Y. July 8,
2021) (assuming that, without evidence that
Johnson II,
Davis, and
Sessions v.
DiMaya, 138 S. Ct. 1204 (2018), “were even a tiny blip on anybody’s radar screen in
1997 or 1998” petitioner’s “claim here is so novel that it was not reasonably available
to counsel at the time”) (internal quotation marks and citation omitted).
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Mr. Roman must also show “actual prejudice” resulting from the errors on
which his claim is based.
	Lassend, 898 F.3d at 123 (citing
United States v. Frady,
456 U.S. 152, 168 (1982));
see also Carrier, 477 U.S. at 494 (noting that to show
prejudice, the “habeas petitioner must show ‘not merely that the errors at … trial
created a
possibility of prejudice, but that they worked to his
actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.’”
(quoting
Frady, 456 U.S. at 170)) (alteration in original);
Derman v. United States,
298 F.3d 34, 45 (1st Cir. 2002) (“The showing of prejudice needed to cure a procedural
default generally requires a habeas petitioner to demonstrate that there is a
reasonable probability that the result of the trial would have been different absent
the error.”) (internal quotation marks omitted). 	Thus, if Mr. Roman can prove that
his conviction and enhanced sentence under § 924(c) were based on invalid predicates,
he can argue actual prejudice, but if his challenge fails on the merits, “there cannot
be actual prejudice because there would be no error from which such prejudice would
flow.”
Lassend, 898 F.3d at 123.
Here, as in
Lassend, the prejudice inquiry “dovetails with the merits inquiry .
. . .”
Id.;
see also United States v. Goodridge, 392 F. Supp. 3d 159, 168 (D. Mass. 2019)
(same). Thus, the Court turns to the merits of Mr. Roman’s claim.
See Lassend, 898
F.3d at 123;
see also Varona, 2021 WL 2873793, at *3 (finding that petitioner had
shown cause but could not show prejudice because motion failed on merits).
Merits
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To recap, Mr. Roman was found guilty of many counts of a multi-count, multi-
defendant Redacted Superseding Indictment. 	Relevant to Mr. Roman’s argument
are: Count I, Racketeering Act Two, conspiracy to murder Jose Mendez and the
murder of Jose Mendez; Count Four, VICAR murder of Jose Mendez; and Count XII,
using or carrying a firearm during and in relation to a crime of violence, specifically
the murder of Jose Mendez as charged in Racketeering Act Two, in violation of 18
U.S.C. § 924(c). ECF No. 1274-1 ¶¶ 12-13, 17, 21.
At the time of Mr. Roman’s conviction, a crime of violence was defined as:
an offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that 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.
18 U.S.C. § 924(c)(3).2 	The former clause is commonly known as the “elements” or
“force” clause and the latter as the “residual clause.”
Davis, 139 S. Ct. at 2324;
Shea
v. United States, 976 F.3d 63, 67 (1st Cir. 2020). Following its reasoning in
Johnson
II and
Dimaya, the Supreme Court held in
Davis that the residual clause in § 924(c)
was unconstitutionally vague. 139 S. Ct. at 2325-28, 2336. Thus, for Mr. Roman’s §
924(c) conviction to be valid, it must be based on a felony that satisfies the force
2 “Physical force” means violent force.
Johnson v. United States, 559 U.S. 133,
140 (2010) (“
Johnson I”) (“We think it clear that in the context of a statutory definition
of ‘
violent felony,’ the phrase ‘physical force’ means
violent force—that is, force
capable of causing physical pain or injury to another person.”).
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clause’s definition of a crime of violence.
See United States v. Tsarnaev, 968 F.3d 24,
99 (1st Cir. 2020) (“With
Davis on the books, that leaves only one potential path for
treating the predicates as crime-of-violence offenses: the elements clause . . . .”);
id.
at 104 (noting that, after
Davis, most conspiracies are not crimes of violence).
As noted, relief under § 2255 is available only in “exceptional circumstances,”
Hill, 368 U.S. at 428, and Mr. Roman bears the burden of establishing by a
preponderance of the evidence that he is entitled to such relief,
Dimott v. United
States, 881 F.3d 232, 240 (1st Cir. 2018) (“This circuit has long held that federal post-
conviction petitioners bear the burden of proof and production under § 2255, and must
establish[ ] by a preponderance of the evidence that they are entitled to relief.”)
(alteration in original) (internal quotation marks omitted). In this context, “[t]o prove
a
Johnson II claim, the movant must show that—more likely than not—it was the
use of the residual clause that led to the sentencing court’s enhancement of his
sentence. 	A mere possibility is not enough.”
	Id. (internal citation and quotation
marks omitted);
see also Shea, 976 F.3d at 82 (stating, in context of
Johnson II-type
challenge under United States Sentencing Guidelines (“USSG”), that “to win on the
merits of his
Johnson-based challenge to his sentence, Shea will need to prove by a
preponderance of the evidence that his sentence rested on the residual clause of the
Career Offender Guideline.”) (internal quotation marks omitted).
Mr. Roman argues that, because the jury form did not require unanimity as to
which predicate formed the basis for his § 924(c) conviction, it is impossible to tell
which did. ECF No. 1274 at 4. In other words, his § 924(c) conviction may have been
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based on an invalid predicate.
See id. at 4, 15-16; ECF No. 1291 at 7-8. Mr. Roman’s
focus is on the Redacted Superseding Indictment, which charges in Count XII:
On or about November 8, 1994, in the District of Rhode Island, the
defendants, ROMAN and PERRY did knowingly use and carry firearms
. . . during and in relation to a crime of violence, for which they may be
prosecuted in a court of the United States, that is, the murder of Jose
Mendez, as charged in Racketeering Act Two of this Indictment, in
violation of 18 U.S.C. § 924(c).
ECF No. 1274-1 ¶ 52;
see also ECF No. 1291 at 6. 	Count I, Racketeering Act Two
alleges:
The defendants named below committed the following acts,
any one of
which alone constitutes the commission of Racketeering Act Two:
a. 	Conspiracy to Murder Jose Mendez
In or about October and November 1994, in the District of Rhode Island
and elsewhere, the defendants SEPULVEDA, BOYD, ROMAN, PERRY
and others known and unknown to the Grand Jury, did knowingly and
intentionally 	agree, 	combine, 	confederate, 	contrive 	and 	conspire
together to do an unlawful act, to wit: to murder Jose Mendez, in
violation of §§ 11-1-6 and 11-23-1 of the General Laws of Rhode Island,
1956, as amended (reenactment of 1981).
b. 	Murder of Jose Mendez
On or about November 8, 1994, in the District of Rhode Island, the
defendants, SEPULVEDA, BOYD, ROMAN, PERRY and others known
and unknown to the Grand Jury, did murder Jose Mendez, in violation
of §§ 11-23-1 and 11-1-3 of the General Laws of Rhode Island, 1956, as
amended (reenactment of 1981).
ECF No. 1274-1 ¶ 29 (emphasis added). The verdict form simply required the jury to
indicate whether Mr. Mendez was guilty of Racketeering Act Two, not to specify the
basis for its verdict. ECF No. 1274 at 4;
see also id., Ex. G (Jury Form, ECF No. 1274-
7) at 3. So, Mr. Roman contends that his § 924(c) conviction may have been based on
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the conspiracy to murder Mr. Mendez, which both parties agree is no longer a valid
predicate after
Davis. ECF No. 1274 at 9-10; ECF No. 1285 at 12-13; ECF No. 1291
at 5.
The Government, on the other hand, argues that the jury’s Count XII verdict
was based on the murder of Jose Mendez, as charged in Racketeering Act Two and in
Count IV, VICAR murder.3 ECF No. 1285 at 1, 13. The Government focuses on the
jury instructions for Count XII, which cross-reference other instructions:
In considering this charge, you are to apply the same instructions I gave
you for Count Ten, as well as the instructions I gave you with respect to
the murder of Jose Mendez, in connection with Act of Racketeering Two
in Count One and Count Four.
ECF No. 1274, Ex. B (Jury Instructions, ECF No. 1274-2) at 3;4
see also ECF No.
1293 at 2. 	The instructions for Count X, a § 924(c) charge against different
defendants relating to a different murder, state:
In order to sustain its burden of proof for the crime of using or carrying
a firearm during and in relation to a crime of violence, the government
must prove the following two elements beyond a reasonable doubt:
3 Count IV, VICAR murder, alleges that:
On or about November 8, 1994, in the District of Rhode Island, for the
purpose of gaining entrance to and maintaining and increasing their
position in the Latin Kings, an enterprise engaged in racketeering
activity . . . , the defendants, SEPULVEDA, BOYD, ROMAN, PERRY
and others known and unknown to the Grand Jury, did murder Jose
Mendez, in violation of §§ 11-23-1 and 11-1-3 of the General Laws of
Rhode Island, 1956, as amended (reenactment of 1981).
ECF No. 1274-1 ¶ 41.
4 	Page citations, where different, refer to the pagination generated by the
Court’s electronic filing system.
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(1) that the defendant committed the crime of murder as charged
in the indictment; and
(2) that during and in relation to the commission of that crime,
the defendant knowingly used or carried a firearm.
In determining whether the defendant used or carried a firearm, you
may consider all of the factors received in evidence in the case, including
the nature of the underlying crime of violence alleged, the usefulness of
the firearm to the crime alleged, and the circumstances surrounding the
presence of the firearm.
The government need only prove that the defendant used the firearm or
that he carried the firearm. It need not prove both. The mere possession
of a firearm is not sufficient to convict under this statute, however.
Rather, the government must show the active employment of the
firearm. Examples of “active employment” include, but are not limited
to, 	brandishing, 	displaying, 	firing, 	attempting 	to 	fire, 	or 	making
references to a firearm that are calculated to bring about a change in
circumstances.
The term “crime of violence” means an offense that is a felony and has
as one of its essential elements the use, attempted use, or threatened
use of physical force against the person or property of another, or an
offense by its very nature involves a substantial risk that such physical
force may be used in committing the offense. [5]
I instruct you that as a matter of law the offense alleged in Act of
Racketeering One, the murder of Temujin Vandergroen, is a crime of
violence, and further is a crime which “may be prosecuted in a court of
the United States.”
5 To be clear, when the Court instructed the jury in 1997, its instructions were
valid.
Davis, decided more than twenty years later, eliminated the residual clause as
part of the definition of crime of violence. 139 S. Ct. at 2336;
see also, e.g., Speed v.
United States, No. 10 cv 3333, 2020 WL 6290385, at *4 (S.D.N.Y. Oct. 27, 2020) (“At
trial, the Court gave what was then a proper instruction on the law: that both Count
One (the substantive RICO charge) and Count Two (RICO conspiracy) were crimes of
violence and therefore possible predicates for finding Speed guilty on Count Three
[the 924(c) charge].”).
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You are to apply the same instructions that I have already given you as
to 	the 	murder 	of 	Temujin 	Vandergroen 	in 	Count 	One, 	Act 	of
Racketeering One, in deliberating on this charge.
. . .
ECF No. 1274, Ex. C (Jury Instructions, ECF No. 1274-3) at 3-4.
The Court instructed the jury on conspiracy to murder and murder in
Racketeering Act One, the murder of Temujin Vandergroen. 	ECF No. 1274, Ex. F
(Jury Instructions, ECF No. 1274-6) at 3-8. These instructions were incorporated by
reference in the instructions for Racketeering Act Two. 	ECF No. 1274, Ex. E (Jury
Instructions, ECF No. 1274-5) at 3, 4.
Count I, Racketeering Act One, like Racketeering Act Two, included both a
conspiracy and a murder charge.6 ECF No. 1274-1 ¶ 28. The Court first instructed
the jury on conspiracy:
Section 11-1-6 of the General Laws of Rhode Island makes it unlawful
for any person to conspire with another to commit an offense punishable
under the laws of the State of Rhode Island.
The crime of conspiracy is the combination of two or more persons to
commit an unlawful act. 	No action in furtherance of the conspiracy
beyond the making of the unlawful agreement need occur for the crime
of 	conspiracy 	to 	be 	committed. 	Indeed 	once 	a 	common 	unlawful
agreement has been made, the crime of conspiracy is complete. You may
infer the existence of a conspiracy from proof of relationship, conduct,
circumstances and actions of the parties. 	However, the fact that a
defendant knew or should have known that others were conspiring to
commit an offense is insufficient to establish liability on the part of that
defendant for the conspiracy.
6 Count I, Racketeering Act One also included an arson charge. ECF No. 1274-
1 ¶ 28.
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ECF No. 1274-6 at 3;
see also R.I. Gen. Laws § 11-1-6. The Court then turned to the
murder of Temujin Vandergroen (with which Mr. Roman was not charged):
Section 11-23-1 of the General Laws of Rhode Island defines murder as
the “unlawful killing of a human being with malice aforethought.” 	In
order to find that defendant Perry and/or defendant Lara committed this
act, the government must prove beyond a reasonable doubt that the
defendant unlawfully killed a human being; and that he did so with
malice aforethought.
The term “unlawful” refers to whether or not the killing was justified,
that is, whether or not it was committed in self-defense. 	The terms
“killing” and “human being” are self-explanatory and are to be given
their common everyday meaning. 	“Malice” exists where a defendant
either intended to kill or to inflict great bodily harm, or engaged in
conduct which evidences an extreme indifference to the sanctity of
human life. 	Malice can be inferred from the attending circumstances
surrounding 	a 	defendant’s 	conduct. 	It 	can 	also be 	inferred 	from
circumstances where there is a disparity in size and strength between
the victim and an assailant.
Having defined the crime of murder for you, I must now define three
additional doctrines that are directly related to this count. [7]
. . .
The second doctrine is that of “aiding and abetting.” 	Section 11-1-3 of
the General Laws of Rhode Island provides that, “every person who shall
aid, assist, abet, counsel, hire, command, or procure another to commit
any crime or offense, shall be proceeded against as a principal. . . .” This
means that a person who aids or assists another to commit an offense is
just as guilty as the person who actually commits the offense.
While the mere presence at the scene of a crime is not sufficient for you
to find someone guilty of that crime, it is a factor that must form part of
your determination of the guilt of the defendant. Beyond mere presence
or mere knowledge that a crime is being committed, the circumstances
must establish that a defendant shared in the criminal intent of the
principal and that there must be a community of unlawful purpose at
7 	The first doctrine explained was “felony murder,” ECF No. 1274-6 at 5-6,
which is irrelevant to the charges against Mr. Roman.
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the time the act is committed. As the term “aiding and abetting” implies,
it assumes some participation in the criminal act in furtherance of the
common 	design, 	either 	before 	or 	at 	the 	time 	the 	criminal 	act 	is
committed. 	It implies some conduct of an affirmative nature. 	Mere
negative acquiescence is not sufficient.
Factors which you may consider include the relationship or association
between the perpetrator and those accused of aiding and abetting, the
knowledge that a crime was about to be committed, and flight from the
scene.
The third doctrine is that of coconspirator liability. A coconspirator may
be guilty of an offense even though he did not directly participate in the
acts constituting that offense. 	A coconspirator is responsible not only
for his own acts, but also for the substantive acts of his coconspirators
that are done in furtherance of the conspiracy, and are a reasonably
foreseeable result of that conspiracy. 	Indeed, a coconspirator who
commits an offense pursuant to a conspiracy is held to be the agent of
the other coconspirators. 	As to those acts of his coconspirators, a
defendant need not enter into a new agreement on those acts in order to
be responsible and liable for them.
ECF No. 1274-6 at 4-8.8
Turning to Racketeering Act Two, the Court stated:
The indictment alleges that defendants George Sepulveda, Terrence
Boyd, Shariff Roman and George Perry committed two offenses, either
of which could constitute an act of racketeering. Those two crimes are:
(1) Conspiracy to murder Jose Mendez;
and
(2) the murder of Jose Mendez.
You must consider the evidence and reach your decision regarding each
defendant separately, even though the crimes charged are the same for
defendants Sepulveda, Boyd, Roman, and Perry. Indeed, in order to find
that any of these particular defendants are guilty of committing Act of
Racketeering Two, you must conclude that the government has proven
8
See Pinkerton v. United States, 328 U.S. 640 (1946), regarding coconspirator
liability.
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beyond a reasonable doubt that that particular defendant committed
either of the two crimes charged.
. . .
As I have already noted, Section 11-1-6 of the General Laws of Rhode
Island makes it unlawful for any person to “conspire with another to
commit an offense punishable under the laws of Rhode Island,” and
Section 11-23-1 defines the crime of murder as the “unlawful killing of a
human being with malice aforethought.” You are to apply my previous
instructions as to both of these issues in deciding whether defendant
Sepulveda, Boyd, Roman, and/or defendant Perry, conspired to murder
Jose Mendez.
The second crime charged is that of murder. . . .
Again I have already instructed you on the law of murder in Rhode
Island. 	You should apply those same instructions here as to whether
the defendants murdered Jose Mendez, subject to two considerations.
First, the government does not allege that Jose Mendez was killed
during the perpetration of a robbery. Thus, my previous instructions as
to felony murder are not applicable.
Second, my previous instructions as to the law of aiding and abetting,
and as to the law of coconspirator liability, are applicable. In this vein,
I would remind you that a person who counsels, hires, commands, or
procures another to commit a murder is just as responsible for that
murder as the actual killer. 	Further, one who conspires with another
person is guilty of any crimes carried out in furtherance of that
conspiracy, as long as those crimes are a reasonably foreseeable result
of the conspiracy.
Thus, if you conclude that any of the defendants charged either aided or
abetted another defendant, or conspired to kill Jose Mendez, you may
find him guilty of the murder of Jose Mendez even though he did not
physically participate in the murder, or was not present at the murder
scene.
ECF No. 1274-5 at 2-5.
As to Count Four, VICAR murder of Jose Mendez, the Court stated:
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Count IV charges that on or about November 8, 1994, in the District of
Rhode Island, defendants Sepulveda, Boyd, Roman, and Perry, did
murder Jose Mendez, in violation of sections 11-23-1 and 11-1-3 of the
General Laws of Rhode Island, for the purposes of gaining entrance to
and maintaining and increasing their positions in the Latin Kings, an
enterprise engaged in racketeering activity, in violation of title 18,
sections 1959(a) and section 2 of the United States Code.
ECF No. 1274, Ex. D (Jury Instructions, ECF No. 1274-4) at 2-3. 	The Court
continued:
In order to prove that any of the defendants named in Counts Three
through Seven violated section 1959(a), the government must establish
each of the following three elements beyond a reasonable doubt as to
each offense charged: That is,
(1) that there existed, as charged in the indictment, an enterprise
engaged in racketeering activity;
(2) that on or about the dates charged, the defendant committed
the crime alleged; and
(3) that the defendant committed the crime for the purpose of
gaining entrance to, increasing or maintaining his position in
the enterprise.
. . .
The 	second 	element 	that 	the 	government 	must 	prove 	beyond 	a
reasonable doubt is that on or about the dates charged in those counts,
the defendant committed the crime alleged, that is, murder, conspiracy
to murder, or aiding and abetting murder. Again, I have already defined
these terms in connection with Counts One and Two, and you are to
apply those instructions in deliberating as to this element.
. . .
ECF No. 1285, Ex. 3 (Jury Instructions, ECF No. 1285-3) at 9-10.9
9 The omitted instructions were for the RICO count, Count I.
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Against this backdrop, the Court considers whether Mr. Roman has met his
burden 	of 	proving 	that 	his 	conviction 	was, 	more 	likely 	than 	not, 	based 	on
Racketeering Act Two (a), the conspiracy charge, which post-
Davis is no longer a valid
predicate crime of violence,
see Dimott, 881 F.3d at 240;
see also United States v.
Oladimu, No. 1:01-cr-10198, 2020 WL 2104784, at *5 (D. Mass. May 1, 2020) (noting
petitioner’s burden to “show that the residual clause more likely than not provided
the basis for the ACCA[10] enhancement”), and not Racketeering Act Two (b), the
murder charge, which remains a valid predicate act under the force clause,
see United
States v. Baez-Martinez, 950 F.3d 119, 127 (1st Cir. 2020) (holding that second-degree
murder under Puerto Rico law qualified as a violent felony under the ACCA);
accord
Umana v. United States, 229 F. Supp. 3d 388, 392 (W.D.N.C. 2017) (concluding that
VICAR murder was crime of violence under § 924(c)’s force clause).11 	Based on the
following analysis, the Court concludes that he has not.
10 Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).
11 In
Baez-Martinez, the First Circuit addressed whether Puerto Rico’s second-
degree murder offense qualified as a crime of violence under the force clause. 	950
F.3d at 127. 	The court held that it did.
	See id. (holding that Puerto Rico second-
degree murder qualified as a violent felony under the ACCA even though the statute
only required a mens rea of “malice-aforethought” recklessness). 	The Court of
Appeals stated:
Murder in Puerto Rico, like most states, is defined as the “killing of a
human being with malice aforethought.” Second-degree murder is any
murder that is not first-degree murder, where first-degree murder
includes any “willful, deliberate, and premediated killing,” plus a few
other methods. The Supreme Court of Puerto Rico has stated that “[t]he
concept of malice aforethought implies the absence of just cause or
excuse in causing death and implies, also, the existence of the intent to
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kill a fellow human being. 	For second-degree murder, though, “malice
aforethought is enough, without the specific intent to kill.” 	Malice
aforethought “denotes a state or condition in the actor formed by an
inherent deficiency in his or her sense of morality and righteousness as
a result of having stopped caring about the respect and safety of human
life.” 	In other words, Puerto Rico recognizes “depraved heart” murder
and, like many states, classifies this as second-degree murder in most
cases.
Id. at 128 (alteration in original) (internal citations omitted).
Similarly, under Rhode Island law, “[t]he unlawful killing of a human being
with malice aforethought is murder.” R.I. Gen. Laws § 11-23-1. The statute goes on
to list a number of ways by which first-degree may be committed.
See id. “Any other
murder is murder in the second degree.”
Id.;
see also State v. Gillespie, 960 A.2d 969,
975-77 (R.I. 2008) (discussing first- and second-degree murder under Rhode Island
law).
In evaluating whether a crime constitutes a “crime of violence” under § 924(c)’s
force clause, the Court uses the “categorical approach,” which requires the Court “to
look to the elements and the nature of the offense of conviction, rather than to the
particular facts relating to petitioner’s crime.”
	Davis, 139 S. Ct. at 2328 (quoting
Leocal v. Ashcroft, 543 U.S. 1, 7 (2004));
see also Boulanger, 978 F.3d at 28-29
(quoting
Baez-Martinez, 950 F.3d at 124). 	“[T]he least culpable conduct for which
there is a realistic probability of a conviction under the statute,”
Boulanger, 978 F.3d
at 28-29 (quoting
Baez-Martinez, 950 F.3d at 124), must satisfy § 924(c)’s force clause,
id. at 29, that is, it must “ha[ve] as an element the use, attempted use, or threatened
use of physical force against the person of another,”
Baez-Martinez, 950 F.3d at 124
(alteration in original). 	Under § 11-23-1, the Rhode Island murder statute, that
conduct is second-degree murder. 	As noted,
Johnson I defined “physical force” as
“
violent force—that is, force capable of causing physical pain or injury to another
person.” 	559 U.S. at 140. 	“And since murder always results in death (and death is
the ultimate injury), the violent-force requirement is satisfied.”
	Baez-Martinez, 950
F.3d at 132;
see also Tsarnaev, 968 F.3d at 104 (citing
Baez-Martinez, 950 F.3d at
132).
Accordingly, utilizing the categorical approach and following
Baez-Martinez,
the Court concludes that second-degree murder under § 11-23-1 is a crime of violence
under § 924(c).
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The Court begins with the Redacted Superseding Indictment: what it says
and—significantly—what it does not say. As stated above, the Redacted Superseding
Indictment for Count XII alleges:
On or about November 8, 1994, in the District of Rhode Island, the
Defendants, ROMAN and PERRY did knowingly use and carry firearms
. . . during and in relation to a crime of violence, for which they may be
prosecuted in a court of the United States, that is the
murder of Jose
Mendez, as charged in Racketeering Act Two of this Indictment, in
violation of 18 U.S.C. 924(c).
ECF No. 1274-1 ¶ 52 (emphasis added). 	Count XII does not say, “during and in
relation to a crime of violence, for which they may be prosecuted in a court of the
United States, as charged in Racketeering Act Two of this Indictment . . . .” 	It
specifically includes the word “murder,” while Racketeering Act Two contains both
(a) conspiracy to murder Jose Mendez and (b) the murder of Jose Mendez, “any one
of which alone constitutes the commission of Racketeering Act Two [. ]”
	Id. ¶ 29. The
omission of the conspiracy portion of Racketeering Act Two in Count XII implies that
the Grand Jury focused on the murder of Mr. Mendez as the predicate act for Count
XII.12
12 The same is true for Count X. The crime of violence on which Count X was
predicated is stated in the Redacted Superseding Indictment as “the murder of
Temujin Vandergroen, as charged in Racketeering Act One of this Indictment . . . .”
ECF No. 1274-1 ¶ 50. 	Racketeering Act One encompasses conspiracy, murder, and
arson charges,
see id. ¶ 28, “any one of which alone constitutes the commission of
Racketeering Act One,”
id. Count X, however, refers only to “the murder of Temujin
Vandergroen . . . .”
Id. ¶ 50.
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The jury instructions make the point more explicitly. As explained above, the
jury instructions for Count XII incorporated the instructions for Count X (a different
§ 	924(c) 	count), 	which, 	in 	turn, 	incorporated 	the 	instructions 	for 	Count 	I,
Racketeering Act One (a different murder).13
See ECF No. 1274-2 at 3; ECF No. 1274-
3 at 4. 	The jury instructions for Count X also focused on the murder portion of
Racketeering Act One which, like Racketeering Act Two, included a conspiracy charge
(as well as an arson charge).
See ECF No. 1274-3 at 2 (describing predicate crime of
violence as “the murder of Temujin Vandergroen, as charged in Act of Racketeering
One”);
	see also ECF No. 1274-1 ¶ 28 (alleging (a) conspiracy to rob Temujin
Vandergroen, (b) the murder of Temujin Vandergroen, and (c) arson of a motor
vehicle). 	Again, the Court’s—and the Grand Jury’s—focus was on the murder, not
conspiracy or arson, as the crime of violence on which Count X was based. Further,
in instructing the jury on Count X, the Court explicitly stated: “I instruct you that as
a matter of law the offense alleged in Act of Racketeering One, the murder of Temujin
Vandergroen, is a crime of violence . . . .” ECF No. 1274-3 at 4.
Returning to Count XII, the jury instructions provide more context. As did the
Redacted Superseding Indictment, the jury instructions for Count XII described the
crime of violence that served as the predicate act as “the murder of Jose Mendez . . .
.” ECF No. 1274-2 at 3. The Court continued:
In considering this charge, you are to apply the same instructions I gave
you for Count Ten, as well as the instructions I gave you with respect to
13 	The Court again 	notes 	that Mr. 	Roman was not charged in either
Racketeering Act One or Count X.
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the murder of Jose Mendez, in connection with Act of Racketeering Two
in Count One and Count Four.
Id. In its instructions for Racketeering Act Two, the Court reiterated the instructions
it had given the jury for Racketeering Act One on the definition of murder in Rhode
Island, aiding and abetting, and coconspirator liability. 	ECF No. 1274-5 at 3-5. 	As
for Count IV, the VICAR murder of Jose Mendez, the Court referred to the
instructions it had given on murder, conspiracy to murder, and aiding and abetting
murder. ECF No. 1285-3 at 2-3, 4-5.
This is not a situation in which the jury instructions conflicted with the
indictment.
	Cf. 	United States v. White, 510 F. Supp. 3d 433, 445-48 (W. D. Tex.
2020) (vacating § 924(c) convictions where defendants were indicted for Hobbs Act
robbery, but the court instructed the jury on Hobbs Act extortion, resulting in
uncertainty as the crime of conviction and, by extension, whether it was a crime of
violence). Here, the jury instructions were in accord with the Redacted Superseding
Indictment. According to the Redacted Superseding Indictment, the predicate crime
of violence for Count XII was the murder of Jose Mendez. ECF No. 1274-1 ¶ 52. The
jury instructions for Count XII incorporated the instructions for Racketeering Act
Two (the murder of Jose Mendez)—which, in turn, referenced the jury instructions
for Count I, Racketeering Act One (the murder of Temujin Vandergroen)—Count IV
(the VICAR murder of Jose Mendez), and Count X (a separate § 924(c) charge based
on the murder of Temujin Vandergroen). ECF No. 1274-2 at 3. Neither the Redacted
Superseding Indictment nor the jury instructions on Count X and Count XII
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referenced the conspiracy portions of Count I, Racketeering Acts One and Two,
respectively.
There can be little doubt that both the Redacted Superseding Indictment and
the jury instructions for Count XII focused on the murder of Jose Mendez as the
predicate act for the § 924(c) charge. 	Thus, the Court cannot find that the jury’s
Count XII verdict was more likely than not predicated on Racketeering Act Two (a),
the conspiracy charge. Thus, the Court concludes that Mr. Roman has not sustained
his burden of proving that it is more likely than not that the jury’s guilty verdict on
the § 924(c) charge was based on an invalid predicate.
Mr. Roman still maintains that the Court’s use of the general verdict form and
lack of instruction as to unanimity for Racketeering Act Two leaves open the
possibility that the jury did not unanimously find Mr. Roman guilty of the murder of
Jose Mendez, as charged in Racketeering Act Two (b).
	See ECF No. 1274 at 4, 12;
ECF No. 1291 at 7-8. As Mr. Roman suggests, some jurors may have found him guilty
of the murder, some the conspiracy to murder, and some both. 	ECF No. 1291 at 7-8;
see, e.g.,
In re Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016) (“[A] general verdict of
guilty does not reveal any unanimous finding by the jury that the defendant was
guilty of conspiring to carry a firearm during one of the potential predicate offenses,
all of [the] predicate offenses, or guilty of conspiring during some and not others.”);
United States v. Ivory, Crim. Action No. 04-20044, 2020 WL 3832929, at *4 (D. Kan.
July 8, 2020) (“The jury returned a general verdict of guilty on Count 11, which did
not include a finding that defendant was guilty of using a firearm during the
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commission of the conspiracy to kill a witness (which is not a crime of violence) or the
attempted killing of a witness (which is a crime of violence), or both.”). 	Therefore,
according to Mr. Roman, it is not certain that the “crime of violence” required to
convict Mr. Roman under § 924(c) in Count XII was based on a valid predicate crime.
ECF No. 1274 at 4, 9-10; ECF No. 1291 at 11-12.
“The requirement that a federal jury be unanimous is a bedrock principle of
our criminal jurisprudence.”
	United States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003)
(citing
Richardson v. United States, 526 U.S. 813, 817 (1999);
Schad v. Arizona, 501
U.S. 624, 634 n.5 (1991) (plurality opinion)). However:
The unanimity requirement does not impose a rule that all twelve jurors
in a federal criminal case must agree on every last detail. 	Sovereigns
define crimes by enumerating their factual elements, and the unanimity
requirement attaches to those elements. 	To that extent—and only to
that extent—unanimity is an indispensable condition precedent to
conviction. 	. . . 	Thus, if a jury is confronted with divergent factual
theories in support of the same ultimate issue, courts generally have
held that the unanimity requirement is met as long as the jurors are in
agreement 	on 	the 	ultimate 	issue 	(even 	though 	they 	may 	not 	be
unanimous as to the precise theory).
Id. at 36 (internal citations omitted);
see also United States v. Reeder, 170 F.3d 93,
105 (1st Cir. 1999) (“In
Schad v. Arizona, the Supreme Court held that, in returning
general verdicts in cases in which the government has alleged in a single count that
the defendant committed the offense by one or more specified means, jurors are not
required to agree upon a single means of commission. While a jury must agree on all
the elements of an offense, it need not agree on the means by which all the elements
were accomplished.”) (internal citations omitted). 	The
Reeder court concluded that
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“[w]hile the jury had to unanimously agree that Reeder knowingly participated in a
scheme to defraud—an element of the crime—they did not, contrary to Reeder’s
contention, have to unanimously agree on each piece of evidence offered to prove
Reeder’s participation.”
	Id.;
see also Maxwell v. Thaler, 350 F. App’x 854, 857 (5th
Cir. 2009) (following
Schad and rejecting challenge to jury instructions based on
court’s failure to require jury to agree unanimously which alleged predicate offense,
robbery or kidnapping, rendered murder a capital offense);
Obershaw v. Lanman, 453
F.3d 56, 57, 64 (1st Cir. 2006) (rejecting argument that defendant’s conviction was
unconstitutional because jury was not instructed it had to be unanimous as to which
particular factors supporting his conviction for first degree murder based on extreme
atrocity or cruelty were present).
But see Gomez, 830 F.3d at 1227 (noting “‘dangers’
that may lurk in indictments that list multiple potential predicate offenses in a single
§ 924(c) count’”).
The Supreme Court has said that “[a] conviction based on a general verdict is
subject to challenge if the jury was instructed on alternative theories of guilt and may
have relied on an invalid one.”
	Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per
curiam). “[A] reviewing court finding such error should ask whether the flaw in the
instructions ‘had [a] substantial and injurious effect or influence in determining the
jury’s verdict.’”
Id. (quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993));
see also
Ortiz-Graulau v. United States, 756 F.3d 12, 20 (1st Cir. 2014) (“On collateral review,
the inquiry is whether any trial error had a ‘substantial and injurious effect or
influence in determining the jury’s verdict.’” (quoting
Brecht, 507 U.S. at 638));
Ivory,
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2020 WL 3832929, at *4 (“On habeas review . . . a defendant is not entitled to relief
unless a constitutional error had a substantial and injurious effect or influence in
determining the jury’s verdict.”) (internal quotation marks omitted);
Durfee v. United
States, No. 16-cv-280, 2020 WL 1942324, at *3 (D.N.H. Apr. 20, 2020) (citing
Ortiz-
Graulau, 756 F.3d at 20);
Johnson v. United States, CR-05-920, 2019 WL 1790218, at
*5 (C.D. Cal. Apr. 23, 2019) (citing
Hedgpeth, 555 U.S. at 58, and quoting
Brecht, 507
U.S. at 623). 	In the circumstances presented here,
constitutional error occurs when a jury is instructed on alternative
theories of guilt and returns a general verdict that may rest on a legally
invalid theory. 	On review under § 2255, the harmless error standard
applies to constitutional errors due to flawed jury instructions. 	More
specifically, the harmless error standard applies in § 2255 cases where
the petitioner challenges a § 924(c) jury instruction on the ground that
it included an invalid predicate offense.
Durfee, 2020 WL 1942324, at *3 (internal citations and quotation marks omitted).
Trial error is considered harmless “if it is highly probable that the challenged action
did not affect the judgment.”
Id. (internal quotation marks omitted);
see also Scott v.
United States, 08 Cr. 360, 2021 WL 5745699, at *3 (S.D.N.Y. Dec. 2, 2021) (“In the
Second Circuit, the Court of Appeals has applied [
Hedgpeth] to mean a defendant is
not prejudiced by an infirm instruction if the jury would have necessarily found the
[defendant] guilty on one of the properly instructed theories of liability.”) (second
alteration in original) (internal quotation marks omitted). 	It is the Government’s
burden to show that the trial error was harmless.
Sustache-Rivera v. United States,
221 F.3d 8, 18 (1st Cir. 2000).
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In
Durfee, the jury was instructed that charges of conspiracy to rob and robbery
of a supermarket were both predicate crimes of violence for purposes of an alleged §
924(c) offense. 2020 WL 1942324, at *4. The jury found the defendant guilty of the
§ 924(c) charge, but was not asked to, and did not, identify the relevant predicate
offense.
Id.
Durfee moved to vacate his § 924(c) conviction pursuant to § 2255 after
Davis.
Id. at *1-2. 	In opposition, the government argued that “based on the evidence the
jury could not have found that Durfee used or carried a gun in furtherance of the
conspiracy, but not the robbery.”
Id. at *4. The court stated:
Courts that have considered the effect of alternative predicate offense
instructions on a § 924(c) charge, when one or more of the potential
predicate offenses was invalid, have applied that reasoning. 	When the
valid and invalid predicate offenses were not coextensive and instead
involved different criminal activities, a reasonable probability exists
that the jury would not have found a crime of violence absent the invalid
predicate offense.
. . .
On the other hand, when the valid and invalid predicate offenses are
coextensive, 	a 	reasonable 	probability 	does 	not 	exist 	that the 	jury
convicted based only on the invalid offense. Under those circumstances,
the erroneous instruction was harmless.
Id. (internal footnote and citations omitted) (citing cases);
see also McDonald v.
United States, No. 17-cv-329, 2021 WL 260397, at *1 (D.N.H. 2021) (“The jury
instructions given with respect to the Section 924(c) counts, while retroactively
rendered erroneous by the
Davis, decision, were nevertheless harmless, given that
the conspiracy to rob and the substantive robbery counts (the potential predicates)
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were factually and pragmatically coextensive. 	The robbery offenses qualified as
‘crimes of violence’ predicates, and the jury’s verdict on the Section 924(c) counts
remain valid.”);
	Rosario Figueroa v. United States, No. 16-CV-4469, 2020 WL
2192536, at *4 (S.D.N.Y. May 6, 2020) (“The Second Circuit has recognized . . . that
even in cases with general verdicts, it may not be impossible to tell which ground the
jury selected; the conviction need not be vacated if the jury would have necessarily
found the defendant guilty on the valid ground. 	In the context of § 924(c), when a
conviction rests on the use of a gun in relation to multiple predicates, and one of the
predicates is later found to be invalid, the conviction may still survive if the § 924(c)
charge is clearly supported by a [ ] predicate presenting no legal concern.”) (second
alteration in original) (internal citations and quotation marks omitted).
Here, 	the 	Government 	argues 	persuasively 	that 	the 	valid 	and 	invalid
predicates are coextensive. 	ECF No. 1285 at 22-23. 	The same people convicted of
conspiring to murder Jose Mendez were the same people convicted of murdering Mr.
Mendez.
	See ECF No. 1274-1 ¶ 29;
see also Durfee, 2020 WL 1942324, at *5. 	The
objective of the conspiracy did not encompass a wider range of criminal activities than
the murder of Jose Mendez.
	See ECF No. 1274-1 ¶ 29;
see also Durfee, 2020 WL
1942324, at *5 (finding that defendant “ha[d] not shown there was evidence at trial
that Durfee used that gun or any other gun or engaged in other activity in furtherance
of the Vista Foods robbery conspiracy that was separate from the robbery itself”).
Rather, the objective of the conspiracy was the murder of Jose Mendez,
see ECF No.
1274-1 ¶ 29, and Mr. Mendez was, in fact, murdered,
see id.;
see also Lara, 181 F.3d
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at 203. 	Thus, as was the case in
Durfee, the conduct involved in both sections of
Racketeering Act Two was intertwined.
	See 2020 WL 1942324, at *5 (“[T]he
conspiracy and the robbery involved the same actors and actions.”). 	Therefore, the
use of a general verdict form and lack of jury instruction on unanimity as to
Racketeering Act Two did not have a substantial and injurious effect on the verdict.
See id. (“For that reason, the Hobbs Act robbery of the Vista Foods supermarket was
the likely predicate offense, and the jury could not have found that conspiracy alone
was the predicate offense for [the § 924(c) charge].”);
see also Ivory, 2020 WL 3832929,
at *4 (“The Court cannot envision how the jury could have concluded that the firearm
had been discharged in connection with only one of the two predicate offenses.”);
Durfee, 2020 WL 1942324, at *5 (“If the jury convicted the petitioner of the Hobbs
Act robbery, it does not make sense that the jury could find the petitioner used a
firearm in the conspiracy but not the robbery.”);
Vilar v. United States, No. 96-CR-
551, 2020 WL 85505, at *3 (S.D.N.Y. Jan. 3, 2020) (“There is simply no interpretation
of the facts in the record that would have allowed a finding that Petitioner used the
gun in furtherance of the conspiracy but not the attempt[ed carjacking].”);
United
States v. Francies, No. 1:16-cv-5531, 2019 WL 4120444, at *7 (N.D. Ill. Aug. 28, 2019)
(“The only rational interpretation of the evidence at trial is that the jury based its
conviction for the 924(c) count on the actual attempted robbery that was committed
at gunpoint.”).
Lending further support to the Court’s conclusion is the fact that Mr. Roman
was convicted of the same conduct, the murder of Jose Mendez, in Count IV, VICAR
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murder.
	See Lara, 181 F.3d at 202. 	The conduct there is intertwined with the
conduct in Racketeering Act Two (b), although the Redacted Superseding Indictment
does not include Count IV as a predicate for Count XII.
	See ECF No. 1274-1 ¶¶ 41,
52. 	If the jury found Mr. Roman guilty of murdering Mr. Mendez in Count IV, it
stands to reason that the jury also found him guilty of the murder of Jose Mendez in
Racketeering Act Two.14	
See, e.g.,
United States v. Eldridge, 2 F.4th 27, 39 (2d Cir.
2021) (“All of this testimony was entwined—with the agreement to commit the
robbery, 	the 	attempt 	to 	commit 	the 	robbery, 	the 	kidnapping, 	and 	Eldridge’s
brandishing of the gun forming part of a single narrative. 	On this evidence, it is
inconceivable that the jury could have returned a guilty verdict on any of these counts
(as it did on all of them) without concluding that, at a minimum, Eldridge attempted
to rob Johnson of his drugs, and that he did so using a gun.”);
id. (“Indeed, the guilty
verdicts on Counts Five, Six, and Seven, viewed together, reinforce the conclusion
that the jury would have convicted Eldridge on Count Seven if the only theory had
been attempted robbery.”). 	Thus, any error in failing to instruct the jury regarding
unanimity as to Racketeering Act Two did not have a substantial and injurious effect
on the verdict and is, therefore, harmless.
	See Ortiz-Graulau, 756 F.3d at 20;
Sustache-Rivera, 221 F.3d at 18;
see also ECF No. 1285 at 22-23.
14 	To the extent Mr. Roman argues the Court erred in incorporating the jury
instruction for Count IV into its instruction for Count XII, the Court finds that any
such error did not have a substantial and injurious effect on the verdict and is
therefore harmless, for the reasons stated above.
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Given the Redacted Superseding Indictment’s language in Count XII (focusing
on the murder of Jose Mendez, as charged in Racketeering Act Two (b)), the similar
language in Count X (referring to the murder of Temujin Vandergroen, as charged in
Racketeering Act One), the Court’s instruction for Count X that murder was a crime
of violence, and the fact that the jury convicted Mr. Roman of the murder of Mr.
Mendez in Count IV (VICAR murder), the Court finds that Mr. Roman has not met
his burden of proving that it is more likely than not that the jury found him guilty of
violating § 924(c) based on an invalid predicate, conspiracy to murder Jose Mendez
as charged in Racketeering Act Two (a).
	See Dimott, 881 F.3d at 240 (noting
petitioner’s burden to show that it was more likely than not that “it was the use of
the residual clause that led to the sentencing court’s enhancement of his sentence,”
and that “[a] mere possibility is not enough”). 	Further, the use of the general verdict
form and lack of instruction on unanimity with respect to Racketeering Act Two did
not have a substantial and injurious effect on the jury’s verdict on Count XII, the §
924(c) charge.
See Ortiz-Graulau, 756 F.3d at 20;
McDonald, 2021 WL 260397, at *1.
Mr. Roman’s remaining argument is that, even assuming the jury predicated
its Count XII verdict on the murder portion of Count I, Racketeering Act Two (as
opposed to conspiracy to murder), that verdict still cannot stand. ECF No. 1274 at 14-
15. 	This, too, is because the jury returned a general verdict form.
	Id. at 12-13, 14.
Put differently, the jury did not have to find unanimously that Mr. Roman committed
the murder of Jose Mendez as a principal, aider and abettor, or coconspirator.
Id. at
14; ECF No. 1291 at 13. According to Mr. Roman, under the categorical or modified
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categorical approach, neither aiding and abetting nor coconspirator liability contains,
as an element, the use or threatened use of force, as required by § 924(c). 	ECF No.
1274 at 13, 14-15; ECF No. 1291 at 12-13. Thus, Mr. Roman argues that murder, as
charged in this case, cannot serve as a predicate crime of violence under the force
clause of § 924(c) because Mr. Roman may have been found guilty as an aider and
abettor or as a coconspirator.
See ECF No. 1274 at 12-13, 14-15.
The Government, on the other hand, argues that aiding and abetting as well
as coconspirator liability are theories of liability, which need not contain as an
element the use or threatened use of force. ECF No. 1285 at 17;
see also Garcia-Ortiz,
904 F.3d at 109 (noting that an aider and abettor is punishable as a principal “and
thus no different for purposes of the categorical approach than one who commits the
substantive offense” (citing
Lassend, 898 F.3d at 132-33)). 	The underlying crime,
murder, most certainly does. ECF No. 1285 at 13;
see also Ivory, 2020 WL 3832929,
at *3 (“[T]o decide whether Count 10 satisfies the elements clause of Section 924(c),
the Court looks to the underlying statute of conviction—attempted killing of a
witness, 28 U.S.C. § 1512(a)(1)(A)—rather than the aiding and abetting statute, 18
U.S.C. § 2.”);
accord United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021) (“The
Woods brothers’ argument conflates the predicate crimes of violence underlying their
§ 924(c) conviction (which are not conspiracy charges) and the basis of liability for the
924(c) charges, which may have been
Pinkerton liability.”).
Section 11-1-3 of the Rhode Island General Laws provides that:
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Every person who shall aid, assist, abet, counsel, hire, command, or
procure another to commit any crime or offense, shall be proceeded
against as a principal or as an accessory before the fact, according to the
nature of the offense committed, and upon conviction shall suffer the
like punishment as the principal offender is subject to by this title.
R.I. Gen. Laws § 11-1-3;
see also State v. Davis, 877 A.2d 642, 648 (R.I. 2005) (“The
law is well settled that one who aids and abets in the commission of the crime and is
also present at the scene may be charged and convicted as a principal.”) (internal
quotation marks omitted). 	Section 11-1-3 “eliminates the legal distinction between
the commission of a crime as a principal and aiding and abetting another in the
commission of a crime, and for this reason, defendant’s manner of participation,
whether as a principal or an aider or abettor, is not an element of the crime.”
	State
v. Davis, 877 A.2d at 648;
see also State v. Parillo, 228 A.3d 613, 629-30 (R.I. 2020)
(“This Court has held that aiding and abetting is but a theory of liability, and not a
separate offense.” (citing
State v. Davis, 877 A.2d at 648));
State v. Davis, 877 A.2d
at 648 (“Because defendant’s manner of participation is not an element of the crimes
charged in the indictment, the state need not persuade a unanimous jury beyond a
reasonable doubt that defendant was a principal or an aider and abettor.”);
accord
Gandia-Maysonet v. United States, No. 16-cv-2151, 2020 WL 5646457, at *4 (D.P.R.
Sept. 22, 2020) (“The First Circuit found that 18 U.S.C. § 2 ‘makes an aider and
abettor “punishable as the principal,” and thus no different for purposes of the
categorical approach than one who commits the substantive offense.’” (quoting
Garcia-Ortiz, 904 F.3d at 108)).
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The Redacted Superseding Indictment in Count I, Racketeering Act Two (b)
charged that Mr. Roman and several co-defendants murdered Jose Mendez, in
violation of §§ 11-23-1
and 11-1-3 of the Rhode Island General Laws.15 ECF No. 1274-
1 ¶ 29. Count IV, VICAR murder of Jose Mendez, also charged Mr. Roman and others
with violating §§ 11-23-1 and 11-1-3.
Id. ¶ 41.
The Court at first instructed the jury on aiding and abetting in Count I,
Racketeering Act One. 	ECF No. 1274-6 at 6-7. 	The Court referred back to those
instructions in its instructions to the jury with respect to Racketeering Act Two:
Second, my previous instructions as to the law of aiding and abetting,
and as to the law of coconspirator liability, are applicable. In this vein,
I would remind you that a person who counsels, hires, commands, or
procures another to commit a murder is just as responsible for that
murder as the actual killer. 	Further, one who conspires with another
person is guilty of any crimes carried out in furtherance of that
conspiracy, as long as those crimes are a reasonably foreseeable result
of the conspiracy.
Thus, if you conclude that any of the defendants charged either aided or
abetted another defendant, or conspired to kill Jose Mendez, you may
find him guilty of the murder of Jose Mendez even though he did not
physically participate in the murder, or was not present at the murder
scene.
ECF No. 1274-5 at 4-5.
15 	In contrast, Racketeering Act Two (a), conspiracy to murder Jose Mendez,
alleged violation of §§ 11-1-6 and 11-23-1. Section 11-1-6 provides that:
Except as otherwise provided by law, every person who shall conspire
with another to commit an offense punishable under the laws of this
state shall be subject to the same fine and imprisonment as pertain to
the offense which the person shall have conspired to commit, provided
that imprisonment for the conspiracy shall not exceed ten (10) years.
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As for coconspirator liability, “Rhode Island adheres to the
Pinkerton theory of
vicarious liability, which holds a co-conspirator criminally liable for the actions of
another co-conspirator if those actions were committed in furtherance of an existing
conspiracy.”
State v. Ros, 973 A.2d 1148, 1164 (R.I. 2009) (citing
Pinkerton, 328 U.S.
at 635, 647). The First Circuit, too, has upheld the use of coconspirator liability on a
§ 924(c) charge.
	See United States v. Hernandez-Roman, 981 F.3d 138, 144 (2020)
(“As we have said, a
Pinkerton instruction exposes a coconspirator to criminal
liability for the substantive crimes committed in the course of the conspiracy,
regardless of whether he or some other coconspirator actually perpetrated the
crimes.”) (internal quotation marks omitted);
id. at 145 (“We have held that where,
as here,
Pinkerton liability is in play, the defendant does not need to have carried the
gun himself to be liable under section 924(c).”) (internal quotation marks omitted);
United States v. Vazquez-Castro, 640 F3d 19, 25 (1st Cir. 2011) (“[T]he district court
here did not plainly err by instructing the jury on the
Pinkerton theory of liability as
an alternative to the aiding and abetting theory. 	Even though only the aiding and
abetting theory was specifically referenced in the indictment, each theory was
implicit in the firearm charge against him.”);
see also Woods, 14 F.4th at 553 (noting
that other circuits had concluded that “a defendant can be convicted of a § 924(c)
charge based on a theory of
Pinkerton liability” and citing cases).
The Court instructed the jury that Mr. Roman may be held liable for the
murder of Jose Mendez based on a theory of coconspirator liability.
See ECF No. 1274-
2 at 3. 	As noted above, the Court stated in that instruction:
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A coconspirator may be guilty of an offense even though he did not
directly participate in the acts constituting that offense. A coconspirator
is responsible not only for his own acts, but also for the substantive acts
of his coconspirators that are done in furtherance of the conspiracy, and
are a reasonably foreseeable result of that conspiracy. 	Indeed, a
coconspirator who commits an offense pursuant to a conspiracy is held
to be the agent of the other coconspirators.
ECF No. 1274-6 at 7. Although given with respect to Count I, Racketeering Act One,
the Court incorporated this instruction into its instructions for Racketeering Act Two
as well. ECF No. 1274-5 at 4-5.
The Rhode Island Supreme Court has stated that a jury need not decide
unanimously among different theories of liability in convicting a defendant
. State v.
Delsestre, 35 A.3d 886, 899 (R.I. 2012) (“[T]he prosecution is not required to persuade
a unanimous jury beyond a reasonable doubt with respect to the
manner in which a
defendant participated in a crime.”);
see also State v. Davis, 877 A.2d at 648 (“[A]s
long as a jury, having been properly instructed about the alternative theories of
participation, is unanimously convinced beyond a reasonable doubt that . . . defendant
has participated in the crime as either an aider/abettor or as a direct principal, the
jury is not required
also unanimously to determine the
manner of defendant’s
participation.”);
Parillo, 228 A.3d at 630 (same). Thus, under Rhode Island law, the
jury did not have to decide whether Mr. Roman was guilty of the murder of Jose
Mendez as a principal, aider and abettor, or coconspirator, if it unanimously found
that Mr. Roman was guilty of the unlawful killing of Mr. Mendez with malice
aforethought, i.e., the elements of second-degree murder.
	Delsestre, 35 A.3d at 900
(“In the instant case, the burden was at all times on the prosecution to prove the
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presence of the elements set forth in the statute defining murder—
viz., (1) that there
was an unlawful killing of a human being and (2) that it was done with malice
aforethought. 	It follows that unanimity was required only as to those bottom line
elements, not as to whether a defendant was acting as a principal, as an aider and
abettor, or as a coconspirator.” (citing
Schad, 501 U.S. at 631-32)) (internal citation
and quotation marks omitted);
see also id. at 901 (“In light of the defined elements of
murder, it is our opinion that the jury was not required to unanimously agree as to
whether defendant was guilty of second-degree murder as a principal, or as an aider
or abettor, or as a coconspirator.”).
The Court instructed the jury that it could find Mr. Roman guilty as a principal
or under theories of aiding and abetting or coconspirator liability. 	Under Rhode
Island law, the jury did not have to make a unanimous finding as to the manner of
Mr. Roman’s participation in the murder of Jose Mendez—as a principal, aider and
abettor, or coconspirator—if it unanimously found Mr. Roman guilty of the murder of
Mr. Mendez. 	It did. 	Thus, the Court rejects Mr. Roman’s argument that murder
under Rhode Island law is not a crime of violence for purposes of § 924(c) because it
may be committed under theories of aiding and abetting or coconspirator liability.
Mr. Roman has not met his burden of demonstrating that it is more likely than
not that the jury based its Count XII guilty verdict solely on the conspiracy to murder
Jose Mendez, as charged in Count I, Racketeering Act Two.
See Dimott, 881 F.3d at
243. 	That the jury may have convicted Mr. Roman of murder as a principal, as an
aider and abettor of murder, or as a coconspirator does not change the outcome.
See
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Delsestre, 35 A.3d at 901. 	Therefore, the Court must deny Mr. Roman’s Motion to
Vacate.
CONCLUSION
Mr. Roman has not met his burden of demonstrating that he is entitled to
relief. The Court therefore DENIES Shariff Roman’s Motion to Vacate his conviction
and sentence for Count XII under 28 U.S.C. § 2255 (ECF No. 1232).
RULING ON CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing § 2255 Proceedings in the United
States District Courts (“§ 2255 Rules”), this Court finds that this case is appropriate
for issuing a certificate of appealability, because Mr. Roman has made a substantial
showing of the denial of a constitutional right on any claim, as required by 28 U.S.C.
§ 2253(c)(2).
Mr. Roman is advised that any motion to reconsider this ruling will not extend
the time to file a notice of appeal here.
See § 2255 Rule 11(a).
IT IS SO ORDERED.
__________________________
John J. McConnell, Jr.
Chief United States District Judge
Date: February 23, 2022
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