22-3207-cr

United States v. Berry 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC 

DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO 

A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 17th day of May, two thousand twenty-four. 

PRESENT: PIERRE N. LEVAL, 

 SARAH A. L. MERRIAM, 

 MARIA ARAÚJO KAHN, 

 Circuit Judges. 

 

__________________________________________ 

UNITED STATES OF AMERICA, 

Appellee, 

 v. No. 22-3207-cr

RALPH BERRY, a/k/a Sealed Defendant 1, 

Defendant-Appellant, 

FRANK LOPEZ, a/k/a Sealed Defendant 2, 

Defendant. 

__________________________________________ 
2 

FOR APPELLEE: JACOB R. FIDDELMAN (Dominic A. Gentile, 

James Ligtenberg, on the brief), Assistant United 

States Attorneys, for Damian Williams, United 

States Attorney for the Southern District of New 

York, New York, NY. 

FOR DEFENDANT-APPELLANT: STEVEN Y. YUROWITZ, Newman & Greenberg, 

LLP, New York, NY. 

 Appeal from a judgment of the United States District Court for the Southern 

District of New York (Nathan, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the December 21, 2022, judgment is AFFIRMED. 

 Defendant-appellant Ralph Berry appeals from a judgment of conviction after a 

jury trial. Berry was found guilty of one count of murder through the use of a firearm, in 

violation of 18 U.S.C. §924(j)(1) (“Count One”); one count of murder while engaged in a 

narcotics offense, in violation of 21 U.S.C. §848(e)(1)(A) (“Count Two”); and one count 

of murder in aid of racketeering (“VICAR murder”), in violation of 18 U.S.C. 

§1959(a)(1) (“Count Three”).

1

 Berry was accused of ordering Frank Lopez to shoot the 

leader of a rival drug crew in the Bronx in June 2000. Lopez instead shot an innocent 

bystander, Caprice Jones, who died in 2010 of complications from his injuries.

Before the case was submitted to the jury, Berry moved for a judgment of 

acquittal, arguing that the evidence was insufficient to support a conviction on Counts 

1

 Berry was also charged with aiding and abetting each of these offenses pursuant to 18 U.S.C. 

§2. 
3 

One and Two because Jones died more than a year and a day after the shooting. See

Rogers v. Tennessee, 532 U.S. 451, 453 (2001) (“At common law, the year and a day rule 

provided that no defendant could be convicted of murder unless his victim had died by 

the defendant’s act within a year and a day of the act.”). Berry’s trial counsel did not 

make the same argument with respect to Count Three; indeed, counsel expressly 

conceded that the VICAR murder statute, 18 U.S.C. §1959(a), does not incorporate the 

year-and-a-day rule. The District Court reserved judgment, and Berry renewed his motion 

after the jury’s verdict. The District Court agreed with Berry that §924(j)(1) incorporates 

the common-law year-and-a-day rule and therefore entered a judgment of acquittal with 

respect to Count One, but it denied Berry’s motion with respect to Count Two. The 

District Court subsequently sentenced Berry principally to twenty years of imprisonment 

on Count Two, to run concurrently with the mandatory term of life imprisonment on 

Count Three.

 Berry, now represented by new counsel, argues that his trial counsel provided 

ineffective assistance of counsel by failing to argue to the District Court that the VICAR 

murder statute incorporates the year-and-a-day rule. Berry also argues that his conviction 

on Count Two violates the Double Jeopardy Clause, because he was previously convicted 

of a drug conspiracy covering the same time frame as the drug conspiracy underlying this

charge. 

We assume the parties’ familiarity with the underlying facts, procedural history, 

and issues on appeal, and recite them only as necessary to explain our decision to affirm. 
4 

I. VICAR Murder and the Year-and-a-Day Rule 

Berry contends that he received ineffective assistance of counsel because his trial 

attorney failed to move for a judgment of acquittal on Count Three on the basis that the 

VICAR murder statute, 18 U.S.C. §1959(a), incorporates the year-and-a-day rule, and 

Jones died ten years after the shooting. To show ineffective assistance of counsel, an 

appellant must satisfy two criteria. “First, the defendant must show that counsel’s 

performance was deficient. . . . Second, the defendant must show that the deficient 

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 

(1984). We do not ordinarily hear claims of ineffective assistance of counsel that are 

raised for the first time on direct appeal because in such cases, no factual record has been 

developed in the district court. But where, as here, the issue “is both straightforward and 

susceptible to resolution as a matter of law,” there is no reason to defer consideration of 

the ineffective assistance claim. United States v. De La Pava, 268 F.3d 157, 163 (2d Cir. 

2001) (citation and quotation marks omitted). 

Berry’s ineffective assistance claim fails because he has not shown that “counsel’s 

performance was deficient,” as required by Strickland, 466 U.S. at 687. Indeed, our 

precedent forecloses the argument Berry contends his trial counsel should have raised. 

Section 1959(a) penalizes, among other things, the commission of murder “in violation of 

the laws of any State or the United States,” in aid of a racketeering enterprise. 18 U.S.C. 

§1959(a). The Superseding Indictment alleges that Berry violated §1959(a) by 

committing second-degree murder under New York Penal Law §125.25 and §20.00, 

specifically, by ordering Lopez “to carry out a shooting which caused Jones’s death.” 
5 

App’x at 27. Berry contends that the conduct supporting a VICAR murder charge must 

violate both New York’s murder statute, which he acknowledges does not incorporate the 

year-and-a-day rule, and the federal offense of murder, which he argues does incorporate 

the rule – even though the only predicate offense charged is a violation of New York state 

law. 

We have previously rejected a similar argument where a defendant-appellant was 

charged with VICAR murder based on his commission of felony murder under New York 

state law. See United States v. Mapp, 170 F.3d 328, 335 (2d Cir. 1999). In Mapp, the 

defendant argued that “section 1959 should be interpreted as punishing only intentional 

murders,” and the evidence at his trial “at most proved that he killed [the victim] 

accidentally.” Id. But “New York’s felony murder law mandates that an individual is 

guilty of second-degree murder if he participates in a robbery that results in the death of a 

non-participant.” Id. We concluded that “section 1959, without qualification, leaves to 

state law the definition of the predicate acts of murder.” Id. at 336.2 

2

 Berry contends that Mapp has been called into question, citing a Fourth Circuit decision 

concluding “that Congress intended for individuals to be convicted of VICAR assault with a 

dangerous weapon by engaging in conduct that violated both that enumerated federal offense as 

well as a state law offense.” United States v. Keene, 955 F.3d 391, 398-99 (4th Cir. 2020). 

Whatever the merits of the Keene decision, “prior opinions of a panel of this court are binding 

upon us in the absence of a change in the law.” United States v. Moore, 949 F.2d 68, 71 (2d Cir. 

1991). Mapp remains good law. See United States v. Delgado, 972 F.3d 63, 73, 73 n.8 (2d Cir. 

2020) (considering accomplice liability under both New York and federal law because VICAR 

murder charge expressly referred to both); see also United States v. Perez, 138 F. App’x 379, 381 

(2d Cir. 2005) (summary order) (considering VICAR murder conviction with a Connecticut-law 

predicate). 
6 

It is undisputed that New York abandoned the year-and-a-day rule long ago. See

People v. Brengard, 265 N.Y. 100, 106 (N.Y. 1934). Second-degree murder under New 

York law therefore does not incorporate the year-and-a-day rule. Berry was charged and 

convicted under VICAR based on the New York predicate offense. Therefore, his charge 

and conviction likewise are not subject to the rule. 

In sum: Section 1959(a), as charged in this matter based solely on a violation of 

New York law, does not incorporate the year-and-a-day rule. We therefore find that 

Berry’s counsel was not ineffective for failing to raise this argument at trial, because no 

amount of argument would have changed the outcome.3

 

II. Double Jeopardy 

Berry argues that his prosecution on Count Two, murder while engaged in a 

narcotics conspiracy, violates the Double Jeopardy Clause because he was convicted in 

2008 of the predicate narcotics conspiracy. Berry attempted to raise this argument in a 

motion to dismiss that he submitted himself – not through his counsel – to the District 

Court. See App’x at 29-30. The District Court declined to consider the motion because 

Berry was represented by counsel. See id.; see also United States v. Rivernider, 828 F.3d 

3 Berry’s counsel asserted at oral argument before this Court that he had adequately raised a 

substantive direct appeal challenge to the conviction on Count Three, in addition to the 

ineffective assistance of counsel claim. Berry’s briefing identifies the issue presented as: “Was 

Berry deprived of his constitutional right to the effective assistance of counsel, where defense 

counsel failed to challenge his conviction under Count Three charging a VICAR murder charge 

based on the year and a day rule?” Appellant’s Br. at 2. Furthermore, the brief only discusses the 

§ 1959(a) year-and-a-day issue in the context of the ineffective assistance of counsel claim. It is 

not at all clear that Berry has adequately preserved this issue on appeal. However, we need not 

determine whether Berry adequately made a substantive challenge to his conviction on Count 

Three, because, as set forth above, any such claim would lack merit. 
7 

91, 108 (2d Cir. 2016) (“A defendant has a right either to counsel or to proceed pro se, 

but has no right to ‘hybrid’ representation . . . .” (citation omitted)). The District Court 

noted that even if it reached the merits of the motion, the motion would be denied as 

“frivolous.” App’x at 30.4

 

This Court has recently addressed the interplay of 21 U.S.C. §846 and 21 U.S.C. 

§848(e)(1)(A) and has resolved this very question against Berry’s position. In United 

States v. Aquart, the appellant was convicted at the same trial under both §846 and 

§848(e)(1)(A). See 92 F.4th 77, 101-02 (2d Cir. 2024). He argued “that because the 

charged crack conspiracy was . . . the specified predicate crime for the charged drugrelated murders, that conspiracy must be considered a lesser included offense to the 

§848(e)(1)(A) murders, for which he cannot stand convicted or be punished without 

violating double jeopardy.” Id. at 102. This Court disagreed: 

In Garrett[ v. United States, 471 U.S. 773 (1985)], the Supreme Court 

concluded, based on “common sense” and the “language, structure, and 

legislative history” of §848, that Congress intended for the CCE provisions 

of §848 to state separate offenses from any substantive drug crimes under 

other statutory sections that might be used to prove the enterprise. 471 U.S. 

at 785, 779, 781 (holding that double jeopardy did not preclude §848 

prosecution based in part on proof of §952 drug importation for which 

defendant had earlier been indicted). . . . While Garrett’s focus was on the 

CCE provisions of §848, its reasoning applies with equal force to the statute’s 

drug-related murder provision here at issue. 

4

 The government argues that Berry’s double-jeopardy challenge was not raised before the 

District Court, and we therefore must review it for plain error. See United States v. Polouizzi, 

564 F.3d 142, 153-54 (2d Cir. 2009). Berry contends that we should review the issue de novo, 

because he raised the issue in his pro se submission. See United States v. Olmeda, 461 F.3d 271, 

278 (2d Cir. 2006). We need not determine which standard of review applies, because even on de 

novo review, Berry’s argument fails. 
8 

Id. at 104. 

Like the defendant in Aquart, Berry “was convicted of engaging in distinct crimes, 

one substantive and one conspiratorial, with different objectives: murder in the case of 

§848(e)(1)(A); a scheme to traffic drugs in the case of §846.” Id. at 102. Congress 

intended to provide for separate offenses and commensurate punishments for those 

offenses. Berry was charged with conduct in this case that was not a part of his prior drug 

conviction; the earlier drug offense simply did not encompass all of “the multilayered 

conduct, both as to time and to place, involved in this case.” Garrett, 471 U.S. at 789.5

We therefore conclude that Berry’s successive prosecutions under 21 U.S.C. §846 and 21 

U.S.C. §848(e)(1)(A) did not violate the Double Jeopardy Clause. 

We have considered all of Berry’s remaining arguments and find them to be 

without merit. The judgment of the District Court is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court

5 Of course, Berry could not have been prosecuted for the murder at the time of his prosecution 

for the drug conspiracy because the victim of the shooting had not yet died.