22-1011-cr

United States v. Samuels

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 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 January, two thousand twenty-four.

PRESENT: Guido Calabresi,

Steven J. Menashi,

Myrna Pérez, 

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 22-1011

KASHEEN SAMUELS, AKA Kash, AKA JR,

Defendant-Appellant.

____________________________________________
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For Appellee: CHRISTOPHER D. BRUMWELL, Assistant 

United States Attorney (Mary E. Bracewell 

and Stephen J. Ritchin, Assistant United 

States Attorneys, on the brief), for Damian 

Williams, United States Attorney for the 

Southern District of New York, New York, 

NY.

For Defendant-Appellant: JAMES B. SEPLOWITZ (Jason E. Foy, on the 

brief), Foy & Seplowitz LLC, Hackensack, 

NJ.

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

District of New York (Ramos, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED.

Kasheen Samuels appeals his conviction for armed robbery and drug 

trafficking on several grounds. For the reasons that follow, we affirm. We assume 

the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal.

I

Samuels first contends that Counts One through Three of the indictment—

which related to the robbery of Robert Bishun in April 2016—should not have been 

joined with Counts Four through Six, which related to the robbery of Justin Garcia 

in June 2017, or with Count Seven, which concerned a narcotics conspiracy. “We 

review the propriety of joinder de novo.” United States v. Shellef, 507 F.3d 82, 96 (2d 

Cir. 2007). Under Rule 8(a), “[t]he indictment or information may charge a 

defendant in separate counts with 2 or more offenses if the offenses charged—
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whether felonies or misdemeanors or both—are of the same or similar character, 

or are based on the same act or transaction, or are connected with or constitute 

parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). “Rule 8(a) is not limited 

to crimes of the ‘same’ character but also covers those of ‘similar’ character, which 

means ‘nearly corresponding; resembling in many respects; somewhat alike; 

having a general likeness.’” United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980)

(alteration omitted) (quoting Webster’s New International Dictionary (2d ed.)); see 

also United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (“Counts that have a 

sufficient logical connection to each other can be tried together, as can those where 

the same evidence may be used to prove each count.”) (internal quotation marks 

and citation omitted). 

The government makes strong arguments that the requirements of Rule 8(a) 

were met because of similarities between the offenses and overlap of evidence and 

witnesses. However, we need not decide whether joinder was proper because it 

was harmless. The evidence of related offenses would have been admissible in 

each case in any event.

Samuels argues that the district court should have granted his motion for a 

severance. We have explained that “[a] district court’s decision to deny severance 

is ‘virtually unreviewable’ and will be overturned only if a defendant can 

demonstrate prejudice ‘so severe that his conviction constituted a miscarriage of 

justice and that the denial of his motion constituted an abuse of discretion.’” United 

States v. Fazio, 770 F.3d 160, 165-66 (2d Cir. 2014) (quoting United States v. Stewart, 

433 F.3d 273, 314-15 (2d Cir. 2006)).

Samuels cannot make that showing. He suggests that “the jury was unable 

to evaluate each alleged crime independently.” Appellant’s Br. 13. But the district 

court instructed the jury to consider each charge separately, and the fact that 

Samuels was acquitted on two counts suggests that the jury followed that 

instruction. See Herring v. Meachum, 11 F.3d 374, 378 (2d Cir. 1993) (“Based on the 

instructions, the jury seems to have carefully evaluated the evidence on each count 
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separately; it convicted petitioner on two of the counts, but acquitted him on the 

other two.”).

Given the lack of lack of prejudice, we affirm.

II

Samuels next argues that the district court improperly admitted “highly 

prejudicial” evidence of “significant instances of prior uncharged crimes, prior 

incarceration and irrelevant gang affiliation.” Appellant’s Br. 13. “We review a 

decision on admission of evidence for abuse of discretion, which we will only find 

if the district court acted arbitrarily and irrationally. If the district court abused its 

discretion, we apply harmless error analysis.” United States v. Greer, 631 F.3d 608, 

614 (2d Cir. 2011) (internal quotation marks and citations omitted).

Under Rule 404(b), “[e]vidence of any other crime, wrong, or act is not 

admissible to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.” Fed. R. Evid. 

404(b)(1). However, “[t]he Second Circuit’s ‘inclusionary rule’ allows the 

admission of such evidence ‘for any purpose other than to show a defendant’s 

criminal propensity, as long as the evidence is relevant and satisfies the probativeprejudice balancing test of Rule 403 of the Federal Rules of Evidence.’” Greer, 631 

F.3d at 614 (quoting United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994)). Moreover, 

Rule 404(b) has been read to exclude from its scope “evidence of uncharged 

criminal activity ... if it arose out of the same transaction or series of transactions 

as the charged offense, if it is inextricably intertwined with the evidence regarding 

the charged offense, or if it is necessary to complete the story of the crime on trial.” 

United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (quoting United States v. 

Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997)).

Even if the district court did not expressly conduct the probative-prejudice 

balancing, we may do so on appeal. We conclude that the district court correctly 

admitted evidence of the three uncharged robberies because that evidence served 

“to inform the jury of the background of the conspiracy charged, to complete the 
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story of the crimes charged, and to help explain to the jury how the illegal 

relationship between participants in the crime developed.” United States v. Pitre, 

960 F.2d 1112, 1119 (2d Cir. 1992); see also United States v. Rosa, 11 F.3d 315, 334 (2d 

Cir. 1993) (“We have held repeatedly that it is within the court’s discretion to admit 

evidence of prior acts to inform the jury of the background of the conspiracy 

charged, in order to help explain how the illegal relationship between participants 

in the crime developed, or to explain the mutual trust that existed between 

coconspirators.”). Here, the three uncharged robberies involved overlapping 

personnel with the two charged robberies, and some occurred in close temporal 

proximity to the charged robberies.

Samuels also challenges the admission of evidence regarding his gang 

membership. But “courts routinely admit evidence of gang membership ... where 

the evidence is relevant for a proper purpose.” United States v. Williams, 930 F.3d 

44, 63 (2d Cir. 2019). In this case, evidence of Samuels’s membership in the Sex 

Money Murder gang was relevant background information that helped the jury 

understand Mingo’s testimony regarding two of the uncharged robberies; it was 

Samuels’s gang membership that gave him the opportunity to commit these two 

robberies. If evidence of the uncharged robberies was properly admitted, and it 

was, then evidence of Samuels’s gang membership was also properly admitted. In 

any event, knowing about Samuels’s gang membership could not have 

meaningfully prejudiced the jury because Samuels’s gang membership “did not 

involve conduct any more sensational or disturbing than the crimes with which

[Samuels was] charged.” United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019)

(quoting Pitre, 960 F.2d at 1120).

We cannot conclude that the challenged evidentiary rulings were “arbitrary 

and irrational” so as to amount to an abuse of discretion. United States v. Pipola, 83 

F.3d 556, 566 (2d Cir. 1996).
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III

Samuels also argues that the jury instructions regarding felony murder were 

defective. For purposes of 18 U.S.C. § 924(j), “Murder is the unlawful killing of a 

human being with malice aforethought.” 18 U.S.C. § 1111(a); see also 18 U.S.C. 

§ 2(a) (“Whoever commits an offense against the United States or aids, abets, 

counsels, commands, induces or procures its commission, is punishable as a 

principal.”). Samuels takes issue with the instruction that “[t]he government is not 

required to prove that the defendant, or the person that he aided and abetted, had 

any premeditated design or intent to kill the victim” and that the government 

needed only show that the death “occurred as a consequence of and while the 

defendant, or someone he aided and abetted, was knowingly and willfully 

committing the crime of robbery.” Tr. 1427.

The jury instruction was a straightforward application of the felony murder 

rule. “One way the government can demonstrate malice aforethought is by 

showing that the killing was committed in the commission of a robbery; under the 

traditional common law felony murder rule, the malice of the robbery satisfies 

murder’s malice requirement.” United States v. Thomas, 34 F.3d 44, 48 (2d Cir. 1994); 

see also United States v. Rivera, 679 F. App’x 51, 55 (2d Cir. 2017) (“[T]he malice of 

the [underlying] robbery satisfies murder’s malice requirement.”) (quoting 

Thomas, 34 F.3d at 48). That is, the government need not prove separately that the 

defendant had any particular mens rea as to the killing itself.

Contrary to Samuels’s suggestion, nothing in the Supreme Court’s decision 

in Rosemond v. United States, 572 U.S. 65 (2014), requires a different result. As we 

recognized in Rivera, Rosemond “did not enhance the knowledge required of an 

aider and abettor of § 924(j).” Rivera, 679 F. App’x at 55 (quoting United States v. 

Garcia-Ortiz, 792 F.3d 184, 190 (1st Cir. 2015)).

IV

Samuels additionally contends that the jury instructions constructively 

amended Count Six. “A constructive amendment occurs when the charge upon 
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which the defendant is tried differs significantly from the charge upon which the 

grand jury voted.” United States v. Dove, 884 F.3d 138, 146 (2d Cir. 2018). Such an 

amendment “occurs either where (1) an additional element, sufficient for 

conviction, is added, or (2) an element essential to the crime charged is altered.” 

Id. (citation omitted). A constructive amendment violates the requirement of the 

Fifth Amendment that “[n]o person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or indictment of a Grand 

Jury.” U.S. Const. amend. V; see Stirone v. United States, 361 U.S. 212, 215-16 (1960) 

(“[A]fter an indictment has been returned its charges may not be broadened 

through amendment except by the grand jury itself.”). “We review de novo the 

question of whether an indictment was constructively amended.” United States v. 

Daugerdas, 837 F.3d 212, 225 (2d Cir. 2016).

Count Six’s aiding-and-abetting charge regarding the murder of Torres 

stated that Samuels “did aid and abet the same, to wit, SAMUELS provided 

firearms for the gunpoint robbery of Victim-2 at the Motel, and in the course of 

that robbery one of the robbers shot and killed Torres.” App’x 40. At trial, 

however, the jury was instructed that it could consider other means of aiding and 

abetting, not just whether Samuels provided firearms. According to Samuels, this 

amounted to a constructive amendment because it “broadened the core of 

criminality in a manner that rendered it impossible for Mr. Samuels to be fairly 

informed of the charge against which he was defending.” Appellant’s Br. 34.

We have said that “an impermissible alteration of the charge must affect an 

essential element of the offense,” and “we have consistently permitted significant 

flexibility in proof, provided that the defendant was given notice of the core of 

criminality to be proven at trial.” United States v. Patino, 962 F.2d 263, 266 (2d Cir. 

1992) (internal quotation marks omitted). “The core of criminality of an offense 

involves the essence of a crime, in general terms; the particulars of how a 

defendant effected the crime falls outside that purview.” United States v. 

Korchevsky, 5 F.4th 279, 293 (2d Cir. 2021) (quoting United States v. D’Amelio, 683 
8

F.3d 412, 418 (2d Cir. 2012)). Moreover, the jury is free to consider “additional 

examples of the same conduct constituting the charged scheme.” Id. at 293.

Pursuant to these standards, we previously rejected a defendant’s 

constructive amendment claim that “his conviction rests on facts outside the ‘to 

wit’ clause of [an economic espionage] count, which alleges only his unauthorized 

copying, printing, and removal of ... confidential computer code” but not 

“continued unauthorized possession.” United States v. Agrawal, 726 F.3d 235, 259-

61 (2d Cir. 2013). In doing so, we explained that the difference in specific means 

did not alter the core of criminality: “the theft of trade secrets.” Id. at 260.

Here, Samuels’s provision of firearms was merely one part of “a single 

course of conduct” in which Samuels encouraged and facilitated the Garcia 

robbery. D’Amelio, 683 F.3d at 424. Samuels substantially assisted in the planning 

of the Garcia robbery and told Mingo and Martinez to return to his apartment 

“with the money, jewelry, and the weapons” afterward. Tr. 308. The provision of 

firearms did not involve the “essence” of the offense but only “the particulars of 

how [Samuels] effected the crime.” Korchevsky, 5 F.4th at 293. For that reason, the 

jury instructions did not effect a constructive amendment.

* * *

We have considered Samuels’s remaining arguments, which we conclude 

are without merit. For the foregoing reasons, we affirm the judgment of the district 

court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court