21-1684-cr (Con)

United States v. Polanco

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 26th day of January, two thousand twenty-three.

PRESENT:

ROBERT D. SACK,

JOSEPH F. BIANCO,

EUNICE C. LEE,

Circuit Judges.

_____________________________________

United States of America,

Appellee,

v. 21-1684-cr(CON)

Joshua Kemp, Rene Ruiz, AKA Lil’ Rene, AKA Nae 

Nae, Wilfredo Gonzalez, AKA Alfredo Gonzalez, 

AKA Freddy, Domingo Ramos, AKA Mingo, Amar 

Ahmed, AKA Omar, Zaie Escribano, AKA Zaieto, 

Carlos Osorio-Perez, Jaime Gonzalez, AKA Jimbo, 

Jordan Mcdonald, AKA Umi, Edward Nelson, AKA 

Boo, AKA Bugatti, Christopher Correa, AKA Chris, 

Mark Fernandez, AKA Mark, William Russell, AKA 

Billy, Dennis Pomales,

Defendants,

Jason Polanco, AKA Jin,
2

Defendant-Appellant.*

_________________________________

FOR APPELLEE: DANIELLE R. SASSOON, Assistant United 

States Attorney (Celia V. Cohen, Won S. 

Shin, 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: ROBERT J. BOYLE, Attorney at Law, New

York, NY.

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

New York (Engelmayer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jason Polanco appeals from an amended judgment of conviction,

entered on July 7, 2021, in connection with an alleged drug distribution conspiracy operating on 

Decatur Avenue in the Bronx, New York, and acts of violence allegedly committed by Polanco 

and other members of this drug crew, including the murder of Shawn Ross in 2014 and a series of 

armed robberies of commercial businesses in Manhattan and the Bronx. 

Following a jury trial, Polanco was found guilty of: (1) conspiracy to distribute one 

kilogram or more of heroin and a quantity of marijuana, in violation of 21 U.S.C. §§ 846, 

841(b)(1)(A) (Count One); (2) using a firearm to commit murder in relation to the narcotics

conspiracy, in violation of 18 U.S.C. § 924(j) (Count Two); (3) murder while engaged in the

narcotics conspiracy, in violation of 21 U.S.C. § 848(e)(1)(A) (Count Three); (4) robbery

conspiracy, in violation of 18 U.S.C. § 1951 (Count Four); (5) robbery, in violation of 18 U.S.C. 

* The Clerk of Court is respectfully directed to amend the caption as set forth above.
3

§ 1951 (Count Five); and (6) using, carrying and possessing firearms, which were brandished and

discharged, during and in relation to crimes of violence, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(iii) (Count Six). 1 Polanco was sentenced principally to 510 months’ 

imprisonment. 

On appeal, Polanco argues that: (1) the evidence was insufficient to find him guilty of 

Counts One, Two and Three; (2) the district court abused its discretion in admitting certain out-ofcourt statements as co-conspirator statements and statements against penal interest; (3) the district 

court abused its discretion in admitting evidence of other shootings that occurred prior to Ross’s 

murder; (4) the district court abused its discretion in declining to sever the robbery charges (Counts 

Four through Six) from the narcotics conspiracy and murder charges (Counts One through Three); 

and (5) the sentence of 510 months’ imprisonment was substantively unreasonable. We assume 

the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal, 

to which we refer only as necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

Polanco argues that the evidence at trial was insufficient to find him guilty of Counts One, 

Two, and Three of the indictment because the government failed to prove either that he was a 

member of a narcotics conspiracy to distribute heroin, or that he murdered Ross in furtherance of 

that conspiracy. Thus, Polanco contends that the district court erred in denying his motion for 

acquittal on these counts under Federal Rule of Criminal Procedure 29(c). 

1

 The numbering of the counts corresponds to those used in the trial indictment. 
4

We review a challenge to the sufficiency of the evidence de novo. See United States v. 

Laurent, 33 F.4th 63, 75 (2d Cir. 2022). However, a defendant who makes such a challenge

“bears a heavy burden, as the standard of review is exceedingly deferential.” United States v. 

Gahagen, 44 F.4th 99, 108 (2d Cir. 2022) (internal quotation marks and citation omitted). In 

reviewing whether a conviction is supported by sufficient evidence, “we are required to draw all 

permissible inferences in favor of the government and resolve all issues of credibility in favor of 

the jury’s verdict.” United States v. Willis, 14 F.4th 170, 181 (2d Cir. 2021). We must affirm 

the conviction if “any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” United States v. Connolly, 24 F.4th 821, 832 (2d Cir. 2022) (internal 

quotation marks and citation omitted). “The same standards apply to the district court’s 

consideration of an insufficiency argument in a motion under Fed. R. Crim. P. 29 for acquittal.” 

United States v. Hamilton, 334 F.3d 170, 179–80 (2d Cir. 2003).

As set forth below, we find Polanco’s challenge to the sufficiency of the evidence on 

Counts One, Two and Three to be without merit. We examine each of Polanco’s challenges in 

turn.

A. Count One: Narcotics Conspiracy Charge

Polanco argues that the evidence was insufficient to find him guilty on Count One for 

participating in a narcotics conspiracy to distribute one kilogram or more of heroin. In particular, 

although Polanco does not dispute the sufficiency of the evidence regarding his participation in 

marijuana sales on Decatur Avenue, he contends that there was insufficient evidence to link that 

activity to the heroin business operated by Rene Ruiz and Wilfredo Gonzalez on the same block, 

such that Polanco could be held to be a member of the heroin conspiracy. We disagree.
5

A defendant is guilty of a conspiracy if he “knew of the existence of the scheme alleged in 

the indictment and knowingly joined and participated in it.” United States v. Ogando, 547 F.3d 

102, 107 (2d Cir. 2008). To be guilty of participating in a narcotics conspiracy, “a defendant 

need not be actively engaged in the distribution of drugs.” United States v. Santos, 541 F.3d 63, 

68 (2d Cir. 2008) (internal quotation marks and citation omitted); see also Ocasio v. United States, 

578 U.S. 282, 288 (2016) (“[A] specific intent to distribute drugs oneself is not required to secure 

a conviction for participating in a drug-trafficking conspiracy.” (internal quotation marks and 

citation omitted)). Instead, a defendant may participate in a narcotics conspiracy by “performing 

ancillary functions such as . . . enforcing discipline [and] chastising rivals,” Santos, 541 F.3d at 72

(alteration in original) (internal quotation marks and citation omitted), or using “violence to secure 

the organization’s drug turf,” United States v. Estrada, 320 F.3d 173, 183 (2d Cir. 2003) (internal 

quotation marks and citation omitted). The evidence necessary to link a defendant to the 

conspiracy “need not be overwhelming and may be circumstantial in nature.” United States v. 

Gaskin, 364 F.3d 438, 460 (2d Cir. 2004).

Drawing all permissible inferences in the government’s favor, we find that the evidence at 

trial established that Polanco knowingly participated in the heroin conspiracy charged in Count 

One, even in the absence of any evidence that he sold heroin. Specifically, the evidence at trial 

showed that, in 2014, Polanco sold marijuana on a block on Decatur Avenue in the Bronx (the 

“block”) that was controlled by two heroin dealers: Gonzalez and Ruiz. Gonzalez and Ruiz 

controlled who could sell drugs on the block, including who could sell marijuana, and defended 

their territory from other drug dealers. Polanco sold marijuana primarily in front of Decatur Deli, 

alongside drug dealers who sold heroin for Gonzalez and Ruiz. The evidence also established
6

that Polanco and other dealers selling heroin on the block assisted one another in various ways, 

including by referring customers and alerting each other to the presence of law enforcement by 

yelling the code word “snag.” For instance, one heroin dealer who operated on the block referred

marijuana customers to Polanco, while another dealer who sold heroin for Gonzalez and used 

violence to protect the block helped Polanco sell marijuana. Additionally, as a marijuana seller 

on the block, Polanco received Gonzalez’s protection: on one occasion, Gonzalez helped 

Polanco banish a rival marijuana dealer who had attempted to make sales out of Decatur Deli. As 

held by the district court, taken together, this collective evidence was sufficient to permit the jury 

to conclude that Polanco was embedded in an “integrated and singular conspiracy” run by 

Gonzalez and Ruiz, in which “the sales of the two types of narcotics [marijuana and heroin] were 

symbiotic.” App’x at 101. 

Moreover, a jury could rationally find that, as part of that symbiotic relationship, Polanco 

was an enforcer for the heroin conspiracy and advanced the objectives of that conspiracy by 

murdering Ross, a member of a rival drug crew (the “Gatta Crew”), following a series of violent 

disputes over drug territory between that crew and Gonzalez’s and Ruiz’s crew.2

 See Santos, 541 

F.3d at 69 (explaining that, “although a murder committed by the defendant in furtherance of a

drug conspiracy cannot itself satisfy the drug-offense element of section 848(e)(1)(A), it can, in 

appropriate circumstances, persuade the jury that the defendant was a member of the drug 

conspiracy in furtherance of which the killing was committed”). The government presented 

2

 On appeal, Polanco does not argue that the evidence at trial was insufficient to establish that he 

committed the murder. He only argues that the evidence was insufficient to establish that the murder was 

committed in furtherance of a narcotics conspiracy, rather than as a result of a personal dispute.
7

evidence that Polanco murdered Ross at Gonzalez’s direction and with a gun supplied by Gonzalez

on the heels of two other shootings involving the Gatta Crew—Ruiz’s shooting of the leader of the 

Gatta Crew and the Gatta Crew’s subsequent shooting of Ruiz’s drug manager. Indeed, there 

was evidence that the gun Gonzalez provided to Polanco for the murder was the same gun that 

Gonzalez kept to use in the event of another confrontation with the Gatta Crew. See United States

v. Aleskerova, 300 F.3d 286, 293 (2d Cir. 2002) (finding that the conspiracy conviction was 

supported by evidence that the defendant “possessed items important to the conspiracy”). In 

short, on this trial record, we agree with the district court’s conclusion that a rational jury could 

conclude that Polanco’s murder of Ross “was at once an act of affirmative participation in the 

narcotics conspiracy headed by [Gonzalez] and [Ruiz] that included a heroin distribution object, 

and confirmation of Polanco’s membership in that conspiracy.” App’x at 101–02; see Santos, 

541 F.3d at 73 (“That [the defendant] did not participate in the narcotics conspiracy in some way 

other than carrying out the murders does not undermine the sufficiency of the evidence that he was 

a co-conspirator.”). 

Accordingly, the district court did not err in denying Polanco’s motion for acquittal on the 

narcotics conspiracy charged in Count One.

B. Counts Two and Three: Murder Charges under 18 U.S.C. § 924(j) and 

21 U.S.C. § 848(e)(1)(A)

Polanco also argues that there was insufficient evidence to support his convictions on 

Counts Two and Three in connection with Ross’s murder. He asserts that the murder was not 

related to the charged narcotics conspiracy, as required under 18 U.S.C. § 924(j) and 21 U.S.C. 

§ 848(e)(1)(A), but resulted from a personal dispute, and that it was not reasonably foreseeable to 
8

him that the charged conspiracy involved more than one kilogram of heroin, as required under 21 

U.S.C. § 841(b)(1)(A).

Section 924(j) authorizes the death penalty or life imprisonment for murder “through the 

use of a firearm” committed “in the course of” a violation of 18 U.S.C. § 924(c). 18 U.S.C. 

§ 924(j). Section 924(c), in turn, proscribes the use or possession of a firearm “in relation to any 

crime of violence or drug trafficking crime.” Id. § 924(c)(1)(A). Accordingly, to convict a 

defendant under Section 924(j), the government must prove that he used or carried a firearm in 

relation to a drug trafficking offense and used that firearm to murder the victim. See United 

States v. Capers, 20 F.4th 105, 115 (2d Cir. 2021); United States v. Wallace, 447 F.3d 184, 187 

(2d Cir. 2006). Similarly, a conviction under Section 848(e)(1)(A) requires “a meaningful 

connection between the killing and the drug offense.” Santos, 541 F.3d at 69. To establish that 

connection, “the government need only prove beyond a reasonable doubt that one motive for the 

killing . . . was related to the drug conspiracy.” United States v. Desinor, 525 F.3d 193, 202 (2d 

Cir. 2008) (emphasis in original). “The government has no burden to establish that a drug-related 

motive was the sole purpose, the primary purpose, or even that it was equally as important as any 

non-drug-related purpose, as long as it was one purpose.” Id.

As discussed above, the government introduced evidence to establish that Polanco 

murdered Ross at Gonzalez’s direction because of the ongoing drug rivalry between Gonzalez’s 

and Ruiz’s crew and the Gatta Crew, of which Ross was a member. Based on that evidence, the 

jury could rationally infer that at least one motive for Ross’s murder was connected to the narcotics 

conspiracy, even if Polanco also had a personal dispute with Ross. See, e.g., United States v. 

Nina, 734 F. App’x 27, 31–32 (2d Cir. 2018) (summary order) (affirming Section 924(j) and 
9

Section 848(e)(1)(A) convictions where “a months-long territorial dispute” between rival drug 

crews suggested that “the motive for the shooting was at least partially a Crew conflict, not merely 

a personal conflict”); Capers, 20 F.4th at 115 (affirming a Section 924(j) conviction where the 

murder “was motivated by an effort to preserve the [defendant’s crew’s] reputation and its ability 

to protect and extend its drug-dealing territory”). 

There was also sufficient evidence presented at trial for a rational juror to find that Polanco 

knew the charged conspiracy involved one kilogram or more of heroin, as required under Section 

848(e)(1)(A). An enhanced penalty under Section 841(b)(1)(A) requires proof that “it was either 

known or reasonably foreseeable to the defendant that the conspiracy involved the drug type and 

quantity charged.” Santos, 541 F.3d at 70–71. Here, the trial evidence established that the 

narcotics conspiracy involved at least one kilogram of heroin because Gonzalez distributed well 

over that amount in a single year. Based on that evidence—together with the evidence 

establishing that Polanco sold drugs on the block next to drug dealers who sold heroin for Gonzalez 

and Ruiz, and that some of the heroin dealers referred Polanco customers—the jury could 

rationally find that Polanco was aware of the large quantities of heroin being distributed. We see 

no reason to disturb the jury’s findings based on these permissible inferences. See United States 

v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001) (“[T]he task of choosing among competing, 

permissible inferences is for the [jury], not for the reviewing court.”).

In sum, the evidence was sufficient to support Polanco’s conviction on Counts Two and 

Three, and the district court did not err in denying his motion for acquittal on those counts.
10

II. Evidentiary Rulings

Next, Polanco argues that the district court erred in admitting (1) Gonzalez’s and Ruiz’s

out-of-court statements, and (2) evidence of shootings that occurred between Gonzalez’s and 

Ruiz’s crew and the Gatta Crew prior to Ross’s murder.

We review a district court’s decision to admit or exclude evidence for abuse of discretion,

and we will reverse such a ruling only when it is “manifestly erroneous” or “arbitrary and 

irrational.” United States v. Dawkins, 999 F.3d 767, 788 (2d Cir. 2021) (internal quotation marks 

and citation omitted). Even when a district court’s evidentiary ruling is manifestly erroneous, we 

will not grant a new trial if the error was harmless. United States v. Siddiqui, 699 F.3d 690, 702 

(2d Cir. 2012). 

As explained below, we find Polanco’s evidentiary challenges to be without merit.

A. Admission of Gonzalez’s and Ruiz’s Out-of-Court Statements

Polanco argues that the district court abused its discretion in admitting Gonzalez’s and 

Ruiz’s out-of-court statements as co-conspirator statements and statements against penal interest. 

Specifically, Polanco challenges the district court’s admission of Gonzalez’s statements to

cooperating witnesses Christopher Correa and Joshua Kemp about Polanco’s role in Ross’s 

murder. Correa, who sold heroin for Gonzalez, testified that after Polanco’s confrontation with 

Ross, Gonzalez encouraged Polanco to “[h]andle it” and “[d]o what you got to do.” Tr. 169. 

Kemp, who also sold heroin for Gonzalez, similarly testified that Gonzalez told Polanco that “if 

[he] feel[s] some type of way” about Ross’s behavior, “then [he] can do something about it.” Tr. 

407. Kemp further testified that Gonzalez gave Polanco a gun to use in the murder. Finally, 

Polanco challenges the admission of Ruiz’s statements to Correa and Joseph Thristino, another 
11

cooperating witness, in which Ruiz admitted that he shot the leader of the Gatta Crew, James 

Brown, also known as Gatta, and that the Gatta Crew retaliated by killing Ruiz’s drug manager.

Under Rule 801(d)(2)(E), a statement is “not hearsay” if the statement is “offered against 

an opposing party” and “was made by the party’s coconspirator during and in furtherance of the 

conspiracy.” Fed. R. Evid. 801(d)(2)(E). Accordingly, a district court may admit a statement 

under this rule if it finds, by a preponderance of the evidence, “(a) that there was a conspiracy, (b) 

that its members included the declarant and the party against whom the statement is offered, and 

(c) that the statement was made during the course of and in furtherance of the conspiracy.” 

United States v. Gupta, 747 F.3d 111, 123 (2d Cir. 2014) (internal quotation marks and citation 

omitted). Statements between co-conspirators that “provide reassurance, serve to maintain trust 

and cohesiveness among them, or inform each other of the current status of the conspiracy” are in 

furtherance of the conspiracy. United States v. Simmons, 923 F.2d 934, 945 (2d Cir. 1991)

(internal quotation marks and citation omitted).

We find no abuse of discretion in the district court’s decision to admit out-of-court 

statements by Gonzalez to cooperating witnesses Correa and Kemp, and by Ruiz to cooperating 

witness Joseph Thristino, as co-conspirator statements under Rule 801(d)(2)(E). 3 For

substantially the same reasons we discussed in connection with the sufficiency of the evidence 

challenges, there was sufficient evidence to demonstrate that Gonzalez and Ruiz, who controlled 

drug sales on the block, and Polanco, who sold marijuana on the block, were all involved in the 

3

 Because we conclude that these statements were admissible under Rule 801(d)(2)(E), we do not address 

the district court’s alternative ruling that such statements also were admissible as statements against penal 

interest under Rule 804(b)(3).
12

same narcotics conspiracy. Similarly, there was ample evidence to establish that Correa, Kemp, 

and Thristino, each of whom sold heroin for Gonzalez and Ruiz, were part of the same conspiracy. 

Nor did the district court err in finding that Gonzalez’s statements about Ross’s murder, both 

during and after the fact, were in furtherance of the conspiracy because they served to update coconspirators about the status of the conspiracy and alert them “about the risk of violence from a 

turf war” and the need to “defend[] the narcotics conspiracy’s territory.” App’x at 75; see, e.g.,

United States v. Diaz, 176 F.3d 52, 85 (2d Cir. 1999) (finding that statements that “attempted to 

apprise [the listener] of the progress or status of the conspiracy, to facilitate and encourage his 

assistance, and to foster the cohesiveness of the conspiracy” were in furtherance of the conspiracy). 

Similarly, Ruiz’s statements to Correa and Thristino about shootings between their crew and the

rival Gatta Crew were in furtherance of the conspiracy because they served the same purpose—

alerting his co-conspirators about a series of violent disputes that occurred on their drug territory. 

Furthermore, the district court acted within its discretion in finding that Ruiz’s out-of-court 

statement to Correa about Ruiz’s shooting of Gatta was admissible as a statement against penal 

interest. Under Rule 804(b)(3), a district court may admit a statement against a declarant’s penal 

interest if that declarant is unavailable as a witness. Fed. R. Evid. 804(b)(3). To admit a 

statement under this rule, a district court must determine that “a reasonable person in the 

declarant’s shoes would perceive the statement as detrimental to his or her own penal interest,”

and that the statement is supported by “corroborating circumstances” that clearly indicate its 

trustworthiness. Gupta, 747 F.3d at 127 (internal quotation marks and citations omitted); see 

also Fed. R. Evid. 804(b)(3). Here, Ruiz’s admission to Correa about his attempted murder of

Gatta was clearly admissible under Rule 804(b)(3) because the statement was detrimental to his 
13

penal interest and supported by the fact that he later pled guilty to the attempted murder charge. 

Accordingly, there was no abuse of discretion in the district court’s admission of 

Gonzalez’s and Ruiz’s out-of-court statements.

B. Admission of Evidence Regarding Other Shootings

Polanco also challenges the district court’s admission of testimony regarding two acts of 

violence that occurred between Gonzalez’s and Ruiz’s crew and the Gatta Crew shortly before 

Ross’s murder—Ruiz’s shooting of Gatta and the Gatta Crew’s subsequent shooting of Ruiz’s 

drug manager. 

Although “[e]vidence of any other crime, wrong, or act” cannot be used to show a person’s 

bad character, it is admissible to prove, among other things, motive, opportunity, intent, or

knowledge. Fed. R. Evid. 404(b)(1), (2). Thus, “such evidence is admissible unless it is 

introduced for the sole purpose of showing the defendant’s bad character, or unless it is overly 

prejudicial under Fed. R. Evid. 403 or not relevant under Fed. R. Evid. 402.” United States v. 

Pascarella, 84 F.3d 61, 69 (2d Cir. 1996) (internal citation omitted). Moreover, evidence of other 

crimes or acts can be admitted without reference to Rule 404(b) if that conduct “arose out of the 

same transaction or series of transactions as the charged offense,” “is inextricably intertwined with 

the evidence regarding the charged offense,” or “is necessary to complete the story of the crime 

on trial.” United States v. Robinson, 702 F.3d 22, 37 (2d Cir. 2012) (internal quotation marks

and citation omitted). “When the indictment contains a conspiracy charge, uncharged acts may 

be admissible as direct evidence of the conspiracy itself.” United States v. Thai, 29 F.3d 785, 

812 (2d Cir. 1994). Any evidence admitted for these additional purposes must likewise survive 

the Rule 403 weighing of its probative value against the danger of unfair prejudice. See
14

Robinson, 702 F.3d at 37 & n.15. 

We find no abuse of discretion in the district court’s decision to admit evidence of the 

shootings that preceded Ross’s murder. The evidence of violent disputes involving the Gatta 

Crew was admissible to provide the necessary context for the charged crimes. More specifically, 

the evidence showed that the murder was not an isolated incident, but the culmination of a turf war 

between Gonzalez’s and Ruiz’s crew and the Gatta Crew, and suggested that Polanco shot Ross, a 

member of the Gatta Crew, to protect the block where he sold marijuana from further interference

by that crew. Thus, that evidence was “inextricably intertwined with the evidence regarding the 

charged offense,” and “necessary to complete the story of the crime on trial.” Robinson, 702 F.3d 

at 37 (internal quotation marks and citation omitted). Furthermore, the evidence of the shootings

was probative of the existence of the narcotics conspiracy because it showed that the coconspirators defended the reputation and territory of their drug operation against drug rivals 

through violence, thus enabling that operation to continue. See, e.g., Santos, 541 F.3d at 69 

(“[A]cts—including killings—may and often do serve as powerful circumstantial evidence that the 

charged conspiracy existed and that the actor joined it.”); Estrada, 320 F.3d at 183 (stating that 

“the use of violence to secure the organization’s drug turf” can be considered an overt act by 

participants in a narcotics conspiracy). 

Additionally, the district court conducted the requisite balancing under Rule 403 and 

properly concluded that any unfair prejudice from this evidence did not substantially outweigh its 

probative value because Polanco did not participate in the prior shootings, and the evidence was 

therefore unlikely to inflame the jury against him. The district court noted that “the preceding

shootings will not be more sensational or disturbing than the evidence the jury will already 
15

unavoidably hear” regarding Polanco’s murder of Ross, whom Polanco shot ten times in the middle 

of the block in front of a bodega. App’x at 63. The district court also minimized any potential 

prejudice arising from the admission of this evidence by proposing a limiting jury instruction 

explaining that the earlier shootings would be introduced solely to provide context for the charges 

in this case and explain the circumstances under which Ross’s murder occurred. 

Accordingly, the district court did not abuse its discretion in admitting evidence of the 

shootings that preceded Ross’s murder.

III. Severance

Polanco contends that the district court erred in denying his pre-trial motion to sever the

narcotics conspiracy and murder counts from the robbery counts under Federal Rules of Criminal 

Procedure 8(a) and 14. He also challenges the denial of his post-trial motion for a new trial based 

on prejudicial retroactive misjoinder. We find these challenges to be without merit.

Under Rule 8(a), counts may be joined in the same indictment when they “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). “Joinder is proper where the same 

evidence may be used to prove each count, or if the counts have a sufficient logical connection.” 

United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (internal quotation marks and citations

omitted). We review a challenge to the district court’s joinder of counts under Rule 8(a) de novo

and “conduct a twofold inquiry: whether joinder of the counts was proper, and if not, whether 

misjoinder was prejudicial to the defendant.” United States v. Litwok, 678 F.3d 208, 216 (2d Cir. 

2012) (internal quotation marks and citation omitted).
16

Even if joinder is proper under Rule 8(a), the district court retains discretion under Rule 

14(a) to sever the counts and order separate trials to prevent prejudice to the defendant. Fed. R.

Crim. P. 14(a); see Page, 657 F.3d at 129. To establish that severance is warranted under Rule 

14(a), “the defendant must show not simply some prejudice but substantial prejudice.” United 

States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) (emphasis in original) (internal quotation 

marks and citation omitted). Because Rules 8 and 14 were “designed to promote economy and 

efficiency and to avoid a multiplicity of trials, so long as these objectives can be achieved without 

substantial prejudice” to the defendant, “less drastic measures than severance, such as limiting 

instructions, often will suffice to cure any risk of prejudice and permit joinder.” Page, 657 F.3d 

at 129 (alteration adopted) (internal quotation marks and citation omitted). Accordingly, we 

review a denial of a motion to sever counts under Rule 14 for abuse of discretion. Id.; Sampson, 

385 F.3d at 190. 

We find no Rule 8(a) error in the district court’s denial of Polanco’s pre-trial severance 

motion because the narcotics conspiracy and murder counts shared a sufficient evidentiary 

connection with the robbery counts and reflected the continuation of criminal conduct by a 

common group of co-conspirators. Specifically, the evidence at trial established that Polanco 

committed the robberies together with Gonzalez, Kemp, Thristino, and other individuals who 

participated in the narcotics conspiracy and sold drugs on the block for Gonzalez and Ruiz. The 

government also introduced evidence suggesting that Polanco committed the robberies with these

co-conspirators to raise additional money because drug sales on the block had declined following 

the shootings involving the Gatta Crew. The evidence regarding the disruption of drug trade on 

the block helped explain why Polanco and his co-conspirators turned to robberies to get money, 
17

while the evidence of their preexisting criminal relationship provided important context for the 

robberies. Additionally, the testimony of several government witnesses, including Kemp and 

Thristino, was necessary to prove the narcotics conspiracy, murder, and robbery counts. For 

these reasons, we agree with the district court’s conclusion the counts shared significant “factual 

and evidentiary overlap,” and thus trying them together would be proper under Rule 8(a). App’x

at 55.

Additionally, the district court did not abuse its discretion in concluding that joinder was 

proper because Polanco failed to show that it caused him substantial prejudice as required under 

Rule 14. Polanco argues that he was prejudiced because evidence of the armed robberies 

influenced the jury’s decision on the narcotics conspiracy and murder counts—namely, it 

encouraged the jury to make an impermissible inference that he was a violent individual with

criminal propensity to commit murder. However, as the district court observed, even though the 

narcotics conspiracy and murder charges were the most serious offenses in the indictment, they 

were “not of such wildly disparate character [as compared to the armed robbery charges] as to 

warrant a finding of substantial prejudice.” Id. Furthermore, even if the counts had been 

severed, evidence of the robberies would have been relevant and admissible in a trial on the 

narcotics and murder charges because the fact that Polanco committed robberies with the same 

individuals who were also involved in the narcotics conspiracy was proof of their criminal 

relationship and provided important context for the murder charges. For example, during the 

period that Kemp and Polanco were committing robberies together, Polanco confessed to Kemp 

that he murdered Ross. Their shared history of criminal activity would have provided context for 

the jury to understand why Polanco trusted Kemp and confided in him. In addition, the district 
18

court minimized any potential prejudice to Polanco that might arise from the joinder by directing 

the jury to consider his guilt as to each count separately and return a separate verdict as to each 

count. The district court also instructed the jurors that they may not consider the evidence of 

Polanco’s prior robbery “conviction as evidence of [his] propensity to commit any crimes for 

which [he] is now on trial.” Tr. at 550–51. Given that evidence of the robberies was admissible 

to prove the existence of a narcotics conspiracy, and the district court gave a limiting instruction 

to the jury to consider the counts separately, we find no abuse of discretion in the district court’s

denial of Polanco’s motion to sever under Rule 14. See Page, 657 F.3d at 130–31 (finding that 

joinder of narcotics and gun counts was proper because there was a sufficient logical connection 

between the charges, they required much of the same evidence, and the district court minimized 

the danger of unfair prejudice by giving a limiting instruction to the jury).

Finally, Polanco argues that, even if joinder was initially proper, the district court should 

have granted a new trial on the ground of retroactive misjoinder because the evidence at trial failed 

to establish a link between the robberies and the narcotics conspiracy. Retroactive misjoinder 

“refers to circumstances in which the joinder of multiple counts was proper initially, but later 

developments,” such as the “dismissal [or reversal] of some counts . . . render the initial joinder

improper.” Hamilton, 334 F.3d at 181 (internal quotation marks and citation omitted). “[T]o

be entitled to a new trial on the ground of retroactive misjoinder, a defendant must show 

compelling prejudice.” Id. at 181–82 (internal quotation marks and citations omitted). Here, as 

discussed above, Polanco’s claim that the government ultimately failed to establish a link between 

the narcotics conspiracy and robbery counts is belied by the extensive evidence introduced at trial 
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that showed significant connection between these charges. Thus, we are similarly unpersuaded 

by Polanco’s claim of retroactive misjoinder. 

Accordingly, we find that the district court did not err in denying Polanco’s motions to 

sever the narcotics-related and robbery counts.

IV. Sentencing

Finally, Polanco argues that his sentence of 510 months’ (or 42.5 years’) imprisonment, 

which was below the United States Sentencing Guidelines advisory range of life imprisonment to 

be followed by a mandatory consecutive 15-year sentence, was substantively unreasonable. In 

particular, he contends that the district court abused its discretion by imposing an “unreasonabl[y]

harsh” sentence, especially in light of the violence to which Polanco was subjected as a child. 

Appellant’s Br. at 60.

We review the substantive reasonableness of the sentence imposed under a deferential 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In doing so, “we 

will not substitute our own judgment for the district court’s on the question of what is sufficient to 

meet the [18 U.S.C.] § 3553(a) considerations in any particular case.” United States v. Cavera, 

550 F.3d 180, 189 (2d Cir. 2008) (en banc). “We will instead set aside a district court’s 

substantive determination only in exceptional cases where the trial court’s decision cannot be 

located within the range of permissible decisions.” Id. (emphasis omitted) (internal quotation 

marks and citation omitted). In other words, a sentence is substantively unreasonable only if it

is “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United 

States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). We have also noted that, under this standard, 
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it is particularly “difficult to find that a below-Guidelines sentence is unreasonable.” United 

States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (per curiam).

Here, we find no basis to conclude that Polanco’s sentence was substantively unreasonable. 

The district court observed, given the nature of Polanco’s crimes, which included a “heinous” 

murder committed in furtherance of “a violent gang’s drug trafficking” conspiracy, App’x at 156, 

and several “horrific” robberies that “terrorized perhaps a couple of dozen innocent people,” App’x

at 159, that imposing a life sentence would be consistent with Section 3553(a)’s guidance that the 

punishment should fit the seriousness of the offense and promote respect for the law. See 18 

U.S.C. § 3553(a)(1)–(2). However, the district court ultimately decided to impose a belowGuidelines sentence after considering Polanco’s mitigating factors under Section 3553(a)(1)

relating to Polanco’s personal history and characteristics, including his difficult, abusive

upbringing, his age at the time of the offenses, his letter to the district court in which he expressed 

remorse, as well as letters from his family members. See id. § 3553(a)(1). The district court 

also accounted for the fact that Polanco had already spent 15 months in harsh conditions of 

confinement because of the COVID-19 pandemic. After carefully weighing these and other 

Section 3553(a) considerations, the district court imposed a sentence of 42.5 years’ imprisonment, 

reasoning that, although the mandatory minimum sentence of 35 years’ imprisonment was “not 

long enough to reflect the gravity of [Polanco’s] crimes,” this sentence, rather than a life sentence, 

was sufficient to reflect all of the Section 3553(a) factors. App’x at 179. Given the factors 

identified by the district court and the record presented at sentencing, this below-Guidelines 

sentence was not “shockingly high,” Rigas, 583 F.3d at 123, but rather was “within the range of 
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permissible decisions,” Cavera, 550 F.3d at 189 (internal quotation marks and citation omitted). 

Therefore, we find that the sentence was substantively reasonable.

* * *

We have considered Polanco’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court