United States v. Blanco

    23-6378(Con), 23-6401(Con)
    United States v. Blanco



                         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 10th day of November, two thousand twenty-five.

    PRESENT:
                AMALYA L. KEARSE,
                DENNIS JACOBS,
                MARIA ARAÚJO KAHN,
                      Circuit Judges.
    _____________________________________

    UNITED STATES OF AMERICA,

                             Appellee,
                    v.                                              Nos. 23-6378(Con), 23-6401
                                                                    (Con)
    ANTHONY ZOTTOLA, SR., HIMEN ROSS,
    AKA ACE, AKA A BOGGIE,

                             Defendants-Appellants, *




    *
        The Clerk of Court is respectfully directed to amend the case caption as indicated above.
BUSHAWN       SHELTON,      AKA    SHELZ,
ARTHUR CODNER, AKA FEDDI, AKA
FEDDIE, AKA FETTY, AKA FEDDI BOSSGOD,
AKA FETTY BOSS, AKA SCARY, KALIK
MCFARLANE, AKA DOTTKOM, AKA DOT,
ALFRED LOPEZ, AKA ALOE, BRANDEN
PETERSON, AKA B, AKA MUR B, JULIAN
SNIPE, AKA BIZ, AKA BIZZIE B, AKA
BIZZZY, JASON CUMMINGS, AKA THE HAT,
AKA STACKS,
                  Defendants.
_____________________________________

FOR DEFENDANT-APPELLANT ZOTTOLA:                    THEODORE S. GREEN, Green &
                                                    Willstatter, White Plains, NY.

FOR DEFENDANT-APPELLANT ROSS:                       LAWRENCE D. GERZOG, The Fast
                                                    Law Firm, New York, NY.

FOR APPELLEE:                                       EMILY J. DEAN, Assistant United
                                                    States Attorney (Amy Busa, Kayla
                                                    C. Bensing, Devon E. Lash, Andrew
                                                    M. Roddin, Assistant United States
                                                    Attorneys, on the brief), for John J.
                                                    Durham, United States Attorney for
                                                    the Eastern District of New York,
                                                    NY.



      Appeals from judgments of the United States District Court for the Eastern District

of New York (Hector Gonzalez, J.).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of the district court are AFFIRMED.

      Defendants-Appellants Anthony Zottola, Sr. (“Zottola”) and Himen Ross (“Ross”)

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were convicted upon a jury verdict of murder-for-hire conspiracy and murder-for-hire,

in violation of 18 U.S.C. § 1958(a), unlawful use and possession of firearms, in violation

of 18 U.S.C. § 924(c)(1)(A)(iii), and causing death through use of a firearm, in violation of

18 U.S.C. § 924(j)(1).   Each was sentenced principally to concurrent terms of life

imprisonment. Zottola and Ross now challenge their judgments of conviction in this

consolidated appeal. 1

                                     BACKGROUND

       The evidence at trial detailed that, over the course of a year, Zottola hired hitmen,

including Ross, to murder his father, Sylvester Zottola (“Sylvester”), and older brother,

Salvatore Zottola (“Salvatore”), in order to take control of the family’s real estate

business. Beginning in 2017, Zottola, Ross, and their co-conspirators commenced a series

of attacks on Sylvester and Salvatore, culminating in the July 11, 2018 near-fatal shooting

of Salvatore and the October 4, 2018 murder of Sylvester. The evidence demonstrated

that Ross, who shot both victims, was paid by Zottola through a fellow co-conspirator,

Bushawn Shelton (“Shelton”).



1 Defendant Herman Blanco pleaded guilty pursuant to a plea agreement and
subsequently sought to appeal his conviction and sentence. Blanco’s appellate counsel
has moved for permission to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), and the government has moved to dismiss Blanco’s appeal as barred by the
appellate waiver contained in the plea agreement. By separate order issued today, we
have resolved these motions. See United States v. Blanco, No. 22-3211 (2d Cir. Nov. 10,
2025).
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       On appeal, Zottola challenges certain evidentiary rulings, the use of an

anonymous and partially sequestered jury, and the court’s jury instructions regarding

the testimony of cooperating witnesses. Ross joins Zottola’s arguments and further

challenges the admission of certain references to gang affiliation. We assume the parties’

familiarity with the remaining facts, the procedural history, and the issues on appeal, to

which we refer only as necessary to explain our decision.

                                      DISCUSSION

       I.     EVIDENTIARY CHALLENGES

       “We review a trial court’s evidentiary rulings for an abuse of discretion and

recognize that district courts enjoy broad discretion over the admission of evidence.”

United States v. McDermott, 245 F.3d 133, 140 (2d Cir. 2001) (citation omitted). A district

court abuses its discretion if “its ruling is based on an erroneous view of the law or on a

clearly erroneous assessment of the evidence, or if its decision cannot be located within

the range of permissible decisions.” United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013).

       A.     Sylvester’s Proffer Statements

       Zottola first argues that the district court abused its discretion by excluding a

proffer statement Sylvester made to the FBI, which Zottola sought to admit as a statement

against penal interest pursuant to Federal Rule of Evidence 804(b)(3). Sylvester made

proffer statements to the FBI on July 12 and July 16, 2018, shortly after the failed attempt


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on Salvatore’s life. The court admitted Sylvester’s July 12 statement, but excluded the

July 16 statement as cumulative and outside the hearsay exception for statements against

penal interest. In both statements, Sylvester acknowledged that he operated an illicit

gambling business and described a conflict with Albanian organized crime figures. The

excluded July 16 statement, however, contained the additional information that Sylvester

had stopped making protection payments to his mafia protector, Richard DeLuca, due to

DeLuca’s inability to protect his interests.

       “Federal Rule of Evidence 804(b)(3) permits the admission of a statement against

an unavailable declarant’s penal interest if the statement, when made, had so great a

tendency to expose the declarant to criminal liability that a reasonable person in his

position would have made the statement only if he believed it to be true, and

corroborating evidence clearly indicates the trustworthiness of the statement.” United

States v. Dupree, 870 F.3d 62, 80 (2d Cir. 2017).

       The district court acted within its discretion in excluding Sylvester’s July 16 proffer

statement as it was not self-inculpatory. Rule 804(b)(3) “does not allow admission of non-

self-inculpatory statements, even if they are made within a broader narrative that is

generally self-inculpatory.” Williamson v. United States, 512 U.S. 594, 600–01 (1994). Here,

the precluded statement refers to Sylvester’s ceasing protection payments to the mafia.

As the district court correctly noted, “if you’re paying protection money, you’re a victim


                                               5
and not a perpetrator of a crime.” Joint App’x at 350. As to the remaining portion of the

July 16 statement, the district court properly excluded it as cumulative of the evidence

already in the record.

       Even assuming, arguendo, that the court improperly excluded the July 16

statement, any error was harmless. Because the district court admitted the July 12

statement, the defense was free to present its alternative perpetrator theory, including by

presenting evidence that Sylvester had a conflict with the Albanian mafia and that his

mafia connections had refused to help. The only new information contained in the July

16 statement was that Sylvester had stopped paying DeLuca protection money. This

additional statement, however, was not probative of motive because Salvatore and

Sylvester were attacked multiple times prior to when protection payments stopped,

undermining Zottola’s theory that the July and October shootings were retribution by the

mafia. Accordingly, any possible error in excluding the July 16 statement was harmless.

       B.     Testimony of Defense Witness-1

       The trial court also acted well within its discretion to exclude Defense Witness-1’s

(“DW-1”) unreliable and uncorroborated testimony, which Zottola likewise sought to

admit pursuant to Rule 804(b)(3). DW-1 was purportedly incarcerated with Zottola’s co-

defendant, Jason Cummings. Cummings allegedly told DW-1 that another co-defendant,

Shelton, reported to Cummings that Sylvester’s murder was motivated by a mafia plot to


                                            6
take control of Sylvester’s construction companies. Cummings also purportedly said that

Salvatore was shot with a “.38 caliber pistol because this weapon does not leave shell

casings.” Joint App’x at 176-A.

       “To evaluate whether a statement is sufficiently trustworthy [under Rule

804(b)(3)], we look to evidence that corroborates both the declarant’s trustworthiness and

the truth of the statement.” United States v. Lumpkin, 192 F.3d 280, 287 (2d Cir. 1999).

Here, DW-1’s statements materially contradicted the trial evidence. For example, the

NYPD recovered shell casings from the scene of Salvatore’s shooting, and video

surveillance confirmed that the assailant used a semi-automatic firearm, which leaves

shell casings. Moreover, the identity of the declarant who supposedly told Shelton that

Sylvester’s murder was ordered by the mafia—the key testimony for Zottola’s defense—

was unknown, and thus impossible to corroborate. Accordingly, we affirm the trial

court’s exclusion of this unreliable and uncorroborated hearsay.

        C.    Salvatore’s Prior Consistent Statements

       The trial court did not abuse its discretion in admitting portions of several

recorded calls between Salvatore and an incarcerated mafia figure, Vincent Basciano,

pursuant to Federal Rule of Evidence 801(d)(1)(B).          Rule 801(d)(1)(B) permits the

admission of a declarant-witness’s prior consistent statement if the statement is offered

“(i) to rebut an express or implied charge that the declarant recently fabricated it or acted


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from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the

declarant’s credibility as a witness when attacked on another ground.” Fed. R. Evid.

801(d)(1)(B); see United States v. Flores, 945 F.3d 687, 705–06 (2d Cir. 2019) (explaining that

Rule 801(d)(1)(B)(ii) allows for the substantive use of prior consistent statements to rebut

“defendants’ attacks on [the declarant]’s credibility and memory”).

       During Salvatore’s cross examination, defense counsel accused Salvatore of lying

to law enforcement and suggested that he knew or suspected that the mafia was involved

in the attacks against his family. The admitted portions of the calls between Salvatore

and Basciano describe Salvatore’s frequent visits to the police to assist with their

investigation and demonstrate that Basciano and Salvatore did not know who was behind

the attacks. These statements were thus “consistent with [Salvatore’s] testimony” and

were offered “to rehabilitate [Salvatore’s] credibility as a witness when attacked on

another ground.” Fed. R. Evid. 801(d)(1)(B).

       D.     Third-Party Text Messages

       The district court properly excluded certain text messages between Zottola’s co-

conspirator, Shelton, and unrelated third parties pertaining to an alleged conspiracy to

sell marijuana. Zottola sought to admit the Shelton-third-party texts under the rule of

completeness, arguing that the texts provided necessary context to previously admitted

contemporaneous texts between Zottola and Shelton. However, Rule 106 does not


                                              8
“require the admission of portions of a statement that are neither explanatory of nor

relevant to the admitted passages.” United States v. Kopp, 562 F.3d 141, 144 (2d Cir. 2009)

(internal quotation marks omitted). Here, the proffered texts do not explain or relate to

the communications between Shelton and Zottola. Rather, they are texts to different

people, on different topics, and do not use the same coded language as the Shelton-

Zottola texts. As the proffered texts bear no relevance to the communications between

Shelton and Zottola, the district court properly exercised its discretion in excluding them.

       E.     Zottola’s Post-Arrest Statements to Law Enforcement

       Pursuant to Rule 403, the district court did not abuse its discretion by admitting

Zottola’s spontaneous post-arrest statements to law enforcement. After his arrest, while

sitting in an FBI office for booking and processing, Zottola said to an agent, “I’m sorry

about my kids . . . one thing I can say is, I had a feeling you were coming. When I don’t

know, but I can thank you that it was after Father’s Day and it was after all my kids’

birthdays. Whatever it is.” Zottola claims that these statements were not made from a

guilty conscience, but referred to his expectation that he was the target of a grand jury

investigation. We are unpersuaded and find that these statements were probative of

Zottola’s consciousness of guilt and were not substantially outweighed by the risk of

unfair prejudice because Zottola remained free to argue that the jury should draw other,

non-incriminating inferences from the statements.        Cf. McDermott, 245 F.3d at 140


                                             9
(“[W]hen reviewing a Rule 403 ruling, we must review the evidence maximizing its

probative value and minimizing its prejudicial effect.” (internal quotation marks

omitted)). Therefore, we find no abuse of discretion in admitting these statements.

      F.     Evidence of Co-Conspirators’ Gang Membership

      The district court did not err by admitting testimony that Ross and other co-

conspirators were members of the same gang. Evidence of a defendant’s gang affiliations

may be admissible “to provide background for the events alleged in the indictment, or to

enable the jury to understand the complete story of the crimes charged, or how the illegal

relationship between coconspirators developed.” United States v. Reifler, 446 F.3d 65, 91–

92 (2d Cir. 2006) (internal quotation marks and citations omitted). Here, the gang-

affiliation testimony helped establish how the co-conspirators knew each other, how they

grew to trust each other, and clarified how and why they communicated in specific ways.

The gang-affiliation evidence was thus properly admitted under Rule 401 as direct

evidence of the charged conspiracy. Moreover, the testimony was properly admitted

under Rule 403 because the court took care to mitigate the risk of unfair prejudice by

precluding any reference to the “Bloods,” the specific gang at issue. Accordingly, we find

that the court did not abuse its discretion in admitting the gang-affiliation testimony.2



2
 To the extent challenged here, we affirm the district court’s denial of Ross’s motion for
mistrial and severance based on the gang-related testimony. Ross has failed to
demonstrate unfair prejudice, let alone “prejudice so severe that his conviction
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       G.     Harmless Error

       Although we find that the district court acted within its evidentiary discretion in

rendering the above rulings, we likewise affirm because any potential error was harmless.

See United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (“[I]n order for an error to be

deemed harmless, the reviewing court must conclude beyond a reasonable doubt that a

rational jury would have rendered a verdict of guilty absent the alleged error.”). “The

strength of the government’s case against the defendant is probably the most critical

factor in determining whether an error affected the verdict.” United States v. Colombo, 909

F.2d 711, 714 (2d Cir. 1990).

       Here, the government presented ample evidence demonstrating that Ross and

Zottola committed the charged crimes. The government introduced thousands of text

messages between the co-conspirators, including between Zottola, Shelton, and Ross.

These messages detailed every step of the murder-for-hire conspiracy, including the

planning of the various attacks, promises of payment, confirmations of the shootings of

Salvatore and Sylvester, and celebratory messages immediately after Sylvester’s murder.

This evidence was corroborated by cell-site data demonstrating Zottola’s repeated




constituted a miscarriage of justice.” United States v. Diaz, 176 F.3d 52, 102 (2d Cir. 1999)
(internal quotation marks omitted). Absent such a showing, “we are not apt to reverse,
since, by and large, joinder promotes judicial efficiency.” Id. at 103 (internal quotation
marks omitted).
                                            11
meetings with his co-conspirators, evidence of payments from Zottola to his co-

conspirators, cooperating witness testimony, video surveillance, and DNA evidence. In

light of this overwhelming evidence, we conclude that any issues with the challenged

evidentiary rulings were “unimportant in relation to everything else the jury considered

on the issue[s] in question, as revealed in the record.” United States v. Atilla, 966 F.3d 118,

131 (2d Cir. 2020) (internal quotation marks omitted).

       II.    THE JURY CHALLENGES

       A.     Anonymous and Partially Sequestered Jury

       Zottola and Ross next challenge the district court’s empanelment of a partially

sequestered anonymous jury, arguing that these protective measures impaired their

presumption of innocence and deprived them of a fair trial. We find no abuse of

discretion.

       “A district court may order the empaneling of an anonymous jury upon (a)

concluding that there is strong reason to believe the jury needs protection, and (b) taking

reasonable precautions to minimize any prejudicial effects on the defendant and to ensure

that his fundamental rights are protected.” United States v. Kadir, 718 F.3d 115, 120 (2d

Cir. 2013) (internal quotation marks omitted). “If there is evidence to support the district

court’s finding of reason to believe the jury needs protection, and if the court has taken

reasonable precautions to minimize any prejudicial effects on the defendant . . . , the


                                              12
decision to empanel an anonymous jury is reviewed only for abuse of discretion.” United

States v. Thai, 29 F.3d 785, 801 (2d Cir. 1994). Likewise, the “decision to sequester the jury

to avoid exposure to publicity is committed to the discretion of the court.” United States

v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989).

       Given the violent nature of the charged crimes, the affiliations with organized

crime, the defendants’ willingness to interfere with the judicial process both before and

during the proceedings, and significant media attention, the district court acted well

within its discretion to partially sequester and anonymize the jury. Further, the court

minimized any potential prejudice by conducting a voir dire designed to uncover bias,

and by giving the jurors a plausible and nonprejudicial reason for the protective

measures. We accordingly affirm the district court’s empanelment of an anonymous and

partially sequestered jury.

       B.     Jury Instruction on Evaluating Cooperator Testimony

       Finally, we find no error in the district court’s jury instruction regarding

cooperator testimony. “We review preserved challenges to jury instructions de novo, but

will reverse only if all of the instructions, taken as a whole, caused a defendant prejudice.”

United States v. Jimenez, 96 F.4th 317, 322 (2d Cir. 2024) (internal quotation marks omitted).

“A defendant challenging a jury instruction as erroneous must show both error and




                                                13
ensuing prejudice . . . .” United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010) (internal

quotation marks omitted).

       Here, the court’s charge properly instructed the jury on evaluating cooperator

testimony. The court informed the jury of a cooperator’s motive to lie and instructed the

jury to “scrutinize such testimony with caution and weigh it with great care.” Joint App’x

at 441; see United States v. Vaughn, 430 F.3d 518, 524 (2d Cir. 2005) (“As long as district

courts intelligibly identify a cooperating witness’s possible motivations for the jury’s

consideration, the cautionary charge given to the jury regarding a cooperating witness’s

testimony is sufficient.”). The court also properly instructed the jury regarding U.S.S.G.

§ 5K1.1, informing the jury that the government cannot be compelled to make a 5K1

motion “unless it acts in bad faith in refusing to make such a motion,” and noting that

the “court has complete discretion . . . to impose any sentence that it deems appropriate

and reasonable.” Joint App’x 441-42. This instruction accurately describes the law and

did not mislead the jury as to the correct legal standard. See United States v. Doe, 741 F.3d

359, 362 (2d Cir. 2013) (providing that the government must act “fairly and in good faith”

in refusing to make a § 5K1.1 motion (internal quotation marks omitted)); United States v.

Fernandez, 127 F.3d 277, 286 (2d Cir. 1997) (“[E]ven where the government moves for a

departure pursuant to § 5K1.1, the sentencing judge retains discretion to decide whether




                                              14
or not to grant such a departure.”). Accordingly, we find no error in the jury instruction

given.

         We have considered the parties’ remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgments of the district court.



                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




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