20-30-cr (L)
`United States v. Gershman
`
`
`United States Court of Appeals
`for the Second Circuit
`
`August Term, 2021
`
`(Argued: October 7, 2021
`
`Decided: April 12, 2022)
`
`
`
`
`
`
`
`
`
`Docket Nos. 20-30 (L), 20-754 (Con)
`_____________________________________
`
`UNITED STATES OF AMERICA,
`
`
`
`
`Appellee,
`v.
`
`LEONID GERSHMAN, aka Lenny, aka Lenny G, aka Lyonchik, aka Lyonya,
`ALEKSEY TSVETKOV, aka Pelmin, aka Lesha, aka Lyosha,
`
`
`
`
`
`Defendants-Appellants,
`Viktor Zelinger, AKA Vitya, AKA Vityok, Renat Yusufov, AKA Ronnie, AKA
`Ronik, Igor Krugly, Vyacheslav Malkeyev, AKA Steve Bart, Isok
`Aronov, Yusif Pardilov, AKA Yosik, Librado Rivera, AKA Macho,
`AKA Max, Eric Bobritsky, AKA Mamaz Boy, Artiom Pocinoc,
`
` Defendants.
`_____________________________________
`
`
`
`Before:
`
`JACOBS AND MENASHI, CIRCUIT JUDGES, AND CRONAN, DISTRICT JUDGE*
`
`A jury convicted Defendants-Appellants Leonid Gershman and Aleksey
`Tsvetkov of a slew of offenses for their role in a Brooklyn-based crime syndicate.
`
`
`* Judge John P. Cronan, of the United States District Court for the Southern
`District of New York, sitting by designation.
`
`

`

`They now appeal their convictions and sentences. Because we find that their
`challenges lack merit, the District Court’s judgment is AFFIRMED.
`Judge Jacobs concurs in part and dissents in part in a separate opinion.
`
`
`
`Kevin Trowel (Andrey Spektor and Mark J.
`Lesko, on the brief), Assistant United States
`Attorney, for Breon Peace, United States
`Attorney for the Eastern District of New
`York, for Appellee.
`
`Steven Yurowitz, Newman & Greenberg
`Leonid
`for Defendant-Appellant
`LLP,
`Gershman.
`
`Murray Singer, Murray E. Singer, Esq., for
`Defendant-Appellant Aleksey Tsvetkov.
`
`
`
`CRONAN, District Judge:
`
`This appeal involves the convictions of two members of a Brooklyn-based
`
`crime syndicate. Like a well-run business, the syndicate diversified its activities:
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`arson, extortion, illegal gambling, marijuana distribution, firearms trafficking, and
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`wire fraud. After several members of the syndicate pleaded guilty, two members,
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`Appellants Leonid Gershman and Aleksey Tsvetkov, proceeded to trial.
`
`Following a three-week trial, a jury convicted Gershman and Tsvetkov of
`
`numerous crimes, including racketeering offenses. Each man was sentenced
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`principally to 198 months’ imprisonment. Gershman and Tsvetkov now appeal
`
`2
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`

`

`their convictions, raising a host of arguments to include challenges to the
`
`admissibility of certain trial testimony, the correctness of the jury charge, the
`
`sufficiency of the Government’s proof, and the lawfulness of their sentences.
`
`Because we find that all their challenges lack merit, we affirm their convictions
`
`and sentences.
`
`A.
`
`Illegal Gambling
`
`I. BACKGROUND1
`
`The gambling crimes began in early 2016. At that time, Gershman,
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`Tsvetkov, and Renat Yusufov began hosting weekly high-stakes poker games at a
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`building off McDonald Avenue in Brooklyn, New York (“McDonald Avenue
`
`Poker Spot”). The McDonald Avenue Poker Spot was short-lived, however,
`
`thanks to a police raid just over a month after the games began.
`
`Undeterred, Gershman, Tsvetkov, and Yusufov swiftly moved their
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`gambling operation to another building off Coney Island Avenue (“Coney Island
`
`Poker Spot”), adding three new partners: Viktor Zelinger, Igor Krugly, and
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`Vyacheslav Malkeyev. To avoid suspicion, the group disguised the building to
`
`
`1 Because this appeal follows convictions after a jury trial, the following factual
`recitation is drawn from the evidence adduced at trial, presented in the light most
`favorable to the Government. See United States v. Litwok, 678 F.3d 208, 210-11 (2d Cir.
`2012).
`
`3
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`

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`make it appear to house a leasing and security company. But the inside of the
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`Coney Island Poker Spot looked quite different. It had all the amenities needed
`
`for an illegal gambling operation: a poker room, a video poker machine, a players’
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`lounge, and a kitchen.
`
`During the bi-weekly sessions, the players would wager hundreds of
`
`thousands of dollars, with the partners taking a cut of those wagers. That rake
`
`yielded a hefty profit of about $20,000 per session. The gamblers at the Coney
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`Island Poker Spot did not immediately exchange cash with the syndicate members
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`during the games. Rather than playing cash games, players gambled using house
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`credit, with their wins and losses recorded in ledgers. And the gamblers were to
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`either collect their winnings or pay their losses the next week.
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`This credit system came with problems, however, as unsuccessful gamblers
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`did not always pay their debts on time or in full. So over time, the collection tactics
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`became less friendly. For instance, Gershman recruited members of the Eastern
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`European mafia to confront one gambler and his family in Russia and Israel. Nor
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`was the group reluctant to resort to threats of violence to pressure defaulting
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`gamblers: they threatened to “smash [one gambler’s] f***ing face,” told another
`
`gambler that the debt pay-by dates were “not [just] words,” and advised another
`
`4
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`

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`gambler that if he did not pay, they would not “all be living peacefully anymore.”
`
`Gov’t App’x 75-76, 88, 96-97. And when Gershman began to suspect that one
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`gambler cheated when playing at the Coney Island Poker Spot, Gershman slapped
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`and drop-kicked the person who he suspected invited the cheater to the game.
`
`The syndicate employed even more violent means to protect the Coney
`
`Island Poker Spot from competition. In April 2016, Gershman and his partners
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`began to believe that a nearby poker spot on Voorhies Avenue (“Voorhies Avenue
`
`Poker Spot”) was hurting their business. Gershman, Tsvetkov, and two other
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`syndicate members met with the man who ran the Voorhies Avenue Poker Spot to
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`discuss how to resolve their issues. Discussions went nowhere.
`
`So Gershman, Tsvetkov, Zelinger, Yusufov, and Malkeyev met at the Coney
`
`Island Poker Spot to decide how to deal with this problem. Before starting the
`
`meeting, Gershman asked everyone to turn off their phones. Zelinger then
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`proposed setting the Voorhies Avenue Poker Spot on fire, a solution to which
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`everyone agreed. After Tsvetkov asked who would set the fire, Zelinger directed
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`Yusufov and Malkeyev to do it.
`
`And so in early May 2016, Yusufov and Malkeyev drove to the Voorhies
`
`Avenue Poker Spot to commit the arson. They broke in with a crowbar, doused
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`5
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`

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`the poker room with lighter fluid, and then set the room on fire. The fire spread
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`to the second and third floors, nearly killing a 19-year-old man and his 12-year-old
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`brother and seriously injuring a firefighter who responded to the blaze.
`
`B. Other Extortions
`
`People also came to Gershman and Tsvetkov for assistance in collecting non-
`
`gambling debts. Gershman and Tsvetkov would oblige, extorting victims with
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`threats and violence to collect debts.
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`For example, Gershman punched a debtor named Denis Dulevskiy in the
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`face, threatening Dulevskiy that he would “break [his] f***ing mouth” and that
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`Dulevskiy would end up worse than his mother, who was hospitalized at the time.
`
`Id. at 62. Tsvetkov punched another debtor in the face after Tsvetkov, Gershman,
`
`and Yusufov met the man in an alley. Gershman put a blade to another man’s face
`
`and told Yusufov that they “should . . . give [the man] a 150” (a threat to cut across
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`the man’s face so that he would require 150 stitches). App’x 464-65. And Tsvetkov
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`took a gold chain off another man’s neck and later beat the man, including kicking
`
`him three times while he lay helpless in the middle of the street.
`
`6
`
`

`

`C. Marijuana Trafficking
`
`Syndicate members also ran an illegal marijuana distribution business.
`
`Gershman began the business with Malkeyev and Eric Bobritsky in 2010 or 2011.
`
`Gershman and Malkeyev operated the business at the high level: purchasing
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`marijuana from wholesalers, hiring and firing drug runners, and keeping track of
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`the books. To maximize profits, Gershman and Malkeyev would buy marijuana
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`from different suppliers depending on who was offering the best price and quality.
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`Tsvetkov was one of the top suppliers for the business.
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`To sell the product, Malkeyev would bag the marijuana for retail sale and
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`Bobritsky would then deliver it to buyers. Gershman and Malkeyev also
`
`employed drug runners to distribute the marijuana, paying these runners around
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`$40,000 per year and supplying them with cars equipped with secret
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`compartments to store marijuana and cash. All these efforts led to a lucrative
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`business: Gershman, Malkeyev, and Bobritsky each made around $5,000 per
`
`month.
`
`Because the marijuana business was so profitable, Gershman, Malkeyev,
`
`and Bobritsky protected it with violence. After discovering that two members of
`
`a rival criminal organization stole cash and marijuana from their stash house,
`
`7
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`

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`Gershman set up a meeting with one of the suspected thieves, Misha Arazyev.
`
`Gershman, Tsvetkov, and Malkeyev then met Arazyev on a busy street in
`
`Brooklyn. When the conversation between Gershman and Arazyev went south,
`
`Gershman hit Arazyev and Malkeyev pulled out a pistol and pointed it at
`
`Arazyev. Arazyev tried to run away, but Gershman, Tsvetkov, and Malkeyev
`
`chased him down, with Tsvetkov directing Malkeyev to shoot (which Malkeyev
`
`did not do). When they caught Arazyev, Gershman and Tsvetkov beat Arazyev,
`
`and Tsvetkov then repeatedly pistol-whipped him with Malkeyev’s gun.
`
`Besides profits and violence, the marijuana business was a venture
`
`involving close friends—Gershman considered Bobritsky and Malkeyev “family.”
`
`Id. at 1561. And so when someone caused (in Gershman’s mind) issues between
`
`the three men, Gershman did not take kindly to it. A long-time cocaine dealer,
`
`Leonid Kotovnikov, gossiped about tension among Gershman, Malkeyev, and
`
`Bobritsky over pay. Gershman swiftly extorted Kotovnikov for $10,000 for
`
`“mess[ing] up his family” by telling Kotovnikov that he knew where he lived and
`
`where his wife slept and that Kotovnikov “didn’t want any altercations with him.”
`
`Id. at 1560-61. Gershman also extorted Kotovnikov for money when Kotovnikov
`
`briefly hired Bobritsky to work for his cocaine business.
`
`8
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`

`

`D. Other Crimes
`
`Gershman and Tsvetkov committed other crimes as well. Gershman ran a
`
`highly profitable loansharking business. He also supplied firearms to the
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`syndicate. And Tsvetkov defrauded Progressive Insurance by using Yusufov and
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`a business partner to inflate the damages to his car.
`
`E.
`
`Convictions and Sentences
`
`Appellants and seven other individuals were arrested in November 2016 on
`
`a ten-count indictment. Over the next year-and-a-half, the Government
`
`superseded the original indictment four times, culminating in a twenty-six-count
`
`indictment (the “Indictment”) in May 2018. The Indictment charged racketeering
`
`and a racketeering conspiracy under the Racketeer Influenced and Corrupt
`
`Organizations Act (“RICO”), extortionate collection of credit, extortion, illegal
`
`gambling, firearms offenses, marijuana distribution, and a wire fraud conspiracy.
`
`The trial began on August 7, 2018. The Government called sixteen
`
`witnesses, including Yusufov and Malkeyev who testified with cooperation
`
`agreements with the Government. The defense called three witnesses, including
`
`workers at the Coney Island Poker Spot and the Voorhies Avenue Poker Spot.
`
`9
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`

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`After a three-week trial, the jury convicted Gershman and Tsvetkov on all
`
`Counts. In its verdict, the jury also found that the Government had proven all
`
`fifteen racketeering acts alleged in the Indictment. In short, the jury convicted
`
`Appellants of:
`
`Count(s)
`1
`
`Racketeering
`
`Charge
`
`2
`
`3
`
` 4-5
`
`Racketeering conspiracy (collection of
`unlawful debt)
`Extortionate collection of
`credit conspiracy
`Extortion and related conspiracy
`
`Defendant(s)
`Gershman and Tsvetkov
`
`Gershman and Tsvetkov
`
`Gershman and Tsvetkov
`
`Gershman and Tsvetkov
`
`6-14
`
`Extortion and related conspiracy
`
`Gershman
`
`15-16
`
`Illegal gambling and related conspiracy Gershman and Tsvetkov
`
`17-18 Arson at 2220 Voorhies Avenue and
`related conspiracy
` 19-20 Marijuana distribution and related
`conspiracy
`Firearms trafficking
`
`22-232
`
` 24-25
`
`Extortionate extension of credit
`
`26
`
`Wire fraud conspiracy
`
`Gershman and Tsvetkov
`
`Gershman and Tsvetkov
`
`Gershman
`
`Gershman
`
`Tsvetkov
`
`
`2 The jury also convicted Gershman and Tsvetkov of Count 21, which charged
`them with unlawfully using and brandishing a firearm. The District Court vacated these
`convictions after trial, without objection from the Government.
`
`10
`
`

`

`For the substantive racketeering charge, the jury found that the Government had
`
`proven each racketeering act:
`
`Racketeering
`Act(s)
`1-2
`
`3-6
`
`8-9
`
`10
`11
`12
`13
`14
`
`15
`16
`
`Charge
`
`Defendant(s)
`
`Extortionate collection of credit and
`state law extortion
`Extortionate collection of credit and
`state law extortion
`Hobbs Act extortion and state law
`extortion
`State law extortion
`State law extortion
`Attempted state law extortion
`Arson and related conspiracy
`Extortionate extension of credit and
`related conspiracy
`Illegal gambling
`Distributing marijuana and related
`conspiracy
`
`Gershman and Tsvetkov
`
`Gershman
`
`Gershman
`
`Gershman and Tsvetkov
`Gershman
`Tsvetkov
`Gershman and Tsvetkov
`Gershman
`
`Gershman and Tsvetkov
`Gershman and Tsvetkov
`
`On December 3, 2019, the District Court sentenced Gershman to 198 months’
`
`imprisonment, to be followed by five years of supervised release, and on February
`
`20, 2020, the District Court also sentenced Tsvetkov to 198 months’ imprisonment,
`
`to be followed by three years of supervised release. This appeal follows.
`
`II. CHALLENGES TO THE CONVICTIONS
`
`We start with Appellants’ challenges to their convictions. Gershman alone
`
`argues that the District Court improperly permitted a witness to identify him at
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`11
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`

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`trial without first conducting an evidentiary hearing, and that certain of his
`
`convictions for extortionate collection of credit conspiracies violated the Fifth
`
`Amendment’s Double Jeopardy Clause. Both Appellants challenge the sufficiency
`
`of the evidence supporting their RICO convictions, particularly as to whether an
`
`enterprise existed, and the sufficiency of the proof and the jury instructions for the
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`arson-related charges. We take each challenge in turn.
`
`A.
`
`Smoloff’s Identification of Gershman
`
`Gershman first challenges the District Court permitting Gershman’s former
`
`neighbor, Todd Smoloff, to identify Gershman at trial as the person who likely
`
`possessed a firearm outside Smoloff’s apartment building in September 2012.
`
`Smoloff testified that, after hearing a noise outside one day, he looked out his
`
`window to observe Gershman on a walkway pointing a black gun in the air.3
`
`Smoloff further explained to the jury that there appeared to be a dispute occurring
`
`at the time. The District Court admitted this testimony under Federal Rule of
`
`Evidence 404(b) as evidence of Gershman’s access to guns during the relevant time
`
`period.
`
`
`3 To avoid undue prejudice, the District Court precluded the Government from
`eliciting testimony that Smoloff saw Gershman discharge the firearm.
`
`12
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`

`

`Before identifying Gershman at trial, Smoloff had already met with the
`
`police concerning the September 2012 incident. First, in the immediate aftermath
`
`of the shooting, Smoloff told law enforcement that someone he recognized who
`
`lived on the sixth or seventh floor of his building, and who had a Russian accent,
`
`unique tattoos, and black-rimmed glasses, discharged a firearm outside the
`
`building during an incident with other people. Detectives then showed Smoloff
`
`approximately 600 photographs of individuals, none being Gershman, and
`
`Smoloff said that the perpetrator was not depicted in any of the photographs. Five
`
`years later, detectives showed Smoloff a six-photograph array, which included
`
`Gershman. Smoloff identified Gershman from the array and said that he was
`
`“virtually certain” that Gershman was the shooter.
`
`Gershman argues that before allowing Smoloff’s identification testimony,
`
`the District Court should have conducted an evidentiary hearing, known as a Wade
`
`hearing, to determine whether Smoloff’s anticipated in-court identification of
`
`Gershman had been improperly tainted by these previous identification events.
`
`And by failing to conduct a Wade hearing, Gershman argues, the District Court
`
`improperly admitted Smoloff’s in-court identification. Gershman contends that
`
`because this evidence was “critical” to the Government’s proof as to his
`
`13
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`commission of the gun trafficking offenses (i.e., Counts 22 and 23), those two
`
`convictions must be vacated.
`
`1.
`
`Legal Standards
`
`The Supreme Court has recognized that due process can sometimes prevent
`
`a witness who identified a defendant before trial from identifying the defendant
`
`at trial. See, e.g., Simmons v. United States, 390 U.S. 377, 384-85 (1968); Perry v. New
`
`Hampshire, 565 U.S. 228, 238-39 (2012). But those circumstances are scarce—“we
`
`will exclude a pre-trial identification only if it was both produced through an
`
`unnecessarily suggestive procedure and unreliable.” United States v. Bautista, 23
`
`F.3d 726, 729 (2d Cir. 1994). So to exclude an in-trial identification based on a
`
`pretrial identification, a defendant must follow those two steps based on the “facts
`
`of [his] case and the totality of the surrounding circumstances.” United States v.
`
`Maldonado-Rivera, 922 F.2d 934, 973 (2d Cir. 1990).
`
`At step one, the Court must determine whether “the pretrial identification
`
`procedures were unduly suggestive of the suspect’s guilt.” Id. If the procedures
`
`were not unduly suggestive, then “the trial identification testimony is generally
`
`admissible without
`
`further
`
`inquiry
`
`into
`
`the reliability of
`
`the pretrial
`
`identification.” Id. That is because when “there is no possible taint of
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`

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`suggestiveness in the identification procedures, any question as to the reliability
`
`of the witness’s identifications goes to the weight of the evidence, not its
`
`admissibility.” United States v. Al-Farekh, 956 F.3d 99, 110 (2d Cir. 2020) (quotations
`
`omitted). But if the procedures were unduly suggestive, the analysis moves to the
`
`second step. There, “we must consider whether the in-court identification is
`
`independently reliable rather than the product of the earlier suggestive
`
`procedures.” Id. (quotations omitted).
`
`To determine whether a witness should be permitted to identify a defendant
`
`at trial, a defendant may request a pretrial evidentiary hearing under United States
`
`v. Wade, 388 U.S. 218, 239-243 (1967). 4 “The purpose of a Wade hearing is to
`
`
`4 At issue in Wade was the in-court identification of the defendant by two
`witnesses, following their viewing of a post-indictment lineup at which the defendant
`was not represented by counsel. The Supreme Court held that the post-indictment lineup
`was a critical stage of the prosecution, and therefore the Sixth Amendment provided the
`defendant the right to counsel at that lineup. See 388 U.S. at 237-38. In reaching this
`holding, the Court discussed the “innumerable dangers and variable factors which might
`seriously, even crucially, derogate from a fair trial” that are attendant to witness
`identification of a defendant. Id. at 228. The Court also explained that “[i]nsofar as the
`accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect
`pretrial identification which the accused is helpless to subject to effective scrutiny at trial,
`the accused is deprived of that right of cross-examination which is an essential safeguard
`to his right to confront the witnesses against him.” Id. at 235 (citing Pointer v. Texas, 380
`U.S. 400 (1965)). As to the remedy, the Court remanded for the district court to consider
`“whether the in-court identifications had an independent source, or whether, in any
`event, the introduction of the evidence was harmless error.” Id. at 242.
`
`15
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`

`

`determine before the trial whether pretrial identification procedures have been so
`
`improperly suggestive as to taint an in-court identification.” Lynn v. Bliden, 443
`
`F.3d 238, 248 (2d Cir. 2006), as amended (May 19, 2006) (quotations and alteration
`
`omitted).
`
`“Where there is a contention that the pretrial identification was the result of
`
`impermissibly suggestive procedures, a Wade hearing is advisable; but the
`
`Supreme Court has made it clear that there is no ‘per se rule compelling such a
`
`hearing in every case.’” Dunnigan v. Keane, 137 F.3d 117, 128-29 (2d Cir. 1998)
`
`(quoting Watkins v. Sowders, 449 U.S. 341, 349 (1981)) (alterations omitted),
`
`abrogated on other grounds by Perry, 565 U.S. 228. That is because “the information
`
`needed for assessment of reliability can ordinarily be elicited through the time-
`
`honored process of cross-examination.” Id. at 129 (quotations omitted). It is
`
`therefore the jury that should determine the reliability of identification evidence
`
`in all but the most extraordinary cases. See United States v. Brewer, 36 F.3d 266, 269
`
`(2d Cir. 1994) (“[I]n the absence of a very substantial likelihood of irreparable
`
`misidentification, identification evidence is for the jury to weigh.” (quotations and
`
`alterations omitted)).
`
`16
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`

`In assessing whether Gershman was entitled to a Wade hearing under this
`
`framework, we employ a similar analysis as we do when assessing whether a
`
`defendant is entitled to an evidentiary hearing on a suppression motion, asking
`
`whether the defendant has shown that “the moving papers are sufficiently
`
`definite, specific, detailed, and nonconjectural to enable the court to conclude that
`
`contested issues of fact . . . are in question.” United States v. Pena, 961 F.2d 333, 339
`
`(2d Cir. 1992) (quotations omitted). Thus, a district court may decide the motion
`
`without a Wade hearing unless the defendant shows disputed issues of definite,
`
`specific, and nonconjectural material fact. See United States v. Torres, 191 F.3d 799,
`
`811 (7th Cir. 1999) (adopting the same test for out-of-court identifications).5
`
`Because the trial court has discretion as to whether to hold a Wade hearing,
`
`we review “the decision not to hold an evidentiary hearing for abuse of
`
`discretion.” United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001). “We review a
`
`district court’s determination of the admissibility of identification evidence for
`
`clear error.” Id.
`
`
`5 District courts in the Second Circuit have also applied the general rule from Pena
`for deciding whether to conduct a Wade hearing. See, e.g., United States v. Durant, No. 18
`Cr. 702 (CM), 2019 WL 2236233, at *3 (S.D.N.Y. May 15, 2019); United States v. Collymore,
`No. 16 Cr. 521 (CM), 2017 WL 5197287, at *2 (S.D.N.Y. Oct. 20, 2017); United States v. Abu
`Ghayth, 990 F. Supp. 2d 427, 434 (S.D.N.Y. 2014).
`
`17
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`

`

`2.
`
`Analysis
`
`We find that the District Court did not clearly err in permitting Smoloff to
`
`identify Gershman at trial nor abuse its discretion in denying Gershman’s request
`
`for an evidentiary hearing. To begin with, Gershman failed to show that Smoloff’s
`
`identification of Gershman from the six-photographic array—five years after the
`
`incident—arose from unduly suggestive procedures. “In evaluating whether or
`
`not a photographic array was unduly suggestive, a court must consider several
`
`factors, including the size of the array, the manner of presentation by the officers,
`
`and the contents of the array.” United States v. Thai, 29 F.3d 785, 808 (2d Cir. 1994);
`
`see also id. (collecting cases in which six-photograph array was found to be
`
`sufficiently large).
`
`Gershman relies heavily on the fact that he was the only individual in the
`
`photograph array wearing a black hoodie. This is significant, he argues, because
`
`Smoloff first described the shooter on a 911 call shortly after the shooting as
`
`wearing a black hoodie, glasses, and shorts. Other individuals in the array,
`
`however, were depicted wearing similar clothing styles, including one person
`
`wearing a lighter colored hoodie and another wearing what appears to be a dark,
`
`collared jacket. Moreover, Gershman appeared in the photograph with various
`
`18
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`

`features that differed markedly from how Smoloff described him shortly after the
`
`shooting: in the photograph, Gershman was not wearing glasses, had a different
`
`hairstyle, and had facial hair. And while some of the other individuals in the
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`photograph array had similar facial hair as Gershman, at least two had noticeably
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`less facial hair.
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`But even if there were any basis to conclude that the pretrial identification
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`procedure was unduly suggestive, Gershman fails on the second step because of
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`the independent reliability of Smoloff’s in-court identification. Considerable
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`indicia of reliability supported that identification. While the trial took place years
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`after Smoloff witnessed the event, Smoloff had a clear view of Gershman from the
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`safety of his apartment window, from where he surveyed the scene after hearing
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`a gunshot; he saw Gershman’s face, general build, and a tattoo on his arm; and he
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`immediately recognized Gershman as a neighbor with whom he had ridden the
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`elevator and conversed. When Smoloff identified Gershman in court, he did so
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`with “100 percent” certainty. App’x 1307-08.
`
`B.
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`Extortion Conspiracy
`
`We now turn to Gershman’s argument that certain of his convictions for
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`extortionate collection of credit conspiracies violated the Fifth Amendment’s
`
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`Double Jeopardy Clause. The Double Jeopardy Clause protects against being tried
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`twice for the same offense. This protection bars not only prosecutions for offenses
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`that are literally the same but also prosecutions “when one offense is a lesser
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`included offense of the other.” United States v. Gaskin, 364 F.3d 438, 453 (2d Cir.
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`2004) (quotations omitted). The latter prohibition is at issue.
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`Gershman claims that some of his convictions for extortionate collection of
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`credit conspiracies toward specific victims count as lesser offenses to his broader
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`conviction for conspiracy to collect credit through extortionate means. Count 3
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`charged Gershman, Tsvetkov, and Zelinger with an overarching conspiracy from
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`2015 to November 2016 to collect credit through extortionate means. Gershman
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`was also charged in Counts 4, 6, 8, 10, and 12 with shorter duration conspiracies
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`to extort collecting credit from specific victims, John Does 1-5.6 Gershman argues
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`that Count 3, as the overarching conspiracy, subsumed Counts 4, 6, 8, 10, and 12,
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`and therefore we should set aside his convictions for those five Counts.
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`“[T]he constitutional protection against double jeopardy is a personal
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`right,” Aparicio v. Artuz, 269 F.3d 78, 96 (2d Cir. 2001), and Gershman never raised
`
`
`6 Tsvetkov and Zelinger were also charged in Count 4. For Counts 6, 8, 10, and
`12, Gershman was the only defendant charged.
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`this multiplicity challenge before the District Court. “[I]t is a well-established
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`general rule that an appellate court will not consider an issue raised for the first
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`time on appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). This rule
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`is not, however, “an absolute bar to raising new issues on appeal; the general rule
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`is disregarded when we think it necessary to remedy an obvious injustice.” United
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`States v. Stillwell, 986 F.3d 196, 200 (2d Cir. 2021). So “[u]ltimately, ‘entertaining
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`issues raised for the first time on appeal is discretionary with the panel hearing the
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`appeal.’” Id (quoting Greene, 13 F.3d at 586) (alteration omitted).
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`Here, the Government unsealed the second superseding indictment, which
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`first charged all of the extortion conspiracies discussed above, almost a year before
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`trial and the final superseding indictment was publicly filed about two-and-a-half
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`months before trial. Any alleged defect in the charges therefore would have been
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`apparent to Gershman well before trial. Under these circumstances, and given
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`that the sentences run concurrently,7 we do not find an obvious injustice in not
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`reaching the claim. We thus decline to address Gershman’s double jeopardy
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`claim.
`
`
`7 We need not decide whether a double jeopardy violation in a case involving
`concurrent sentences, but lacking circumstances like those presented here, would create
`“an obvious injustice.” Stillwell, 986 F.3d at 200.
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`C.
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`Instructional and Sufficiency Challenges
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`We move next to Appellants’ arguments that insufficient evidence
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`supported their RICO and arson convictions, and that the jury instruction
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`pertaining to the substantive arson offense was flawed.
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`1.
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`Existence of a Racketeering Enterprise
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`We review challenges to the sufficiency of the evidence de novo. United States
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`v. Martoma, 894 F.3d 64, 72 (2d Cir. 2017). But to reverse a conviction on appeal, a
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`defendant carries a “heavy burden.” United States v. Demott, 906 F.3d 231, 239 (2d
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`Cir. 2018) (quotations omitted). To prevail, Appellants must show that “no
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`rational trier of fact could have found all of the elements of the crime beyond a
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`reasonable doubt.” Id. (quotations omitted). And in reviewing how a rational trier
`
`of fact would rule, “we must view the evidence in the light most favorable to the
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`government.” Martoma, 894 F.3d at 72 (quotations omitted). We thus “credit[]
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`every inference that could have been drawn in the government’s favor[] and
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`defer[] to the jury’s assessment of witness credibility and its assessment of the
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`weight of the evidence.” Id. (quotations omitted).
`
`With those principles in mind, we first turn to Appellants’ challenges to
`
`their convictions for substantively violating RICO and conspiring to violate RICO,
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`as charged in Counts 1 and 2, respectively. Appellants contend that the
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`Government offered insufficient proof that their criminal syndicate qualified as a
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`RICO enterprise and therefore their convictions on Counts 1 and 2 must be
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`vacated. We disagree.
`
`As relevant here, RICO makes it unlawful for “any person employed by or
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`associated with any enterprise” whose activities affect interstate or foreign
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`commerce “to conduct or participate . . . in the conduct of such enterprise’s affairs
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`through a pattern of racketeering activity,” or to conspire to do so. 18 U.S.C.
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`§ 1962(c), (d). Congress defined “enterprise” for purposes of RICO broadly. See
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`Boyle v. United States, 556 U.S. 938, 944-46 (2009). An enterprise “includes any . . .
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`group of individuals associated in fact although not a legal entity.” 18 U.S.C.
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`§ 1961(4). Such a group has “at least three structural features: a purpose,
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`relationships among those associated with the enterprise, and longevity sufficient
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`to permit these associates to pursue the enterprise’s purpose.” Boyle, 556 U.S. at
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`946. Or to put it plainly, an association-in-fact enterprise is “simply a continuing
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`unit that functions with a common purpose.” Id. at 948.
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`Because of the expansive nature of an association-in-fact enterprise, it may
`
`help to think of the concept by what qualities are unnecessary. The group need
`
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`not have a name. Id. Nor must it “have a hierarchical structure or a ‘chain of
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`command.’” Id. Its members “need not have fixed roles.” Id. And the group need
`
`not continually commit crimes—its associates may “engage in spurts of activity
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`punctuated by periods of quiescence.” Id.
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`The breadth of what encapsulates such an enterprise means that its existence
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`“is oftentimes more readily proven by what it does, rather than by abstract
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`analysis of its structure.” United States v. Applins, 637 F.3d 59, 73 (2d Cir. 2011)
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`(quotations omitted). Thus, while the enterprise and pattern of racketeering
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`activity are separate elements, “proof of various racketeering acts may be relied
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`on to establish the existence of the charged enterprise.” Id. (quotations omitted);
`
`see Boyle, 556 U.S. at 947 (explaining that “the evidence used to prove the pattern
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`of racketeering activity and the evidence establishing an enterprise ‘may in
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`particular cases coalesce’” (quoting United States v. Turkette, 452 U.S. 576, 583
`
`(1981))).
`
`With t