Anonymous Juries and Gang-Affiliation Evidence Reaffirmed; Limits on Rule 804(b)(3) Clarified in Second Circuit’s Murder-for-Hire Ruling

Introduction

In a summary order dated November 10, 2025, the United States Court of Appeals for the Second Circuit affirmed the convictions and life sentences of Anthony Zottola, Sr. and Himen “Ace” Ross for a murder-for-hire conspiracy culminating in the murder of Zottola’s father and the attempted murder of his brother. The case involved a year-long plot to seize control of a family real estate business through coordinated attacks, including the near-fatal July 2018 shooting of Salvatore Zottola and the October 2018 murder of Sylvester Zottola. The government’s proof included voluminous text messages, cell-site data, surveillance, financial records, cooperating witness testimony, and DNA evidence.

The appeal raised a series of evidentiary and trial-management challenges: (1) hearsay exclusions and admissions under Federal Rules of Evidence 804(b)(3), 801(d)(1)(B), 403, and 106; (2) admission of co-conspirators’ gang affiliation; (3) the empanelment of a partially sequestered anonymous jury; and (4) the jury instruction regarding cooperating witnesses and U.S.S.G. § 5K1.1. The Second Circuit rejected all challenges and affirmed.

Note on caption and procedural posture: Although the header references “United States v. Blanco,” the body clarifies that the consolidated appeals concern Zottola and Ross. The Clerk was directed to correct the caption, and the panel addressed Herman Blanco’s separate appeal (an Anders/appeal-waiver matter) by a separate order the same day. This ruling is a “Summary Order” under FRAP 32.1 and Local Rule 32.1.1, meaning it has no precedential effect, though it may be cited and is often treated as persuasive guidance.

Summary of the Opinion

Convictions affirmed for murder-for-hire conspiracy and substantive counts (18 U.S.C. § 1958(a)), unlawful use/possession of a firearm (18 U.S.C. § 924(c)(1)(A)(iii)), and causing death through the use of a firearm (18 U.S.C. § 924(j)(1)).
Evidentiary rulings upheld:
- Exclusion of a July 16, 2018 proffer statement by Sylvester as not self-inculpatory under Rule 804(b)(3) and cumulative of admitted evidence.
- Exclusion of Defense Witness-1’s jailhouse hearsay as unreliable and uncorroborated under Rule 804(b)(3).
- Admission of Salvatore’s recorded calls with Vincent Basciano as prior consistent statements under Rule 801(d)(1)(B)(ii) to rehabilitate credibility after attacks on memory and truthfulness.
- Exclusion of third-party text messages under Rule 106 because they were neither explanatory of nor relevant to admitted communications.
- Admission of Zottola’s spontaneous post-arrest remarks as probative of consciousness of guilt; probative value not substantially outweighed by unfair prejudice (Rule 403).
- Admission of testimony about shared gang affiliation to explain relationships, trust, and communications within the conspiracy (Rule 401/403); denial of severance/mistrial affirmed.
Anonymous and partially sequestered jury: Upheld given violent crimes, organized-crime ties, attempts to interfere with the judicial process, and significant media attention, coupled with robust voir dire and neutral explanations to minimize prejudice.
Cooperator instruction: Upheld as accurately cautioning the jury, explaining § 5K1.1, and avoiding prejudice; no reversible instructional error.
Harmless error: Even assuming arguendo any evidentiary error, the court found overwhelming evidence of guilt rendering any error harmless beyond a reasonable doubt.

Analysis

Precedents Cited and How They Shaped the Decision

United States v. McDermott, 245 F.3d 133 (2d Cir. 2001) and United States v. Cuti, 720 F.3d 453 (2d Cir. 2013): Reinforce the broad abuse-of-discretion standard for evidentiary rulings. McDermott also guides Rule 403 review—courts assess evidence maximizing probative value and minimizing prejudice. Applied to admit Zottola’s post-arrest remarks as consciousness-of-guilt evidence.
United States v. Dupree, 870 F.3d 62 (2d Cir. 2017) and Williamson v. United States, 512 U.S. 594 (1994): Define Rule 804(b)(3) for statements against penal interest. Williamson confines the exception to truly self-inculpatory statements; non-inculpatory parts, even within a broader inculpatory narrative, are excluded. The panel used this to affirm exclusion of Sylvester’s July 16 proffer about stopping protection payments—viewed as not self-inculpatory—and as cumulative.
United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999): Demands corroboration for both the declarant’s trustworthiness and the statement’s truth under Rule 804(b)(3). Applied to exclude Defense Witness-1’s uncorroborated, contradiction-laden jailhouse hearsay (including a claim about a .38 revolver contradicted by shell casings and video).
United States v. Flores, 945 F.3d 687 (2d Cir. 2019): Interprets Rule 801(d)(1)(B)(ii) (post-2014 amendment) to allow substantive use of prior consistent statements to rehabilitate against attacks on credibility and memory, not just to rebut claims of recent fabrication. Used to admit Salvatore’s calls with Basciano showing his cooperation and lack of knowledge of the attackers.
United States v. Kopp, 562 F.3d 141 (2d Cir. 2009): The Rule 106 “rule of completeness” does not compel admission of portions of statements that are neither explanatory of nor relevant to admitted passages. Applied to reject admission of unrelated marijuana-conspiracy texts between a co-conspirator and third parties.
United States v. Reifler, 446 F.3d 65 (2d Cir. 2006): Permits limited gang-affiliation evidence to provide background and explain how a conspiracy formed and functioned. The court followed this path, sanitizing references by excluding the specific gang name to mitigate prejudice.
United States v. Diaz, 176 F.3d 52 (2d Cir. 1999): Sets the high bar for severance/mistrial—defendant must show severe prejudice amounting to a miscarriage of justice. The panel found no such prejudice from gang-affiliation testimony.
United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001), United States v. Colombo, 909 F.2d 711 (2d Cir. 1990), and United States v. Atilla, 966 F.3d 118 (2d Cir. 2020): Articulate the harmless-error standard and emphasize that overwhelming evidence often renders errors harmless. The court invoked these principles given the extensive digital, forensic, and testimonial proof.
United States v. Kadir, 718 F.3d 115 (2d Cir. 2013), United States v. Thai, 29 F.3d 785 (2d Cir. 1994), and United States v. Salerno, 868 F.2d 524 (2d Cir. 1989): Provide the framework for anonymous and (partial) sequestration measures—requiring a strong reason to believe the jury needs protection and reasonable steps to reduce prejudice. Applied in light of violence, organized-crime ties, procedural interference concerns, and media attention.
United States v. Jimenez, 96 F.4th 317 (2d Cir. 2024) and United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010): Set the standard for reviewing jury instructions de novo but reversing only upon a showing of error and prejudice. The court found neither.
United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005): Upholds cautionary instructions that intelligibly identify a cooperator’s motives to lie, instructing the jury to scrutinize such testimony with care. The court endorsed the district court’s instruction.
United States v. Doe, 741 F.3d 359 (2d Cir. 2013) and United States v. Fernandez, 127 F.3d 277 (2d Cir. 1997): Clarify § 5K1.1 practice. Doe confirms the government’s obligation to act fairly and in good faith when deciding whether to move; Fernandez confirms the sentencing judge retains discretion even when the government moves. The instruction accurately reflected these principles.

Legal Reasoning

The panel’s reasoning is methodically rooted in established rules and precedent:

Rule 804(b)(3) and the “self-inculpatory” requirement: The key differential between Sylvester’s admissible July 12 proffer and the excluded July 16 statement was whether the latter was self-inculpatory. The court deemed the “stopped protection payments” remark not self-inculpatory under Williamson. Even if admissible, the incremental probative value was minimal and cumulative—because the defense already used the July 12 proffer to advance the “Albanian mafia/alternative-perpetrator” theory—and, critically, the timing of attacks predated any cessation of payments, undercutting the alternative-causation argument.
Trustworthiness and corroboration under Rule 804(b)(3): The defense’s jailhouse statement, attributing to a chain of declarants that the killing was a mafia takeover plot and that a revolver was used, failed both prongs: it contradicted physical evidence (shell casings; video showing a semi-automatic) and rested on an unidentified source. Lumpkin warranted exclusion.
Rule 801(d)(1)(B)(ii): After defense counsel attacked Salvatore’s truthfulness and suggested mafia knowledge, the government countered with recorded calls showing his frequent police cooperation and lack of knowledge of the attackers. Post-2014, prior consistent statements are admissible to rehabilitate credibility beyond “recent fabrication,” including attacks on memory or general credibility. Flores supported this use and allowed the statements for their truth.
Rule 106 (“completeness”): The defense sought to bring in unrelated third-party texts (about marijuana) to contextualize contemporaneous co-conspirator messages. Kopp limits completeness to passages necessary to avoid misleading the jury about already-admitted statements. Because the proffered texts involved different interlocutors, topics, and codes, they were not “explanatory of” the admitted exchanges and were properly excluded.
Rule 403 and consciousness-of-guilt statements: Zottola’s spontaneous comments—apologizing about his kids and acknowledging he “had a feeling” agents were coming—were relevant to consciousness of guilt. The defense’s alternative explanation (grand jury expectations) went to weight, not admissibility. McDermott’s balancing principle favored admission; the statements’ probative value was not substantially outweighed by unfair prejudice.
Gang affiliation evidence (Rule 401/403): The testimony that Ross and co-conspirators shared a gang affiliation was not propensity evidence dressed up as background; it explained trust, connections, and coded communications integral to how the conspiracy operated. Reifler authorizes such limited background evidence. The district court mitigated prejudice by forbidding the specific gang name (“Bloods”) and by carefully cabining the testimony. No basis for severance or mistrial existed under Diaz.
Anonymous and partially sequestered jury: The court found a “strong reason” to protect jurors given the violent charges, organized-crime ties, indications of interference risks, and media attention. It minimized prejudice through robust voir dire and a neutral, non-prejudicial explanation for anonymity and sequestration. Kadir/Thai/Salerno supplied the framework; the measures fell squarely within the court’s discretion.
Cooperator instruction and § 5K1.1: The instruction flagged incentives and told jurors to scrutinize such testimony with caution—exactly what Vaughn endorses. It accurately explained § 5K1.1’s two key checks: the government’s good-faith obligation (Doe) and ultimate judicial discretion (Fernandez). The panel found the instruction balanced and legally sound.
Harmless error safety net: Even if any evidentiary ruling were mistaken, the government’s case was overwhelming: thousands of messages mapping out planning, payments, confirmations, and celebrations; location data placing conspirators together; money trails; surveillance; DNA; and cooperating witnesses. Dhinsa, Colombo, and Atilla together support affirmance in the face of such proof.

Impact and Practical Takeaways

Although this is a non-precedential summary order, it offers clear, practical guidance likely to influence trial courts and litigants in the Second Circuit:

Hearsay Limits in “Alternative Perpetrator” Theories: Defense teams attempting to introduce third-party culpability through hearsay will face robust gatekeeping under Rule 804(b)(3). Statements must be truly self-inculpatory, and reliability must be corroborated. Chains of hearsay with unidentified declarants and contradictions to physical evidence will almost certainly be excluded.
Prior Consistent Statements Are Powerful Post-2014: Where the defense attacks credibility or memory, 801(d)(1)(B)(ii) allows the government to introduce prior consistent statements substantively. Expect prosecutors to leverage recorded calls/messages to rehabilitate key witnesses.
Rule 106 Is Not a Backdoor for Unrelated Context: Completeness does not authorize the admission of different communications with different actors on unrelated topics. Parties should tie “completeness” proffers tightly to the admitted material.
Consciousness-of-Guilt Statements Remain potent: Spontaneous post-arrest remarks—even if arguably ambiguous—are often admissible. Defense alternative explanations usually go to weight.
Gang-Affiliation Evidence Can Come In—with Care: When it explains how conspirators met, trusted one another, and communicated, limited gang evidence will likely be admitted, especially if sanitized to reduce prejudice. Motions for severance based solely on such background will face an uphill battle.
Anonymous/Partially Sequestered Juries Are Sustainable in High-Risk Trials: Courts may anonymize and partially sequester juries in violent, organized-crime, or high-profile cases if they pair the measure with neutral explanations and thorough voir dire.
Cooperator Instructions Should Address Incentives and § 5K1.1: Jurors should be told to scrutinize cooperators carefully, and they may be informed—accurately—about the government’s good-faith obligations and the court’s ultimate discretion at sentencing. This can blunt defense claims that jurors were misled about cooperation dynamics.

Complex Concepts Simplified

Statement Against Penal Interest (Rule 804(b)(3)): A hearsay statement by an unavailable person is admissible only if it clearly exposed the speaker to criminal liability and is supported by corroborating evidence. Neutral or blame-shifting parts of a narrative don’t qualify. Think: “I robbed the bank” may qualify; “I stopped paying protection money” may not, because it doesn’t admit a crime by the speaker.
Prior Consistent Statements (Rule 801(d)(1)(B)): If a witness is attacked as lying or having a faulty memory, earlier statements that are consistent with their testimony can be admitted and used as proof of what they say. This helps the jury assess credibility when the defense suggests recent fabrication or general unreliability.
Rule of Completeness (Rule 106): If one party introduces part of a document or recording, the other party can ask to introduce additional parts so the jury isn’t misled. But only the parts that explain or put the admitted excerpt in proper context come in—unrelated communications do not.
Rule 403 Balancing: Judges can exclude evidence if its risk of unfair prejudice substantially outweighs its value. “Unfair prejudice” means an undue tendency to suggest decision on an improper basis (like emotion), not just that the evidence is bad for the opponent.
Gang-Affiliation Evidence: Evidence that defendants belong to a gang can be admitted to show how they know and trust each other or to explain coded communications, but courts typically limit details to reduce prejudice (e.g., excluding the gang’s name or unrelated violent acts).
Anonymous/Partially Sequestered Jury: A court can keep jurors anonymous and limit their exposure to outside influences when there’s a strong reason to believe they need protection (serious violence, organized crime, media attention). To be fair, the court gives neutral reasons and screens for bias thoroughly.
Cooperators and § 5K1.1: A cooperator hopes the government will tell the judge they provided “substantial assistance,” which can reduce their sentence. The government must act in good faith when deciding whether to make that motion, and the judge still has the final say on the sentence.
Harmless Error: Even if the trial court made a mistake, the conviction stands if the appellate court is convinced, beyond a reasonable doubt, that the jury would have convicted anyway because the evidence of guilt was so strong.

Conclusion

This summary order does not create binding precedent, but it provides lucid, practice-ready guidance on several recurring trial issues in complex conspiracy cases: the tight contours of Rule 804(b)(3); the robust utility of Rule 801(d)(1)(B)(ii) after the 2014 amendment; the narrow reach of Rule 106; the admissibility of “consciousness-of-guilt” statements; the careful but permissible use of gang-affiliation evidence; and the criteria for anonymous, partially sequestered juries in high-risk, high-profile prosecutions. The panel’s approach to cooperator instructions—linking cautionary guidance with accurate explanations of § 5K1.1 and judicial discretion—will be especially instructive for trial judges calibrating juror understanding of cooperation dynamics.

Above all, the decision underscores how overwhelming digital and forensic proof can neutralize appellate challenges through the harmless-error doctrine. For prosecutors, it affirms strategic uses of prior consistent statements and carefully sanitized background evidence to tell the “complete story.” For defense counsel, it flags the evidentiary rigor required to admit third-party culpability hearsay and cautions that Rule 106 is no license to import unrelated communications. Trial courts, meanwhile, receive affirmation that thoughtful, minimally prejudicial juror-protection measures will withstand scrutiny where genuine risks exist.