United States v. Urena (73 F. Supp. 3d 291, 2014)

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This decision resolves post-trial motions filed by defendant Limet Vasquez (“Vasquez”). Between March 10, 2014 and April 29, 2014, the Court presided over the jury trial of Vasquez and co-defendant Carlos Urena (“Urena”). Urena and Vasquez are among the 76 people charged in a series of superseding indictments with violent crimes and/or narcotics offenses committed in connection with their membership in, and/or association with, a gang known as the Bronx Trinitarios Gang. See, e.g., S1 11 Cr. 1032 (returned Dec. 5, 2011) (Dkt. 4); S4 11 Cr. 1032 (returned Dec. 12, 2012) (Dkt. 401); S5 11 Cr. 1032 (returned Feb. 6, 2013) (Dkt. 539).

On April 29, 2014, the jury returned its verdict. Urena was convicted on all counts, and the jury found all racketeering acts as to him proven. Vasquez was convicted of three counts and acquitted of two. See Dkt. 1097-98 (“Verdict Forms”). Specifically, Vasquez was convicted on Count One, which charged him with participating in a racketeering enterprise, see 18 U.S.C. §§ 1961, 1962(a); Count Two, which charged him with conspiracy to commit racketeering, see id. § 1962(d); and Count Eight, which charged him with participating in a conspiracy to distribute narcotics, specifically, 100 kilograms and more of marijuana, 28 grams and more of “crack” cocaine, a quantity of powder cocaine, and a quantity of oxycodone, see 21 U.S.C. § 846. Vasquez was acquitted on Count Three, which charged him with murder in aid of racketeering of Ka’Shawn Phillips on September 3, 2005, see 18 U.S.C. § 1959(a)(1); and Count Nine, which charged him with using a firearm during and in furtherance of that murder, see id. § 924(j)(l).

Within Count One, the substantive racketeering count, as to Vasquez, the jury found that the Government had proven three predicate acts: (1) Racketeering Act One (Part A), charging a conspiracy to murder Ka’Shawn Phillips on September 3, 2005; (2) Racketeering Act Four, charging the attempted murder of Luis Montas on September 2, 2005; and (3) Racketeering Act Nine, charging the same conspiracy to distribute narcotics as charged in Count Eight. The jury found that the Government had not proven Racketeering Act One (Part B), an alternative means of proving Racketeering Act One, which charged that Vasquez had aided and abetted the murder of Ka’Shawn Phillips.

On July 17, 2014, Vasquez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33. See Dkt. 1224 (“Def. Br.”). Vasquez argues that the evidence was insufficient to support a finding of “proven” on any racketeering act which the jury found, and, therefore, was also insufficient to support a guilty verdict on Count Eight (which tracked Racketeering Act Nine). Accordingly, he moves for a judgment of acquittal on Counts One and Eight. On August 23, 2014, the Government opposed these motions. Dkt. 1263 (“Gov. Br.”).

For the reasons that follow, the Court denies Vasquez’s motions under Rule 29, with one exception: The Court overturns the jury’s finding of “proven” as to Racketeering Act Four, finding as a matter of law that the evidence at trial was insufficient to establish that Vasquez had the specific intent to murder Luis Montas. This outcome leaves intact Vasquez’s conviction on Count One. To support a conviction on that count, the Government was required to prove that Vasquez had participated in the conduct of a racketeering enterprise through a pattern of two or more' specified racketeering activities. See, e.g., United States v. Quinones, 511 F.3d 289, 314 (2d Cir.2007). Because the evidence was sufficient to establish that Vasquez committed two charged racketeering acts — the conspiracies to murder Phillips and to distribute narcotics — his conviction on Count One stands. The Court therefore denies Vasquez’s motion for a judgment of acquittal on Counts One and Eight. The Court also denies Vasquez’s motion for a new trial.

I. Motion for Judgment of Acquittal

The Court first reviews the legal standards governing a motion for a judgment of acquittal. Then, for each racketeering act and count at issue, the Court reviews and evaluates the relevant evidence.

A. Legal Standards

“A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial bears a heavy burden.” United States v. Hawkins, 547 F.3d 66, 70 (2d Cir.2008) (citation omitted); United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002). “The question is not whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt, but rather, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir.2013) (per curiam) (internal citations omitted). In a close case, where “either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, the court must let the jury decide the matter.” United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000) (citation omitted). It is not the trial court’s role to “‘substitute its own determination of ... the weight of the evidence and the reasonable inferences to be drawn for that of the jury.’ ” United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999) (quoting Curley v. United States, 160 F.2d 229, 232 (D.C.Cir.1947)). Accordingly, a “court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.” United States v. Espaillet, 380 F.3d 713, 718 (2d Cir.2004) (citation omitted).

In considering the sufficiency of the evidence supporting a guilty verdict, the Court must view the evidence in the light most favorable to the Government, with all reasonable inferences drawn in its favor. See Mi Sun Cho, 713 F.3d at 720; Hawkins, 547 F.3d at 70; United States v. Howard, 214 F.3d 361, 363 (2d Cir.2000) (“[We] resolve all inferences from the evidence and issues of credibility in favor of the verdict.”). “[T]he task of choosing among competing, permissible inferences is for the [jury], not for the reviewing court.” United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001). Moreover, the Court must analyze the pieces of evidence “not in isolation but in conjunction,” United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994), and must apply the sufficiency test “to the totality of the government’s case and not to each element, as each fact may gain color from others,” Guadagna, 183 F.3d at 130. See also United States v. Reyes, 302 F.3d 48, 53 (2d Cir.2002) (“[W]e consider the evidence as a whole.”).

The credibility of a testifying witness is particularly within the province of the jury, not the reviewing court. See United States v. O’Connor, 650 F.3d 839, 855 (2d Cir.2011) (“It is the province of the jury and not of the court to determine whether, a witness who may have been inaccurate, contradictory and even untruthful in some respects 'vyas nonetheless entirely credible in the essentials of his testimony.”) (internal quotation marks omitted). For these reasons, the Second Circuit has emphasized that “the proper place for a challenge to a witness’s credibility is ‘in cross-examination and in subsequent argument to the jury, not in an appellate brief.’” United States v. Roman, 870 F.2d 65, 71 (2d Cir.1989) (quoting United States v. Friedman, 854 F.2d 535, 558 (2d Cir.1988)). It is for the jury to decide how those arguments bear on “the weight [it] should accord to the evidence.” United States v. Truman, 688 F.3d 129, 140 (2d Cir.2012).

The jury is, further, permitted to give substantial weight to a single wit-, ness’s testimony. “A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.” United States v. Diaz, 176 F.3d 52, 92 (2d Cir.1999) (internal quotations omitted). “Any lack of corroboration of an accomplice’s or co-conspirator’s testimony goes merely to the weight of the evidence, not to its sufficiency, and a challenge to ‘[t]he weight is a matter for argument to the jury, not a ground for reversal on appeal.' ” Id. (quoting Roman, 870 F.2d at 71).

The deference accorded to the jury’s verdict “is especially important when reviewing a conviction of conspiracy ... because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.” United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir.1992) (internal quotation marks omitted). “A conspiracy need not be shown by proof of an explicit agreement but can be established by showing that the parties have a tacit understanding to carry out the prohibited conduct,” United States v. Samaria, 239 F.3d 228, 234 (2d Cir.2001), abrogated on other grounds by United States v. Huezo, 546 F.3d 174, 180 n. 2 (2d Cir.2008), and can be shown based on circumstantial evidence alone, United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir.1993). See also United States v. Glenn, 312 F.3d 58, 64 (2d Cir.2002) (“[T]he prosecution may prove its ease entirely by circumstantial evidence so long as guilt is established beyond a reasonable doubt.”); United States v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir.1991) (same). For example, a defendant’s “knowing and willing participation in a conspiracy may be inferred from ... [his] presence at critical stages of the conspiracy that could not be explained by happenstance, or a lack of surprise when discussing the conspiracy with others.” In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 113 (2d Cir.2008).

Finally, in a criminal case, a conviction on one count of an indictment may not be challenged merely because it is inconsistent, or in tension, with an acquittal on another count. See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). As the Second Circuit has explained, “[a] court knows only what the jury’s verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent.” United States v. Acosta, 17 F.3d 538, 546 (2d Cir.1994); see also United States v. Chang An-Lo, 851 F.2d 547, 560 (2d Cir.1988) (rejecting challenge based on purportedly inconsistent verdicts on racketeering and. narcotics conspiracy counts). That is particularly so when courts have no way of knowing whether a verdict is the result of a “mistake, compromise, or lenity.” Powell, 469 U.S. at 65, 105 S.Ct. 471; see also id. at 66, 105 S.Ct. 471 (“We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them.”).

B. Racketeering Act One (Part A)

Vasquez first challenges the jury’s finding of “proven” as to Racketeering Act One (Part A), which alleged that Vasquez conspirqd to murder Ka’Shawn Phillips, on September 3, 2005, in the vicinity of 78 Saratoga Avenue, Yonkers, New York, in violation of New York Penal Law, Sections 105.15 and 125.25.

1. Facts

The Trinitarios Gang was formed in the Rikers Island prison in the early 1990s to protect inmates primarily, but not exclusively, of Dominican origin. See, e.g., Tr. 177-84 (Gonzalez). Gang members engaged in criminal activity within prison, including carrying weapons and distributing narcotics. See, e.g., Tr. 185 (Gonzalez). Eventually, the gang spread throughout the New York City area. And its members began to commit crimes — including narcotics trafficking, assault, armed robbery, attempted murder, and murder— outside of prison. Id.

In the Bronx, the gang eventually came to be dominated by a group that called itself the “Bad Boys.” See, e.g., Tr. 234-47 (Gonzalez). Seven cooperating witnesses testified at trial — Richard Gonzalez (a/k/a “Webb”), Jose Diaz (a/k/a “Joselito”), Jose Cruz (a/k/a “Prostituto”), Alexander Tori-bio (a/k/a “Campe”), Juan Franco (a/k/a “Juan Carlo”), Jose Ballenilla (a/k/a “Cor-rea”), and Juan Nunez (a/k/a “Jesu Chris-to”). Four — Diaz, Cruz, Ballenilla, and Nunez — testified that they were members of the Bad Boys. These witnesses collectively testified about many dozens of acts of violence that they and others committed in connection with their membership in the gang in general and the Bad Boys in particular. See, e.g., Tr. 1204-19, 1305-20 (Diaz); 1940-92, 2013-99 (Cruz); 3277-3304 (Ballenilla); 3818-29, 3836-52 (Nunez).

One such act of violence was the murder, on the night of September 3, 2005, of Ka’ Shawn Phillips, then age 16. The evidence at trial was overwhelming that Phillips was murdered by a group of Trini-tarios gang members who targeted him, chased him, stabbed him more than 20 times, and shot him twice in the vicinity of 78 Saratoga Avenue in Yonkers. The motive for the murder was a brawl that Phillips, believed by the Trinitarios to belong to a rival gang, had been in the previous evening with members of the Trinitarios Gang’s Yonkers affiliate. Two of the Yonkers members asked the Bronx Trini-tarios to exact revenge on Phillips for them, and the Bronx members agreed to do so. The evidence further established that two Trinitarios members shot Phillips. The first shot multiple times at or in Phillips’ direction, wounding him in the chest but not killing him. Several Trinitarios then swarmed the wounded Phillips, striking and stabbing him repeatedly. The second shooter shot Phillips point-blank in the head, killing him.

The evidence established in detail how the Phillips murder was planned and executed, including the roles played in it by Vasquez and Urena. Although it included testimony from law enforcement and civilian witnesses, as well as physical and forensic evidence, the heart of this evidence was lengthy testimony from five cooperating witnesses: Diaz, Cruz, Franco, Toribio, and Nunez. See Tr. 1164-93 (Diaz), 1907-32 (Cruz), 2835-42 (Franco), 2987-3010 (Toribio), 3852-73 (Nunez). Each had pled guilty, pursuant to a cooperation agreement, to (among other crimes) murder in aid of racketeering in connection with the Phillips murder.

Specifically, all five cooperating witnesses testified that, on the evening of September 3, 2005, a meeting was held in Van Cortlandt Park, involving approximately 10 or more gang members. The Yonkers Trinitarios gang members present asked the Bronx Trinitarios gang members to retaliate against Phillips for a-brawl that had taken place between Phillips and a Yonkers Trinitarios member, Juan Martinez, the previous day, on or near Saratoga Avenue. See, e.g., Tr. 1171-72 (Diaz), 1907-09 (Cruz), 2835-36 (Franco), 2988-93 (Toribio), 3853-54 (Nunez). The'Yonkers gang members, who included Martinez, explained that they could not participate directly in the attack on Phillips, lest they be recognized by their Yonkers neighbors. See, e.g., Tr. 3860 (Nunez) (“Q: Was anything said about why they were in a different position than the Bad Boys in terms of getting caught? A: Yes, because we were from the Bronx and they didn’t know us, and they were right — I believe they were from the same hood. They were right up the block from the situation. Q: The same neighborhood as where the attack was going to take place? A: Yes.”). The Bronx Trinitarios agreed to attack Phillips in retaliation. Nunez testified that Vasquez — or “Blood,” as he was known by the Trinitarios — was present during the meeting in Van Cortlandt Park, and that he volunteered to accompany the group to Yonkers. See Tr. 3854 (“Q: Who do you remember being at this meeting? A: Me, Salcedo, Blood, Campe, Prosti, Percha, Juan Carlo, Fantasma, Fresh, Sony, Joselito, Boquita, Trencita, and various other members of the Bad Boy set.”) (emphasis added); Tr. 3860 (“Q: So what happened next? A: So then Percha asked us who wanted to volunteer, who wanted to go. I was one of the individuals that volunteered to go. Salcedo volunteered, Prosti. Me, Salcedo, Prosti, Blood, Juan Carlo, Fresh, Fantasma, Joselito already had the car, and Campe.”) (emphasis added).

Between seven and. 10 Bronx Trinitarios members then traveled, in two cars, to Yonkers. Martinez and the other Yonkers Trinitarios drove in a Jeep and led the way to Yonkers. Most of the Bronx Trinitarios followed in a van stolen (and driven) by Diaz. See, e.g., Tr. 1911-13 (Cruz). Nunez testified that Vasquez was in the van with him when he traveled to Yonkers. See Tr. 3862 (“Q: Who else went in the van? A: Joselito was driving, Prosti was in the front. Then it was Blood, me, Juan Carlo, Fantasma, and Fresh.”) (emphasis added). Vasquez was armed with a knife or a knife-like object: Cruz described it as a blade that opens up, like “a switchblade,” see Tr. 1915; Nunez recalled it as a sword fhat was about three feet long, see Tr. 3863.

Once the two cars arrived in Yonkers, the five cooperating witnesses testified, the Yonkers Trinitarios pointed out Phillips to the Bronx Trinitarios as the person to be attacked. The car driven by the Yonkers affiliates then parked on Elinor Place, some distance south of where Phillips had been standing, at or near 78 Saratoga Avenue. While the Yonkers affiliates, including Martinez, waited by their car, the Bronx Trinitarios exited their car, charged towards Phillips, and carried out the fatal attack on him. See, e.g., Tr. 1189-90 (Diaz), 1921-30 (Cruz), 2837-39 (Franco), 2997-3007 (Toribio), 3867-70 (Nunez).

The trial testimony of the five cooperating witnesses was unanimous in identifying Toribio, or “Campe,” as the first shooter. Toribio himself admitted (and testified at trial) that his nickname at the time of the murder was “Campe,” that he had been among the Trinitarios gang members who had agreed to carry out the Phillips homicide at the behest of the Yonkers affiliates, and that he had been the first shooter. See Tr. 2953-3017. All five cooperating witnesses also identified Urena as the second, fatal shooter. In between these two gunshots, the other participants in the attack, including Cruz and Nunez, stabbed and/or struck Phillips while he lay on the ground. Both Cruz and Nunez testified that they observed Vasquez stabbing Phillips, with a knife (Cruz) or sword (Nunez). See Tr. 1859-60, 1924-25 (Cruz) (“Q: What, if anything, did you see Blood doing? A: Stabbing the victim.”); Tr. 3868 (Nunez) (“I saw Blood hit him with the sword in back of me.”); Tr.. 4157 (