U.S.A. v. Ferguson

• Decision Date: 05 June 2000
• Docket Number: Docket Nos. 99-1262
• Citation: 246 F.3d 129
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellant-Cross-Appellee, v. GREGORY FERGUSON, aka "Black Greggo," Defendant-Appellee-Cross-Appellant. (L), 99-1302, 99-1322, 99-1324(XAP), 99-1398 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 129

246 F.3d 129 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellant-Cross-Appellee, v. GREGORY FERGUSON, aka "Black Greggo," Defendant-Appellee-Cross-Appellant.

Docket Nos. 99-1262(L), 99-1302, 99-1322, 99-1324(XAP), 99-1398

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 5, 2000

Decided: March 23, 2001

[Copyrighted Material Omitted]

VIVIAN SHEVITZ, Katonah, NY, for Defendant-Appellee-Cross-Appellant Gregory Ferguson.

ROBIN L. BAKER, Assistant United States Attorney, (Mary Jo White, United States Attorney, Mary Mulligan, Ira M. Feinberg, Assistant United States Attorneys, on the brief) New York, NY, for Appellant-Cross-Appellee.

Before: WALKER, Chief Judge, POOLER, Circuit Judge, and HADEN, District Judge.^*

POOLER, Circuit Judge:

The government appeals from the May 25, 1999, order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, J.) granting the motion of defendant Gregory Ferguson for a new trial pursuant to Fed. R. Crim. P. 33. In addition, Ferguson cross-appeals the district court's denial of his motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29.

In this case, the district court exercised a rarely used power and granted a new trial to a defendant convicted of very serious crimes. We see no indication that the district court granted this relief lightly. While critics may consider a new trial for Ferguson to be a waste of resources and based on legal technicalities, we must take a broader view. No harm and only good can come to our system of justice where we require the government to supply competent, satisfactory and sufficient evidence to prove an element of criminal liability. To let a verdict stand on anything less is indeed a manifest injustice, and we share the district court's concern that a defendant innocent of racketeering may nonetheless have been convicted of that crime.

BACKGROUND

Ferguson was one of 13 defendants that the government prosecuted in connection with its investigation of the Power Rules gang. According to the government, Power Rules operated on Union Avenue in the South Bronx between 1986 and 1997. The gang sold crack, powder cocaine and heroin. Power Rules members frequently used violence to facilitate their drug operations and increase their power through fear and intimidation, and they earned money performing contract murders. Miguel Guzman led the gang beginning in 1988. Gregory Ayala initially was a Power Rules member who worked a drug spot selling heroin and crack, but in late 1995 he began dealing directly with drug suppliers and formed his own gang, the Avenue St. John Boys. In late 1995 and early 1996, a war broke out between Power Rules and Avenue St. John Boys. According to the government, Guzman and his cohorts tried more than six times to shoot and kill Ayala. Many of these shootings took place in the streets, and the shootings often targeted Avenue St. John Boys members in addition to Ayala.

A federal grand jury returned an eighth superseding indictment on March 2, 1998, charging 13 defendants in 52 criminal counts stemming from their activities with Power Rules. The indictment charged Ferguson in eight counts with crimes including racketeering, conspiracy to violate racketeering laws, conspiracy to murder, attempted murder, use of firearms, and tampering with a witness and threatening court officers. The government characterized Ferguson as an enforcer for Power Rules who engaged in specific violent acts on its behalf. Specifically, counts 1 and 2 charged Ferguson and others with racketeering and conspiracy to racketeer, in violation of 18 U.S.C. §§ 1962(c) & 1962(d), respectively. Count 10 charged Ferguson and others with conspiracy to murder Ayala in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5). Count 11 charged Ferguson and Guzman with the attempted murder of Albert Mercado in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5). Counts 35 and 36 charged firearms offenses related to counts 10 and 11, respectively, in violation of 18 U.S.C. § 924(c). Count 51 charged Ferguson with witness tampering, in violation of 18 U.S.C. § 1512(b). Count 52 charged Ferguson with threatening deputy U.S. Marshals, in violation of 18 U.S.C. § 1503(a). The district court severed Count 52 prior to trial and ultimately dismissed it.

Trial of seven defendants, including Ferguson, took place between March 16, 1998, and June 12, 1998. During the trial, the government presented evidence that Ferguson and Power Rules members actively tried to kill rival gang leader Ayala. According to the government, on February 26, 1996, Ferguson and Power Rules members shot Albert Mercado, thinking he was Ayala. The government also tied Ferguson to two other incidents in which he and Power Rules members searched for Ayala in his neighborhood with the intent to kill him but were unable to locate him. One incident involved hiring an "O2" service car, and the other involved gang member David Rivera disguised in a Jamaican hat and fake dreadlocks. The government's evidence connecting Ferguson to these incidents largely came from cooperating witnesses, including David Rivera. Cooperating witness Luis Soto, who acted as a double agent between Power Rules and Avenue St. John Boys, also testified that one or two weeks after the Mercado shooting, he saw Guzman give money to Ferguson.

The jury convicted Ferguson of two counts: conspiracy to murder Ayala in aid of racketeering (count 10) and using and carrying a firearm in connection with that offense (count 35), in violation of 18 U.S.C. §§ 1959(a)(5) and 924(c), respectively. The jury also convicted Guzman of 30 counts, convicted Edwin Rivera of 15 counts, and convicted Ayala of the four counts in which he was charged. We affirmed the convictions of these three defendants in a separate summary order. Of the remaining three trial defendants, the jury acquitted one and returned mixed verdicts regarding two others, who did not pursue direct appeals. Six of the 13 indicted defendants pleaded guilty after Judge Scheindlin granted a severance motion.

Ferguson made Rule 29 motions for judgment of acquittal at the close of the government's case and at the end of trial. The district court reserved decision and ultimately denied the motions at a conference on June 18, 1998. Ferguson filed a motion for a new trial pursuant to Rule 33. The district court granted the motion in a written decision. See United States v. Ferguson, 49 F. Supp.2d 321 (S.D.N.Y. 1999). Ferguson was detained during trial, and he remains in detention. A panel of the Second Circuit vacated Judge Scheindlin's bail order, and we extended that panel's decision at the time of oral argument.

DISCUSSION

I. Standards of review

We review the decision of the district court to grant a new trial for abuse of discretion. See United States v. Scotti, 47 F.3d 1237, 1241 (2d Cir. 1995).¹ Our review of Judge Scheindlin's decision therefore is limited, and we are mindful that a judge has not abused her discretion simply because she has made a different decision than we would have made in the first instance. Indeed, it is on this simple yet critical matter that we find fault with the analysis of the dissent, which has chosen to review the trial evidence anew rather than apply the lens of abuse of discretion to Judge Scheindlin's decision. Rather than engage in a debate with the dissent, we merely note, as we do throughout this opinion, that the district court's holding is not an abuse of discretion even though we may have decided differently if we were the trial judge.

Just as our standard of review shapes our decision in this appeal, the standards that guide a trial court's Rule 33 analysis shape its review of the trial evidence and the outcome of defendant's Rule 33 motion. Rule 33 itself states that "the court may grant a new trial to [a] defendant if the interests of justice so require." Fed. R. Crim. P. 33. The rule by its terms gives the trial court "broad discretion...to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The district court must strike a balance between weighing the evidence and credibility of witnesses and not "wholly usurp[ing]" the role of the jury. Autuori, 212 F.3d at 120. Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, "[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." Sanchez, 969 F.2d at 1414. An example of exceptional circumstances is where testimony is "patently incredible or defies physical realities," although the district court's rejection of trial testimony by itself does not automatically permit Rule 33 relief. Id.

The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. See Sanchez, 969 F.2d at 1414. The trial court must be satisfied that "competent, satisfactory and sufficient evidence" in the record supports the jury verdict. Id. (internal quotation marks omitted). The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. See id. "There must be a real concern that an innocent person may have been convicted." Id. Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority "sparingly" and in "the most extraordinary circumstances." Sanchez, 969 F.2d at 1414. Judge Scheindlin properly cited these standards in her Rule 33 decision, and we see no indication that she failed to follow them in her analysis.

II. Grant of a new trial

The government argues that the district court abused its discretion in setting aside a jury...