U.S. v. Ferguson, S8 97 CR 786(SAS).

• Decision Date: 25 May 1999
• Docket Number: No. S8 97 CR 786(SAS).,S8 97 CR 786(SAS).
• Citation: 49 F.Supp.2d 321
• Parties: UNITED STATES of America v. Gregory FERGUSON, Defendant.
• Court: U.S. District Court — Southern District of New York

49 F.Supp.2d 321

UNITED STATES of America v. Gregory FERGUSON, Defendant.

No. S8 97 CR 786(SAS).

United States District Court, S.D. New York.

May 25, 1999.

M. Katherine Baird, Robin L. Baker, Mary Mulligan, Assistant United States Attorneys, New York City, for U.S.

Avraham Moskowitz, Moskowitz & Book, LLP, New York City, for Defendant.

OPINION & ORDER

SCHEINDLIN, District Judge.

Indictment S8 97 CR 786 charged defendant Gregory Ferguson in eight counts. Count one charged Ferguson and others with participating in a racketeering enterprise known as Power Rules. Ferguson was charged with participating in four predicate acts: (1) the attempted murder of Alberto Mercado; (2) the conspiracy to murder Gregory Ayala; (3) witness tampering; and (4) threatening a United States Marshal. Count Two charged Ferguson and his co-defendants with a RICO conspiracy in connection with the activities of Power Rules. Ferguson was also charged with two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959, based on the attempted murder of Mercado and the conspiracy to murder Ayala and two counts of possessing weapons in connection with crimes of violence in violation of 18 U.S.C. § 924(c). Also charged was one count of witness tampering and one count of threatening a United States Marshal.¹

After a three-month trial, Ferguson was acquitted on five counts: the substantive RICO charge, the RICO conspiracy charge, the witness tampering charge, the violent crime in aid of racketeering charge based on the attempted murder of Albert Mercado and the related weapons charge. Ferguson was convicted, however, of one count of committing a violent crime in aid of racketeering based on the conspiracy to murder Gregory Ayala and the related weapons charge. It is for these convictions that Ferguson seeks a new trial pursuant to Federal Rule of Criminal Procedure 33. As explained below, because I conclude that Ferguson's trial was fundamentally unfair, his motion is granted and a new trial is ordered with respect to Counts 10 and 35.

Factual Background Regarding the Enterprise

Power Rules, a gang that distributed heroin, cocaine and crack in the Bronx, is the RICO enterprise with which Ferguson was allegedly involved. Its leader, Miguel Guzman, a defendant at the trial, testified that it was made up of Spanish-speaking Puerto Ricans, most of whom lived on or near Union Avenue in the Bronx. See Trial Transcript ("Tr.") at 7699-7700. Power Rules operated from 1986 to 1997. See Indictment, ¶ 5. The primary purposes of Power Rules was the sale of drugs, extorting money or "rent" payments from other drug dealers, and the robbery of other drug dealers. Id., ¶ 3. Power Rules often resorted to violence to protect itself and its members. Id. The Indictment charged that the gang members were responsible for four murders, see ¶¶ 7(b), 8(b), 9(d) and 39, thirteen attempted murders, see ¶¶ 7(a), 7(c), 12(a), 12(b), 14, 15(c), 16, 43, 45, 57, 65, 67 and 73, and many assaults. Gang members were routinely armed with handguns, pistols and automatic weapons.

Discussion

A. Rule 33 Standard

A motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 may be granted "if the interests of justice so require." Fed.R.Crim.P. 33. Whether to grant a motion for a new trial pursuant to Rule 33 rests in the broad discretion of the trial judge. United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir. 1984). The burden of proving the need for a new trial lies with the defendant. United States v. Soblen, 203 F.Supp. 542 (S.D.N.Y.1961), aff'd, 301 F.2d 236 (2d Cir. 1962). Unlike a Rule 29 motion, in deciding whether to grant a Rule 33 motion, a judge may weigh the evidence and determine the credibility of witnesses.² United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.1992). The Court is not required to view the evidence in the light most favorable to the Government. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). The Court's discretion is, however, somewhat limited in that it should only grant a new trial when it "concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict [such] that a serious miscarriage of justice may have occurred." Id. Such motions are not favored and should be granted only with great caution in exceptional circumstances. United States v. Costello, 255 F.2d 876, 879 (2d Cir.1958); Soblen, 203 F.Supp. at 564. It is only where an injustice has been done such that an innocent person may have been convicted that there is a need for a new trial. Sanchez, 969 F.2d at 1414.³

B. Proof of Motivation Element

1. The Government's Presentation of the Three Theories of Motivation

a. The Indictment and the Charge

The statute governing violent crimes in aid of racketeering activity provides:

Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished...

18 U.S.C. § 1959(a). Here, the Government charged that Ferguson conspired to kill Ayala for one or more of the three purposes set forth in the statute: (1) for pecuniary gain; (2) for the purpose of gaining entry to Power Rules; and/or (3) for the purpose of maintaining or increasing his position in Power Rules. See Indictment at ¶ 51. In addition, all three motives were included in the jury charge. See Tr. at 9171-72. Specifically, the jury was charged as follows:

As you consider Counts Three through Twenty-One, the last element I will instruct you on is the one which requires the Government to prove that the defendant you are considering acted either:

(1) in consideration of the receipt of, or in consideration of a promise or agreement to pay, something of value from the enterprise; or (2) for the purpose of gaining entrance to, maintaining or increasing his position in that enterprise.

The words "in consideration of," "receipt," and "a promise or agreement to pay [something] of pecuniary value from [the] enterprise" should be given their ordinary meaning, that is, the Government must prove that the defendant believed that he would receive something valuable from the enterprise in exchange for committing the crime alleged.

Alternatively, to establish that the defendant committed the crime alleged for the purpose of "gaining entrance to or maintaining or increasing" his position in the enterprise, the Government must prove that the defendant's general purpose in committing the crime in question was to gain entrance to, to increase [sic], maintain his position in the enterprise. Self-promotion need not have been the defendant's only, or even his primary concern, if it was committed as an integral aspect of membership in the enterprise. It is not necessary that the defendant be a formal member of the enterprise. The motive requirement is satisfied if the defendant committed the crime because it would allow him to gain entrance to that enterprise, because he knew it was expected of him by reason of his association with the enterprise, or because it would enhance his position or prestige within the enterprise.⁴

Tr. at 9174-76. The jury was not asked to identify which purpose it found had motivated Ferguson to kill Ayala.⁵

b. The Government's Opening Statement

In its opening statement, the Government did not tell the jury that it intended to prove that Ferguson committed the alleged violent acts for the purpose of gaining entry into Power Rules or for the purpose of increasing or maintaining his position in the enterprise. In fact, the Government appeared to concede that Ferguson had no position in the enterprise and sought none. The Government argued that his sole motivation was pecuniary gain. See Tr. at 89, 96 (Ferguson was not part of the day-to-day operations of Power Rules — he was an outside hit man hired by Guzman to kill Gregory Ayala).⁶

c. The Goverment's Summation

Nor did the Government appear to rely on the "gaining entrance" or "maintaining or increasing position" prongs during the trial, instead concentrating on the pecuniary benefit prong. In a lengthy closing argument and rebuttal, the Government never summarized any "gaining entrance" or "maintaining or increasing position" evidence or argued either of these prongs to the jury. See Tr. at 8269 (more limited involvement of Ferguson was that of a hired gun who became associated with Power Rules in the 1995 to 1996 time period); Tr. at 8912 (some witnesses never thought of Ferguson as being in Power Rules).⁷

d. The Rule 29 Argument

Nonetheless, in its opposition to Ferguson's Rule 29 motion, the Government argued that Luis Soto, a cooperating witness and former member of Power Rules, testified that Ferguson first became "associated with" Power Rules in 1996. Tr. at 1147, 2103. The Government also argued that there was sufficient evidence connecting Ferguson to the conspiracy to murder Ayala to support his conviction. In ruling on Ferguson's Rule 29 motion, I summarized this evidence. See Transcript of June 18, 1998 Conference, pp. 6-7. Such evidence included, inter alia, the 02 cab incident, the Jamaican hat incident, and the Albert Mercado shooting.⁸

In the 02 cab incident, both David Rivera and Rafael Lebron (members of Power Rules) testified that Miguel Guzman (leader of Power Rules) provided guns to David Rivera, Edwin Rivera (another member of Power Rules), Rafael Lebron and Ferguson and directed them to hire a gypsy cab in order to locate...