U.S. v. Pimentel

Citation346 F.3d 285
Decision Date08 October 2003
Docket NumberDocket No. 01-1362(CON).,Docket No. 01-1333(L).
PartiesUNITED STATES of America, Appellee, v. Joanna PIMENTEL, also known as "La Madrina," George Viruet, Defendants-Appellants, Elvin Cruz; Jorge Aponte, also known as "Cano," also known as "John Doe," Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Jeremy Gutman, New York, NY, for Defendant-Appellant Joanna Pimentel.

Barry Gene Rhodes, Brooklyn, NY, for Defendant-Appellant George Viruet.

Catherine Friesen, Assistant United States Attorney for the Eastern District of New York (Susan Corkery, Assistant United States Attorney, Pamela Chen, Assistant United States Attorney, and Roslynn R. Mauskopf, United States Attorney, of counsel), for Appellee.

Before: MINER and CABRANES, Circuit Judges, and DRONEY, District Judge.*

MINER, Circuit Judge.

These appeals arise from the January 9, 1995 gang-related murder of Galiat Santiago. Instead of being tried in New York State Supreme Court for violating the New York Penal Law, defendants-appellants Joanna Pimentel and George Viruet (collectively, the "Defendants") were tried by a jury and convicted in the United States District Court for the Eastern District of New York (Johnson, J.). The Defendants were charged with violations of various federal laws, including the Violent Crimes in Aid of Racketeering ("VCAR") statute, 18 U.S.C. § 1959. VCAR provides for the federal prosecution of violent crime "when those allegedly responsible participated in the violent crime in order to gain, maintain, or increase a position in an enterprise engaged in racketeering activity." United States v. Feliciano, 223 F.3d 102, 107 (2d Cir.2000). The specific counts of conviction included: (1) conspiracy to murder Santiago for the purpose of maintaining a position in a racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(5); (2) murder of Santiago in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2; (3) use of a firearm during and in relation to crimes of violence (i.e., the conspiracy to murder Santiago and the murder of Santiago), in violation of 18 U.S.C. §§ 924(c)(1) and 2; and (4) murder of Santiago through the use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(j)(1) and 2. Each of the Defendants was sentenced principally to a mandatory term of life imprisonment.

On appeal, the Defendants do not deny that they participated in Santiago's murder. Rather, they principally argue that their convictions cannot stand because (1) the evidence presented at trial was insufficient to support a guilty verdict, and (2) in both its charge to the jury and its response to a note from the jury, the District Court declined to define the specific elements of the underlying racketeering acts alleged in the indictment, i.e., murder, attempted murder, and drug trafficking. For the reasons set forth below, we find that (1) the evidence was sufficient to support the Defendants' convictions, and (2) the District Court's jury instructions, while deficient, were not deficient enough to warrant a new trial given the quality and quantity of the evidence underlying the racketeering acts.

BACKGROUND

At the trial below, both the Government and the Defendants called witnesses and presented other evidence regarding the purpose and activities of the Netas and the acts alleged in the indictment. We summarize here that testimony and evidence, which of course we view in the light most favorable to the Government. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Dhinsa, 243 F.3d 635, 648-49 (2d Cir. 2001).

I. Defendants' Membership in the Netas

The Defendants and Santiago were members of the Netas, a gang that originated in the prison system in Puerto Rico. The Netas is largely made up of ex-convicts and members of the prison population throughout New York and New Jersey. The organization consists of various chapters, some of which allegedly are engaged in many acts of community service, notably helping senior citizens and the homeless, cleaning up parks, and assisting charities. In addition, the Netas claim to help ex-convicts live positive, crime-free lives and to ensure the fair treatment of prisoners.

In furtherance of its goals, the Netas maintains a complex, hierarchical structure and system of governance with strict rules of behavior that are brutally enforced. The Netas allegedly forbids its members from participating in any criminal activities, including the sale and use of narcotics, notwithstanding the fact that individual members do not always adhere to these rules. The Netas has developed its own "justice system" to enforce its behavioral rules. When a member is alleged to have violated one of these rules, a trial of sorts is held. Members who have been "convicted" of the "crimes" with which they were charged have been sentenced to verbal reprimands, loss of rank, physical assaults, and sometimes death.

Since July 1994, Pimentel has been the "Madrina" or "godmother" of the New York Netas. As the Madrina, she is responsible for coordinating efforts to communicate with prison officials regarding the treatment of inmates, to protest prison conditions, and to make sure that inmates receive appropriate medical care. Viruet was the president of the Jamaica chapter of the Netas and one of Pimentel's lieutenants. When Pimentel became the Madrina, the Netas members in Brooklyn, New York were divided among loosely organized chapters that were governed by Santiago, a president of one of those chapters. During 1994, at the direction of imprisoned members of the Netas leadership, Pimentel and Manuel Garcia (another Netas member) allegedly worked together in an attempt to coordinate and pacify the Netas chapters in Brooklyn, as well as to eliminate the sale and use of narcotics by those chapters. In the Fall of 1994, Pimentel established a committee called the "Junta Central" to govern the various Netas chapters in New York City. Santiago was not invited to join this committee.

II. The Attempt to Murder Santiago

In 1994, Pimentel and Garcia began investigating allegations that Santiago had raped several female Netas members. Under the Netas' rules of conduct referenced above, rape was punishable by death. According to Garcia, who testified pursuant to a cooperation agreement with the Government, in August or September of 1994 (before Pimentel established the Junta Central), she ordered him to "get rid of [Santiago]." Garcia testified that he unsuccessfully attempted to kill Santiago by obtaining two guns and then spending one evening looking for him in the area of Sunset Park, "where he used to hang out at nighttime." Having failed to locate Santiago on this one evening, Garcia abandoned his mission.

III. The Murder of Santiago

After forming the Junta Central, Pimentel decided to put Santiago "on trial" for the alleged rapes of Netas members. Following his release from prison in November 1994, defendant Jorge Aponte, a member of the Netas, assisted Pimentel and Garcia in conducting a "pretrial" investigation. As part of this investigation, Aponte interviewed Santiago with regard to the allegations. Following this investigation, Santiago was "tried" by the Netas before a "jury" consisting of all the presidents of the various Netas chapters, which "convicted" him and, after deciding not to execute him, "sentenced" him principally to a physical beating and the loss of his rank. After receiving his beating, Santiago left the meeting visibly upset, and on his way out began making threats against Pimentel and the Netas. Pimentel ordered that Santiago be watched. Shortly thereafter, Santiago, carrying a revolver, angrily told Aponte that he was going to kill Pimentel and Garcia. Aponte then paged Garcia to report Santiago's threat.

In response to Santiago's threats, Pimentel ordered his murder. On the evening of January 9, 1995, Viruet drove Garcia and Aponte to Santiago's house. While Viruet waited in the car, Aponte called out to Santiago to come to the door. When Santiago came to the door, Garcia shot and killed him. Garcia and Viruet then drove to Pimentel's house and informed her that Santiago was dead.

There was conflicting testimony concerning Pimentel's role and motives in Santiago's murder. Aponte testified that Garcia called him back after receiving his page, went to Aponte's house, and the two of them went out looking for Santiago. But, according to further testimony by Aponte, it was during this visit that Pimentel told Aponte that Santiago "had a lot of people scared" and "had to be whacked because [Pimentel] had a child." Aponte then agreed with Pimentel that Santiago should be killed and told her "okay, green light."

Garcia's testimony also suggested Pimentel's involvement. He testified that it was Pimentel, not himself, who returned Aponte's page and that Pimentel told Aponte and others about Santiago's threats. According to Garcia, Pimentel said: "You know what you have to do. [Santiago has] to go." Garcia testified that, when he and Aponte went looking for Santiago, Aponte was fully aware of the reasons why they were looking for him and that Aponte had bragged about his good aim in an effort to convince Garcia to let him shoot Santiago. Garcia further testified that, when Viruet and another Netas member named Michael Sisson arrived at the apartment, Pimentel "told them what happened, what I was going to do," and that she "wanted them to go with me." Garcia also testified that, while Viruet was driving them away from the murder scene, Garcia received a page from Pimentel indicating that she knew the mission had been completed. Garcia claimed that, when he arrived back at Pimentel's apartment, the people there were "celebrating," and Pimentel indicated that she had already heard about what had happened. When others tried to talk to Garcia about...

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