United States v. Guerrero

Decision Date01 December 2011
Docket NumberNo. 09 Cr. 339 (RWS).,09 Cr. 339 (RWS).
Citation882 F.Supp.2d 463
PartiesUNITED STATES of America, Plaintiff, v. Antonio GUERRERO a/k/a “Tony,” and Edwin Maldonado, Defendants.
CourtU.S. District Court — Southern District of New York

OPINION TEXT STARTS HERE

Preet Bharara, United States Attorney for the Southern District of New York, by: Laurie Korenbaum, Esq., Marissa Molé, Esq., Aimee Hector, Esq., New York, NY, for the Government.

Law Office of Robert J. Krakow, P.C., by: Robert J. Krakow, Esq., Garden City, NY, for Defendant Antonio Guerrero.

Kelley Drye & Warren LLP, by: Don D. Buchwald, Esq., New York, NY, for Defendant Edwin Maldonado.

OPINION

SWEET, District Judge.

Both Antonio Guerrero and Edwin Maldonado, along with Omar Flores, were convicted on all counts on June 7, 2010, after a six-week jury trial. In a motion filed on September 3, 2010, Defendant Edwin Maldonado (Maldonado) moved, pursuant to Fed. R. Cr. P. 33, to set aside the jury's verdict and obtain a new trial. In a motion filed February 7, 2011, Defendant Antonio Guerrero (Guerrero) moved, pursuant to Fed. R. Cr. P. 29 and 33, for a judgment of acquittal or, in the alternative, to set aside the jury's verdict and obtain a new trial. Based upon the conclusions set forth below, the motions of both Maldonado and Guerrero are denied.

This case arises out of the prosecution of members of the Solid Gold drug organization for the September 3, 1994 murders of Livino Ortega (“Ortega”) and Fernando Garrido (“Garrido”); the October 9, 1994 murder of Leonard Overman (“Overman”) and non-fatal shooting of Alvino Wade (“Wade”); and the December 13, 1994 murder of Carmen Diaz (“Diaz”) and non-fatal shooting of Genero Rodriguez (“Rodriguez”). The shootings all took place in the Bronx, where Solid Gold sought to protect its retail crack cocaine business operating at 173rd Street and Boston Road. On October 14, 1994, following the first three murders, Leonardo Flores (“Leonardo”),1 also known as Robert Mercado, was arrested and charged with the murders of Ortega, Garrido and Overman. Leonardo was subsequently convicted following a 1996 trial in the Supreme Court of New York, Bronx County (the Bronx County trial”), but his conviction was overturned after two eyewitnesses recanted, and new evidence was discovered. Leonardo subsequently pleaded guilty in state court to the murders of Ortega and Garrido as an accessory.

Prior Proceedings

On April 7, 2009, a Grand Jury in the Southern District of New York returned and filed Indictment No. 09 Cr. 339 (the Indictment) against Guerrero, Maldonado, Omar Flores (Omar) and Johnny Cedeño (“Cedeño”). The Indictment alleged eight criminal counts, charging these four defendants in connection with three shootings that occurred in 1994 that resulted in the murder of four victims. Counts One and Two of the Indictment charged Guerrero with the murder of Ortega and Garrido on or about September 3, 1994, in violation of 21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2. Counts Three and Four charged Maldonado and Omar with the murder of Overman on or about October 9, 1994, in violation of 21 U.S.C. § 848(e)(1)(A), 18 U.S.C. § 924(j) and 18 U.S.C. § 2. Counts Five through Seven of the Indictment charged Maldonado, Omar and Cedeño with the non-fatal shooting of Rodriguez and the shooting death of Diaz on or about December 13, 1994, in violation of 18 U.S.C. § 1958, 21 U.S.C. § 848(e) and 18 U.S.C. § 2. Count Eight of the Indictment charged Maldonado with the same non-fatal shooting of Rodriguez and the shooting death of Diaz on or about December 13, 1994, in violation of 18 U.S.C. § 924(j) and 18 U.S.C. § 2.

On June 7, 2010, after a six-week jury trial, Maldonado was found guilty of Counts Three through Eight, Guerrero was found guilty of Counts One and Two and Omar was found guilty of Counts Five, Six and Seven. Charges remain pending against Cedeño, who was a fugitive and not tried with his co-defendants. Following the verdict, the Court granted a defense motion to extend the time to file post-trial motions to 90 days. On September 3, 2010, Maldonado filed a motion, pursuant to Fed. R. Cr. P. 33, to asset aside the jury's verdict and obtain a new trial. On February 7, 2011, Guerrero moved for a judgment of acquittal, pursuant to Fed. R. Cr. P. 29, or, in the alternative, for a new trial, pursuant to Fed. R. Cr. P. 33. Both motions were marked fully submitted on June 30, 2011.

Trial EvidenceA. The Solid Gold Crew

In the early to mid 1990s, Maldonado and Guerrero were members of a crew that ran a retail crack cocaine spot on Boston Road between 173rd and 174th Street in the Bronx. Ramon Flores (“Ramon”) led the Solid Gold organization with a close group of associates, including his brothers, Omar and Leonardo. The crew called itself “Solid Gold,” which was a reference to the gold caps the crew used on their crack vials. The organization began in 1992, when Ramon and Jimmy Feliz (“Feliz”) staked out the territory on Boston Road. Initial sales were slow. However, following Feliz's arrest in 1993, the crew obtained the assistance of Cedeño, who instructed the crew on a better way to cook the crack using rum and ammonia. Business boomed, and Solid Gold was making between $12,000 to $15,000 per day.

At its peak, the Boston Road spot sold approximately a kilogram of crack cocaine a week. Solid Gold employed managers who ran the day to day drug business, stash house workers who bagged up the crack in individual packets and bundles so it could be sold to Sold Gold's customers, and “pitchers,” who conducted the actual sales of crack cocaine at the drug spot. Guerrero worked steadily for approximately two years as a manager for Solid Gold. Maldonado worked for Solid Gold for a shorter period of time as a pitcher and sometimes manager.

During the course of its existence, Solid Gold maintained a number of stash houses which members used to store crack cocaine and numerous firearms. Guerrero's apartment, which was in a building directly across the street from the spot used to conduct the drug sales, was used to store firearms. Multiple witnesses testified that guns were kept in a bag at the bottom of one of Guerrero's closets. The guns included 9 millimeter semi-automatics, .357 revolvers and TEC–9s. Bullet proof vests and ammunition were also kept in Guerrero's apartment. The firearms were used by various members of Solid Gold, including Guerrero, Maldonado and the Flores brothers, to intimidate, threaten and murder Solid Gold's drug rivals. The evidence established several shootings, including Leonardo's 1993 shooting at drug selling competitors on Solid Gold's territory, the January 1994 murder of Feliz, two different rooftop shootings, the double murder of Ortega and Garrido in September 1994, the murder of Overman and non-fatal shooting of Wade in October 1994, and the murder of Diaz and non-fatal shooting of Rodriguez in December 1994.

B. The Murder of Jimmy Feliz on Boston Road and 173rd Street

On January 11, 1994, Jimmy Feliz (“Feliz”) was shot in front of 1685 Boston Road in the Bronx. Feliz had recently been released from prison and had been attempting to regain control of the crack spot he had previously run with Ramon, which was now being run by Solid Gold. Ramon and other members of Solid Gold, including Leonardo and Guerrero, agreed that Feliz should be killed so that they could continue to control the spot. Ramon, Leonardo and another member of Solid Gold arranged for a gunman by the name of Fila to commit the murder. They agreed to pay the hired assassin and provided him with a .357 firearm to commit the murder. Feliz was shot multiple times near a bodega on 173rd Street and Boston Road. Members of the Solid Gold crew, including Guerrero, pretended to be outraged at this murder so that no one would know they were responsible. After the murder, Solid Gold operated the drug spot exclusively.

C. The Murders of Ortega and Garrido on Minford Place

On September 3, 1994, Ortega, a crack dealer, and his friend, Garrido, were shot as they stood near a gas station on Minford Place and 173rd Street in the Bronx, within 100 feet of Solid Gold's drug spot. Both Ortega and Garrido died as a result of their gunshot wounds.

The Solid Gold crew disfavored Ortega, who was selling crack cocaine in close proximity to the Solid Gold spot and who was directly competing with Solid Gold for customers. Additionally, Ortega had sold crack of an inferior quality using Solid Gold's packaging, thereby hurting Solid Gold's brand. As a result, members of the Solid Gold crew had several confrontations with Ortega.

Solid Gold also had a dispute with Overman, a/k/a “Boo,” who had operated the Solid Gold drug spot before Solid Gold's predecessor, Feliz. Since being released from jail, Overman had made it clear that he wanted the drug spot back for himself and his partner, Wade. At one point, Ramon, Leonardo and Guerrero armed themselves with guns from Guerrero's apartment and prepared to shoot at Overman and Wade from the rooftop of 1669 Boston Road. Guerrero, who was on duty as manager that day, left to attend to the spot shortly before the Flores brothers shot at Wade as he walked below in the street. The attempt to shoot Wade was unsuccessful as he managed to evade the gunfire and get away.

After Overman assaulted Ricky, one of the Solid Gold workers, members of Solid Gold, including Miguel Padilla (“Padilla”), Ramon, Leonardo and Guerrero sought out Overman to kill him. Using a white van, the crew planned to have Padilla drive and Guerrero shoot Overman from the vehicle. When the crew was unable to find Overman, however, they returned to Boston Road. Once there, the crew decided that, since they were armed and prepared, they might as well take the opportunity to kill Ortega.

In preparation for the anticipated shooting of Overman, Guerrero had armed himself earlier that day with a 9 millimeter firearm, which he had retrieved from his apartment on Boston Road. Guerrero, his face obscured by the...

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