The opinion of the court was delivered by: CHIN
On May 1, 1997, after a four-week trial, a jury in this case convicted defendant Ricardo Morales on 15 counts and defendant Jesus Mendez on 17 counts of racketeering, conspiracy, armed robbery, assault, felony murder, and weapons violations. The jury found that the defendants and others, including Angel Diaz, who was found dead in his jail cell during the pendency of this case, had engaged in a series of crimes that reached back to 1987 and that ended in a shootout in the Bronx on March 14, 1996.
The shootout followed a carjacking of a black BMW by Diaz, Morales, and Mendez earlier that evening. When the BMW was eventually intercepted by New York City police officers at 183rd Street and the Grand Concourse, Diaz, Morales, and Mendez simultaneously jumped out of the car. Wielding a gun in each hand, Diaz began shooting at the police officers. One of the bullets struck Police Officer Kevin Gillespie in the leg, causing him to bend over. As he leaned forward, a second bullet struck him in the chest above his bullet-proof vest. That bullet proved to be fatal. His gun had never left its holster.
The jury found the defendants guilty of participating in a racketeering enterprise known as the "Park Avenue Boys" or "Webster Avenue Posse" that committed numerous robberies and violent crimes. Specifically, either one or both defendants were found guilty of racketeering, conspiracy, robbery, attempted murder, felony murder, and/or weapons violations in connection with a series of incidents involving a grocery store at 374 East 188th Street on December 22, 1987; a grocery store at 2537 Grand Concourse on September 21, 1988; a grocery store at 917 Castle Hill on September 25, 1988; a grocery store at 1721 East 174th Street on January 3, 1996; an individual in the vicinity of 34 1/2 West 183rd Street on February 25, 1996; an individual in the vicinity of 2721 Morris Avenue on March 9, 1996; an individual in the vicinity of 2717 Morris Avenue on March 13, 1996; and the carjacking and shooting on March 14, 1996.
A. Motion Pursuant to Fed. R. Crim. P. 29
Rule 29 provides that a court shall order the entry of judgment of acquittal "if the evidence is insufficient to sustain a conviction . . . ." Fed. R. Crim P. 29. A defendant bears a heavy burden in challenging a conviction based on insufficient evidence. United States v. Rivera, 971 F.2d 876, 890 (2d Cir. 1992); United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992). "A conviction must be upheld if, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in its favor, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Medina, 944 F.2d 60, 66 (2d Cir. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1991)), cert. denied, 503 U.S. 949 (1992). Thus, "'[a] jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it.'" Id. (quoting United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir.), cert. denied, 484 U.S. 957 (1987)).
2. Sufficiency of the Evidence
Defendants contend that the evidence presented at trial was insufficient in two respects. First, defendants argue that the government failed to prove the existence of the conspiracy charged in the indictment -- i.e., a single conspiracy beginning in 1987 and ending in 1996. Second, defendants argue that the government failed to prove the existence of the criminal enterprise charged in the indictment.
The jury in this case was given a multiple conspiracy charge. (See Tr. at 1411-13). In addition, the assertion that the evidence proved multiple conspiracies rather than the one conspiracy alleged in the indictment was vigorously argued by defense counsel at trial. (Id. at 34-39, 1252, 1286, 1291-95). I must assume, therefore, that the jury carefully considered this issue. Thus, since the question of "whether a scheme is one conspiracy or several is primarily a jury question . . . ," United States v. Crosby, 294 F.2d 928, 934 (2d Cir. 1961), cert. denied, 368 U.S. 984 (1962), ...