motive. See Scheidler, 510 U.S. at 259-60.
Therefore, even though the statute does not require the Government to prove that the Nasty Boys enterprise operated with a financial purpose, there was tremendous evidence from which a rational jury could conclude that not only did the Nasty Boys' activities affect interstate commerce, but that the Nasty Boys did exist for a financial purpose. It would be reasonable to conclude that the Nasty Boys sold thousands of dollars of illegal drugs every day for several years, that the main objective of the gang was to earn profits, and that the members of the enterprise committed numerous violent crimes to protect the Nasty Boys from competition. Accordingly, Narvaez's contentions in this area are without merit.
3. Acts Committed to Maintain or Increase Position in the Nasty Boys Enterprise
Narvaez challenges his convictions under § 1959, Violent Crimes in Aid of Racketeering Activity, which criminalize engaging in certain activities, such as murder, attempted murder, and conspiracy to commit murder "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." 18 U.S.C. § 1959(a) (emphasis added). "In order to establish that a crime of violence was committed 'for the purpose of . . . maintaining or increasing position in' a RICO enterprise, the government is required to prove . . . that the defendant's general purpose in committing the crime of violence was to maintain or increase his position in the enterprise." United States v. Thai, 29 F.3d 785, 817 (2d Cir. 1994); see also United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). A motive sufficient to satisfy the requirements of § 1959(a) exists if "the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership." Concepcion, 983 F.2d at 381; see also Thai, 29 F.3d at 817.
From the evidence presented against Narvaez at trial, a rational jury undoubtedly could conclude that Narvaez committed the violent crimes charged because he knew it was expected of him by reason of his membership in the Nasty Boys.
Testimony indicated that Narvaez was one of the leaders of the Nasty Boys and associated closely with Jose Muyet, the gang's leader. One of the enterprise's tenets was loyalty to the Nasty Boys, and that meant taking actions to preserve the group's operations. A rational jury could conclude that this tenet of loyalty made members believe that violence was expected of them as members of the Nasty Boys and that Narvaez therefore committed his violent crimes in order to maintain or increase his position in the enterprise.
Looking at the specific crimes of which the jury convicted Narvaez, evidence at trial showed that he met with Jose Muyet and Juan Machin to discuss the resolution of a problem with another gang by murdering Rivera, Pacheco and Cruz, and that Narvaez, after Machin's gun jammed, and at Machin's direction, repeatedly shot the victims until he was sure that they were dead. As to the drive-by shootings of the Wolfpack and the Sanchez brothers, the Nasty Boys determined that disputes with the victims were to be settled with violence, and Narvaez drove the car in both instances. Once the gang's leadership voted to kill fellow member Vega, Narvaez and the other leaders (including John Muyet, who voted to spare Vega) carried out their plan. Given the evidence of the structure of the Nasty Boys, and the circumstances surrounding these acts, a rational jury could conclude that Narvaez committed these crimes either because it was expected of him as a member of the Nasty Boys enterprise or in furtherance of his membership in the Nasty Boys. Accordingly, the rational jury could conclude that Narvaez acted to maintain or increase his position in the Nasty Boys, and Narvaez's challenge to his convictions under § 1959(a) must fail.
C. Narvaez's Challenges to His Narcotics Conspiracy Conviction
The jury convicted Narvaez of narcotics conspiracy (Count Thirty), in violation of 21 U.S.C. § 846. Narvaez challenges this conviction, claiming that the Government failed to prove the existence of a single, all-encompassing conspiracy. According to the defendant, the Government offered evidence only of multiple conspiracies. Narvaez therefore asks the Court to dismiss the narcotics conspiracy count against him.
"Whether the government has proven the existence of the conspiracy charged in the indictment and each defendant's membership in it, or, instead has proven several independent conspiracies is a question of fact for a properly instructed jury." United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995); see also, e.g., United States v. Sureff, 15 F.3d 225, 229 (2d Cir. 1994); United States v. Rosa, 11 F.3d 315, 340 (2d Cir. 1993). At the close of trial, the Court issued lengthy and detailed instructions to the jury concerning single versus multiple conspiracies. Defendant Narvaez raises no objections to the instructions in the instant motion. In Rosa, the Second Circuit pronounced:
We cannot disturb the jury's verdict if the evidence, viewed in the light most favorable to the government, could have led a reasonable juror to conclude beyond a reasonable doubt "(1) that the scope of the criminal enterprise proven fits the pattern of the single conspiracy alleged in the indictment, and (2) that the defendant participated in the alleged enterprise with a consciousness of its general nature and extent."
11 F.3d at 340 (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir. 1989)).
As stated earlier, the defendants do not claim that the Court did not properly instruct the jury in this case. The issue is therefore whether the evidence supports a finding that the alleged single conspiracy existed, and that Narvaez was a participant. As an initial matter, the essence of all conspiracies remains the agreement. The Government can prove a single conspiracy by showing only that the defendant "agreed to participate in what he knew to be a collective venture directed toward a common goal." United States v. Washington, 48 F.3d 73, 80 (2d Cir. 1995); see also Sureff, 15 F.3d at 229. The agreement need not be explicit, see Beech-Nut Nutrition Corp., 871 F.2d at 1191, and may be inferred from the defendant's participation in the alleged enterprise and consciousness of its general nature and extent. See United States v. Alessi, 638 F.2d 466, 473 (2d Cir. 1980). Co-conspirators need not have agreed on the essential details of the conspiracy, but must have agreed on the essential nature of the plan. See United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990). The goals of co-conspirators are not required to be congruent, but the goals may not be for cross-purposes. See id. Also, "a single conspiracy may encompass members who neither know one another's identities, nor specifically know of another's involvement." Sureff, 15 F.3d at 230.
"[A] single conspiracy is not transformed into multiple conspiracies by virtue of the fact that it may involve two or more phases or spheres of operation . . . ." Maldonado-Rivera, 922 F.2d at 963. Nor is a single conspiracy transposed into a multiple conspiracy simply by lapse of time, change of membership, or a shifting emphasis on its locale of operations. See United States v. Heinemann, 801 F.2d 86, 92 (2d Cir. 1986) (quoting United States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir. 1979)); see also United States v. Bueno-Risquet, 799 F.2d 804, 813 (2d Cir. 1986). A single conspiracy exists where there is "mutual dependence and assistance among the spheres . . . a common aim or purpose among the participants . . . or a permissible inference, from the nature and scope of the operation, that each actor was aware of his part in a larger operation where others performed similar roles equally important to the success of the venture." United States v. Bertolotti, 529 F.2d 149, 154 (2d Cir. 1975) (internal citations and quotation marks omitted).
Regarding narcotics conspiracies, the Second Circuit has observed that "most narcotics networks involve loosely knit vertically-integrated combinations." United States v. Panebianco, 543 F.2d 447, 452-53 (2d Cir. 1976). If a defendant participates in drug trafficking activities where he knew, or had reason to know, that others were involved in a broader project and that his own benefits probably depended on the success of the entire venture, the jury properly may infer that the defendant agreed to enter a single overarching conspiracy. Sureff, 15 F.3d at 230; see also United States v. Barnes, 604 F.2d 121, 155 (2d Cir. 1979). When advanced plans for the steady and continuous sale and trafficking of narcotics exist, the jury may presume that participants in the scheme know that they are part of a broader conspiracy. See United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993); see also United States v. Moten, 564 F.2d 620, 624-25 (2d Cir. 1977).
There is no question that a reasonable jury could conclude beyond a reasonable doubt that Narvaez is guilty of narcotics conspiracy. Evidence and testimony showed that the Nasty Boys were a highly-organized narcotics enterprise and Narvaez was one of the gang's leaders. The Nasty Boys existed to sell and traffic narcotics, particularly heroin. To say that a reasonable jury could find that the Nasty Boys enterprise was a single overarching conspiracy is an understatement. Finally, Narvaez was a leader within the Nasty Boys and was a close and trusted associate of Jose Muyet, the head of the gang. A rational jury certainly could determine from the evidence presented that Narvaez participated in the conspiracy with a consciousness of its general nature and extent.
Narvaez also challenges his narcotics conspiracy conviction on grounds that the Government did not prove that he was a "distributor" under the terms of the Controlled Substances Act (specifically 21 U.S.C. § 841). Instead, he claims that the Government proved only that he was a "retailer," and that the Court must dismiss the narcotics conspiracy count. This challenge has no merit whatsoever. Section 841(a) provides that "except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally - (1) to manufacture, distribute, or dispense or possess with intent to manufacture, distribute, or dispense, a controlled substance." § 841(a)(1). Within the Controlled Substances Act, "distribute" means "to deliver (other than by administering or dispensing) a controlled substance." § 802(11). Section 802(8) defines "delivery" as "the actual, constructive, or attempted transfer of a controlled substance." "Administer" means "the direct application of a controlled substance to the body of a patient or research subject by (A) a practitioner . . . or (B) the patient or research subject at the direction and in the presence of the practitioner." § 802(2). Section 802(10) defines "dispense" as "to deliver a controlled substance to an ultimate user or research subject . . . by a practitioner." "Practitioner" means "a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted by the United States . . . to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research."
The application of these definitions to Narvaez's conduct clearly shows that Narvaez's argument has no basis. The evidence presented at trial could lead a reasonable jury to conclude that Narvaez transferred controlled substances to other individuals. Since Narvaez does not fall into the definition of "practitioner," § 841 proscribes the conduct in which he engaged. Accordingly, his conviction stands.
D. Narvaez's Challenge to His Firearms Convictions
The jury convicted Narvaez of five violations of 18 U.S.C. § 924(c), which prohibits the use and carrying of a firearm during and in relation to any crime of violence or drug trafficking crime (Counts Thirty-three, Thirty-four, Thirty-seven, Forty-one, and Forty-two).
Narvaez asks the Court to dismiss the firearms counts because the weapon taken from him did not match any of the ballistics evidence collected from any of the crimes charged in the indictment. According to Narvaez, "This must give rise to an inference that the government's proof of use, in general, is flawed and tainted."
To gain a conviction under § 924, the government must show that a defendant either used or carried a firearm during or in relation to a crime of violence or a drug trafficking crime or aided and abetted another's use or carrying of a firearm during or in relation to a crime of violence or a drug trafficking crime. The Supreme Court clarified the "use" prong of § 924(c) in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), holding that § 924 "requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense. Bailey, 116 S. Ct. at 505 (emphasis in original).
The Government did not produce the firearm[s] allegedly used by Narvaez during the commission of his crimes, an omission upon which Narvaez relies heavily. However, recovery of the weapon[s] or its production at trial is not a requirement for a conviction under § 924(c). The Government has met its burden so long as the Government offers testimony from which a jury could infer that a defendant used a firearm in the predicate offense. See United States v. Patino, 962 F.2d 263, 265 (2d Cir. 1992); see also United States v. Castillo, 924 F.2d 1227, 1230 (2d Cir. 1991). At trial, numerous witnesses testified that Narvaez either personally discharged a firearm during the commission of the predicates or assisted others by providing them a firearm or driving them to the location where shootings occurred. While the gun seized from Narvaez did not match the ballistics evidence, this does not preclude a § 924(c) conviction. The voluminous trial testimony concerning Narvaez's participation in a number of crimes was sufficient to cause a reasonable jury to conclude that Narvaez committed the firearms offenses charged in the indictment.
E. Feliciano's Challenges to His RICO Convictions
The jury convicted Defendant Feliciano of violation of 18 U.S.C. §§ 1962(c) and (d), violation of RICO and conspiracy to violate RICO (Counts One and Two). Feliciano now moves the Court to set aside both convictions, contending that the Government failed to show that Feliciano participated in the "operation or management" of the Nasty Boys enterprise.
1. § 1962(c)
In Reves v. Ernst & Young, 507 U.S. 170, 183, 122 L. Ed. 2d 525, 113 S. Ct. 1163 (1993), the Supreme Court held that in order to prove that a defendant is guilty of racketeering in violation of § 1962(c), the Government must prove that he participated "in the operation and management of the enterprise." Although liability under § 1962(c) is not limited to "those with primary responsibility for the enterprise's affairs," the "operation and management" test requires that a defendant play "some part in directing the enterprise's affairs." Id. at 179. The Court noted that "an enterprise is 'operated' not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management," but it expressly declined to reach the question of "how far § 1962(c) extends down the ladder of operation." Id. at 184 & n.9.
The Second Circuit has clarified what satisfies the "operation and management" test. The defendant must have some role in directing the affairs of the organization, but this element of direction "requires less than 'significant' control over the enterprise." United States v. Viola, 35 F.3d 37, 41 (2d Cir. 1994). In Viola, the Second Circuit reversed the defendant's conviction when the jury instruction was erroneous and the evidence failed to show that he operated or managed the enterprise.
The entirety of the proof with respect to Formisano showed that, acting under Viola's instructions, he transported some stolen beer and lamps to buyers and returned most of the proceeds from the sales to Viola. In contrast with other defendants, Formisano's participation was limited to these two acts which were undertaken without the exercise of appreciable discretionary authority. Viola was the kingpin of the operation who was contacted by drug owners and who would decide how best to remove the drugs from the docks. Viola and the other defendants also decided to whom to sell stolen goods, and for how much. Formisano, on the other hand, was not consulted in the decision-making process and exercised no discretion in carrying out Viola's orders. There was no evidence that he was even aware of the broader enterprise.