The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Defendants Pedro Narvaez ("Narvaez") and Antonio Feliciano ("Feliciano") were convicted with their codefendants on April 10, 1997, following a five-month jury trial, of various offenses arising out of their participation in the "Nasty Boys" criminal enterprise, as more particularly described below. Narvaez and Feliciano move the Court pursuant to the Federal Rules of Criminal Procedure, Rules 29, 33, and 34, seeking dismissal of the charges against them based on insufficiency of evidence, a new trial based on claims of Governmental misconduct and ineffective assistance of counsel, and an arrested judgment based on lack of Federal jurisdiction and that the charges were more properly brought in state court. Additionally, Narvaez has moved to have the Court recuse itself from hearing and deciding all post-trial motions, pursuant to Title 28, United States Code ("U.S.C."), section 455(a), based on claims that the Court can no longer make a fair and just determination with respect to these defendants. For the reasons stated below, the motions are denied.
According to the evidence adduced at trial, Jose Muyet, a/k/a "Raze," along with his brother John Muyet, a/k/a "Buddha," operated a drug gang known as the Nasty Boys in the Bronx, New York, for a period of several years. The gang operated from an apartment building known as the Airborne building, and sold both heroin and crack. The Nasty Boys resorted to violence quickly and often to maintain order, stifle competition, and protect their business. Narvaez, a/k/a "Basic", was a member of the Nasty Boys, and participated in many of the gang's activities. Feliciano, a/k/a "Tony", a/k/a "Guess", a/k/a "Guest", was not a member of the gang, in the sense that he did not sell drugs. Feliciano, Jamie Rodriguez, a/k/a "Jay", and Steven Camacho, a/k/a "Camachito", a/k/a "Spank", a/k/a "Spanky", were hired killers who accepted contracts to kill from the Nasty Boys. The Muyets referred to them as the "freelancers."
The jury convicted Narvaez of violating the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count One of the Indictment),
conspiracy to violate RICO, 18 U.S.C. § 1962(d) (Count Two), committing violent crimes in aid of racketeering, 18 U.S.C. § 1959 (Counts Seven to Twelve, Seventeen to Twenty, Twenty-eight, and Twenty-nine), narcotics conspiracy, 21 U.S.C. § 846 (Count Thirty), and illegal use and carrying of a firearm, 18 U.S.C. § 924(c) (Counts Thirty-three, Thirty-four, Thirty-seven, Forty-one, and Forty-two). The jury convicted defendant Feliciano of the RICO charges (Counts One and Two),
committing violent crimes in aid of racketeering (Counts Twenty-one, Twenty-three, and Twenty-five to Twenty-seven), and illegal use and carrying of a firearm (Counts Thirty-eight and Forty).
Defendant Narvaez moves for the Court to recuse itself from the consideration of all post-trial motions submitted by the defendants. 28 U.S.C. § 455(a) provides that "any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In his brief, Narvaez claims that "the Court's patience was strained on many occasions," and that "the record contains statements by the Court which give rise to a concern on the part of Mr. Narvaez and his codefendants that they will not receive a fair and impartial hearing" on these motions. Narvaez also alleges that the Court repeatedly focused upon the behavior and conduct of the defendants. Specifically, Narvaez points to a statement by the Court that "this is not the first time that the Court has had concern with the conduct of these defendants." Narvaez argues that these statements and events create a reasonable basis to question the Court's impartiality, and asks for the Court's recusal.
As the United States Court of Appeals for the Second Circuit explained, "the substantive standard for recusal is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned." Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987); see also United States v. Pitera, 5 F.3d 624, 626 (2d Cir. 1993). In reviewing a recusal motion, therefore, a court must proceed by "examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1989).
The Second Circuit suggests broad latitude in a district judge's review of a recusal motion. As the Court observed, "The decision whether to grant or deny a recusal motion . . . is a matter confided to the district court's discretion," Apple, 829 F.2d at 333, and the district court will be reversed only for abuse of that discretion. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Thus, the Drexel court provided a cogent analysis regarding the discretion afforded to district judges in recusal motions:
The judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion. In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case. Litigants are entitled to an unbiased judge, not to a judge of their choosing.
The United States Supreme Court most recently addressed these considerations in the context of section 455(a) in Liteky v. United States, 510 U.S. 540, 127 L. Ed. 2d 474, 114 S. Ct. 1147 (1994). In Liteky, the defendants in a criminal case claimed that the law required recusal of the assigned judge because the judge had displayed "impatience, disregard for the defense and animosity" toward the defendants in a prior trial before the same judge. 510 U.S. at 542 (internal quotation marks omitted). In rejecting the defendants' claim the Court stated:
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible . . . . Not establishing bias or partiality, however, are expressions of impatience, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration - even a stern and short-tempered judge's ordinary efforts at courtroom administration - remain immune.
Id. at 555-56 (emphasis in original).
In his motion asking for the Court to recuse itself, Narvaez claims that the Court's patience was strained on numerous occasions during the trial and that the Court made statements that call the Court's impartiality into question. As noted supra, the Second Circuit standard for recusal is that "a reasonable person, knowing all the facts, would conclude that the court's impartiality would reasonably be questioned." Apple, 829 F.2d at 333. Further, Liteky requires a court facing an impartiality challenge based on judicial remarks made during trial, and not based on any extrajudicial source, to recuse itself only if the statements at issue "reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." 510 U.S. at 555. As neither Narvaez nor any other defendant claims that the Court maintained or revealed any opinions which derived from an extrajudicial source, the question is whether this Court has shown such a high degree of antagonism to the defendants as to make fair judgment impossible.
The Court's statements and conduct that give rise to the defendants' concern do not satisfy the standards for recusal set by the higher courts. While the Court indeed faced occasional times over the five-month trial period when its patience with the defendants (as well as with the Government) was tested, there is nothing in the record, or outside of the record, which can be said to show any "deep-seated favoritism or antagonism" toward these defendants. Id. Accordingly, a thorough review of the entire record of the trial demonstrates that there exists no basis upon which a reasonable person could question the impartiality of the Court. Therefore, the Court will not recuse itself from the consideration of defendants' post-trial motions. "A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is." Drexel, 861 F.2d at 1312.
When a defendant moves for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, the Court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972)); accord United States v. Bloome, 784 F. Supp. 23, 25 (E.D.N.Y. 1992). The Court must resolve all reasonable inferences in favor of the Government, see Mariani, 725 F.2d at 865, and resolve all issues of credibility in favor of the jury's verdict. See, e.g., United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed on the motion, the defendant[s] must persuade the Court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir.), cert. denied, 117 S. Ct. 1713 (1997) (quoting United States v. Taylor, 92 F.3d 1313, 1333 (2d Cir. 1996), cert. denied, 136 L. Ed. 2d 717, 117 S. Ct. 771, 117 S. Ct. 772 (1997)) (internal quotation marks omitted).
B. Narvaez's Challenges to His Racketeering Convictions
1. "Pattern of Racketeering Activity"
Defendant Narvaez argues in his motion that the Court should grant him a judgment of acquittal on the RICO and RICO conspiracy counts of the indictment (Counts One and Two), despite the jury's verdict to convict. Narvaez claims that the Government failed to prove any relatedness between the racketeering acts that served as the predicates for his RICO convictions, and therefore failed to prove that Narvaez engaged in a "pattern of racketeering activity," as required by the RICO statute, 18 U.S.C. §§ 1962(c), (d).
A pattern of racketeering activity, as defined by the RICO statute, requires at least two racketeering acts committed by the defendant within the relevant limitations period.
18 U.S.C. §§ 1961(1), 1961(5), and 1962(c). However, the Supreme Court, in interpreting RICO, stated "that while two acts are necessary, they may not be sufficient." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985); see also United States v. Alkins, 925 F.2d 541, 551 (2d Cir. 1991). In a later interpretation of RICO, the Supreme Court stated that "to prove a pattern of racketeering activity . . . a prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989) (emphasis in original); see also Alkins, 925 F.2d at 551; United States v. Minicone, 960 F.2d 1099, 1106 (2d Cir. 1992).
To satisfy the first prong of the H. J. Inc. test, that the predicate acts are related, the Government must show both that the racketeering acts relate to each other ("horizontal relatedness"), and that the racketeering acts relate to the enterprise ("vertical relatedness"). See United States v. Long, 917 F.2d 691, 697 (2d Cir. 1990); see also Minicone, 960 F.2d at 1106. Horizontal relatedness exists if the racketeering acts "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." H. J. Inc., 492 U.S. at 240 (quoting 18 U.S.C. § 3575(e) (now repealed)); see also United States v. Simmons, 923 F.2d 934, 951 (2d Cir. 1991); United States v. Wong, 40 F.3d 1347, 1374 (2d Cir. 1994). Additionally, "Two racketeering acts that are not directly related to each other may nevertheless be related indirectly because each is related to the RICO enterprise." United States v. Indelicato, 865 F.2d 1370, 1383 (2d Cir. 1989).
The Government may prove the required vertical relationship between the predicate acts and the RICO enterprise by showing either: (1) that the offense related to the activities of the enterprise; or (2) that the defendant was able to commit the offense solely because of his position in the enterprise. See Minicone, 960 F.2d at 1106. The offense need not be in furtherance of the organization to be an act related to the activities of the enterprise. See United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997); see also United States v Thai, 29 F.3d 785, 815 (2d Cir. 1994).
The second prong of the H. J. Inc. test requires that the racketeering predicates amount to or pose a threat of continued criminal activity. The concept of continuity is both closed and open-ended, "referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition." H. J. Inc., 492 U.S. at 241. The Government may show closed-ended continuity by proving a series of related predicate acts extending over a substantial period of time. See id. at 242. What constitutes a "substantial period of time" is a concept that by nature is incapable of a rigid definition, but predicate acts which extend only over a few weeks or months, and do not threaten future criminal conduct, do not satisfy the continuity requirement of RICO. See id.
The requisite continuity is present, though, if the Government establishes that the predicates pose a threat of continued criminal activity. In H. J. Inc., the Supreme Court held that:
the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity's regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exists for criminal purposes.
492 U.S. at 242-43. The Second Circuit emphasized, "Where the enterprise is an entity whose business is racketeering activity, an act performed in furtherance of that business automatically carries with it the threat of continued racketeering activity." Indelicato, 865 F.2d at 1383 (emphasis added). The Government therefore satisfies the continuity prong of the H. J. Inc. test for establishing a "pattern of racketeering activity" if it proves that a defendant committed acts in furtherance of a enterprise that exists for criminal purposes.
Applying these standards to the evidence produced during the Nasty Boys' trial, it is clear that a rational jury could find beyond a reasonable doubt that the predicate acts attributed to Narvaez were horizontally related, vertically related, and continuous. The rational jury therefore could conclude that Narvaez had engaged in a "pattern of racketeering activity," as RICO convictions under §§ 1962(c) and (d) require.
Looking first at horizontal relatedness, there are a number of connections that a rational jury could make that would lead to the conclusion that the acts interrelate. First, there is a similarity of participants. of the thirteen predicate acts which served as the basis for Narvaez's RICO conviction under Count One, Narvaez committed all thirteen with Jose Muyet. Narvaez acted with Julio Matias and Juan Machin in six of the offenses with Narvaez; specifically, the murders of Angel Luis Rivera, Nelson Pacheco and Antonio Cruz, and the attempted murder of members of the Wolfpack. Also, John Muyet and Robert Corona participated with Narvaez and Jose Muyet in the murders of Carlos and Raymond Sanchez and the murder of Radames Vega. Luis Quinones played a role in the murders of the Sanchez brothers as well. Finally, all of the above named gang members, in addition to numerous others, participated in the narcotics conspiracy (Count Thirty).
Finally, the rational jury also could find a similarity in the victims of Narvaez's acts. Each of the victims was someone that the Nasty Boys felt was a threat to their drug enterprise. In sum, there was ample evidence introduced at trial that could lead a rational jury to conclude that the predicate acts committed by Narvaez were related events.
Turning next to the requirement of vertical relatedness, there is more than sufficient evidence to allow a rational juror to conclude that Narvaez's acts satisfied the requirements of the RICO statute. Vertical relatedness may be satisfied by a showing that the predicate offenses related to the activities of the enterprise. See Minicone, 960 F.2d at 1106. Here, there can be no question that a rational jury could decide that Narvaez's acts related to the activities of the Nasty Boys enterprise. Each of the crimes that served as a basis for Narvaez's RICO convictions could reasonably be described as having been committed to protect the Nasty Boys' drug business and to solidify their control over the neighborhoods in which they operated. Specifically, the jury could reasonably conclude from the evidence that the Nasty Boys killed Rivera, Pacheco and Cruz in order to avoid a dispute with another drug gang; shot at members of the Wolfpack to settle a dispute over neighborhood control; murdered the Sanchez brothers to eliminate competition; and killed Vega so that fellow gang members could retain a higher portion of the Nasty Boys' profits.
Also, the Government may satisfy the vertical relatedness requirement by a showing that the defendant was able to commit the predicate offenses solely by virtue of his position in the enterprise. See Minicone, 960 F.2d at 1106. A rational jury could find that Narvaez's position in the Nasty Boys enabled him to commit the thirteen predicate offenses that led to his RICO convictions. It would be reasonable to conclude that the gang did not simply allow anyone to commit these heinous acts, only those close associates who had earned the trust of the group.
Finally, a rational jury could determine that Narvaez's acts revealed a threat of continued racketeering activity. It would be reasonable to conclude that the Nasty Boys existed solely for a racketeering purpose, and acts performed in furtherance of that purpose automatically carry the threat of continued activity. See Minicone, 960 F.2d at 1106. A reasonable interpretation of the evidence is that the Nasty Boys existed for several years with the express purpose of making money through the illegal sale of narcotics, particularly heroin. During this time, and in furtherance of the racketeering purposes of the enterprise, Narvaez and his fellow gang members committed many violent crimes, demonstrating a threat of continued racketeering activity.
Narvaez next argues that the Court must set aside his RICO convictions because "the Government failed to prove that the racketeering enterprise alleged in the indictment was motivated by economic gain." The Supreme Court has held, however, that "nowhere in either § 1962(c) or the RICO definitions in § 1961 is there any indication that an economic motive is required." National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 257, 127 L. Ed. 2d 99, 114 S. Ct. 798 (1994). The Court based its ruling on the language of § 1962(c), which makes it unlawful for "any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate . . . in the conduct of such enterprise's affairs through a pattern of racketeering activity . . . ." The Court then determined that "an enterprise surely can have a detrimental influence on interstate or foreign commerce without having its own profit-seeking motives." Id. at 258. In Scheidler, the Court expressly overruled a Second Circuit case, United States v. Bagaric, 706 F.2d 42 (2d Cir. 1983), which had held that a conviction under § 1962(c) required a showing of economic 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 ...