presented at trial, a reasonable jury could clearly conclude that Sosa was guilty of narcotics conspiracy.
C. Sosa's Claim of Spillover Prejudice
Finally, Sosa argues that the Court must set aside his narcotics conspiracy conviction because of the spillover prejudice he claims he suffered from the evidence introduced at trial of violent crimes committed by his codefendants. Despite the opportunity, Sosa did not move pre-trial for a severance, but only now comes forward with this protestation following his conviction.
"A defendant who claims that he is entitled to a new trial because of prejudicial spillover bears an extremely heavy burden." United States v. Villegas, 899 F.2d 1324, 1347 (2d Cir. 1990); see also United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988). To determine whether a defendant has suffered unfair spillover prejudice, the Court will look to a number of factors. One consideration is the extent to which a court, at a single defendant trial, would nonetheless admit the evidence presented at the joint trial because of the conspiratorial nature of the alleged activity. See Villegas, 899 F.2d at 1347; see also United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984). Another consideration is whether the court instructed the jury to assess the evidence against each defendant separately from the evidence against other defendants. See Villegas, 899 F.2d at 1347; see also United States v. Carson, 702 F.2d 351, 367 (2d Cir. 1983). The final consideration is whether there is an indication that the jury heeded these instructions. See Villegas, 899 F.2d at 1347; see also United States v. Casamento, 887 F.2d 1141, 1153 (2d Cir. 1989). An example of such an indication is different verdicts for different defendants. See Villegas, 899 F.2d at 1347. The Court evaluates these factors in totality, and no one factor is dispositive. See id.
The Government charged Sosa, along with his codefendants, with violations of RICO. To prove a RICO case, the Government must show the existence of an enterprise and a pattern of racketeering activity. In a case evaluating a similar claim of spillover prejudice, the Second Circuit observed that "proof of these elements may well entail evidence of numerous criminal acts by a variety of persons, and each defendant in a RICO case may reasonably claim no direct participation in some of those acts." United States v. DiNome, 954 F.2d 839, 843 (2d Cir. 1992). The evidence introduced at trial which showed the routine resort to vicious crimes was relevant to the charges against Sosa because it tended to prove the existence and nature of the RICO enterprise, the Nasty Boys. Also, since the Nasty Boys were a criminal enterprise, an act performed in furtherance of the group automatically carries with it the threat of continued racketeering activity. See United States v. Indelicato, 865 F.2d 1370, 1383-84 (2d Cir. 1989). The same evidence, therefore, was relevant to show a pattern of racketeering activity.
The activity which led to criminal charges against Sosa was very much conspiratorial in nature. The jury acquitted Sosa of the RICO counts, and convicted him of narcotics conspiracy. Although the jury acquitted the defendant of some of the charges, the Court properly admitted the evidence, and the majority would have been so admitted in a separate trial of Sosa alone, due to the elements which the Government must prove in order to gain a RICO conviction.
Analysis of the other considerations for spillover prejudice also lead to the conclusion that Sosa suffered no prejudice as a result of the evidence introduced concerning acts committed by others. The Court carefully instructed the jury to "compartmentalize" the evidence introduced. That is, the jury considered the evidence as to each defendant individually.
Finally, the jury clearly heeded the Court's instructions. The jury acquitted Sosa of a number of charges listed in the indictment. He was found not guilty of the RICO counts, four counts of violent crimes in aid of racketeering, and the firearms charges. The jury clearly weighed the evidence against each defendant for each charge, and arrived at its verdicts. Sosa, who at no time asked for a separate trial, did not suffer spillover prejudice sufficient to warrant action by the Court to set aside the jury's verdicts. The Court denies Sosa's motion to set aside his narcotics conspiracy conviction.
III. Sosa's Challenge to His Firearms Conviction
Sosa next argues that the evidence presented at trial was insufficient to sustain his conviction under 18 U.S.C. § 924(c), use or carrying of a firearm in relation to a drug trafficking crime. The key word in the statute for the purposes of Sosa's motion is "or". An individual violates § 924(c) through either "use" or "carrying" of a firearm in relation to a drug trafficking offense. See United States v. Canady, 126 F.3d 352, 357 n.2 (2d Cir. 1997), cert. denied, 140 L. Ed. 2d 148, 118 S. Ct. 1092, 1998 U.S. LEXIS 1234 (U.S. Feb. 23, 1998)(No. 97-7397). The meaning of "carrying" is self-evident. In Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 505, 133 L. Ed. 2d 472 (1995), the Supreme Court held that liability under the "use" prong of § 924(c) "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." The Court stated that its holding was logical because it preserved separate and distinct meanings for "use" and "carry".
Under the interpretation we enunciate today, a firearm can be used without being carried, e.g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.
116 S. Ct. at 507.
Juan Machin testified that he saw Sosa carrying a firearm while acting as a manager of the Nasty Boys drug operation, giving drugs to the pitcher (person who sold the drugs to the buyers) in the lobby of 1314 Seneca Avenue, a distribution spot of the Nasty Boys. Additionally, there was testimony that Sosa was the night shift manager of the Nasty Boys, and that managers were responsible for handing the drugs and guns over to the next shift manager. Based on this evidence, a reasonable jury obviously could conclude beyond a reasonable doubt that Sosa "carried" a firearm in relation to a drug trafficking offense. Therefore, liability under § 924(c) is appropriate. Because the statute only required the Government to prove evidence sufficient to show "carrying" or "use" of a firearm, there is no need to determine whether a reasonable jury could determine that Sosa "used" a firearm in relation to drug trafficking activity. The Court denies Sosa's motion to set aside his firearms conviction.
For the reasons stated above, the defendant's motion pursuant to Rule 29 of the Federal Rules of Criminal Procedure is HEREBY DENIED.
New York, New York
February 20, 1998
Peter K. Leisure