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March 4, 1998

UNITED STATES OF AMERICA, - v - JOSE MUYET, a/k/a "Raze," et al., Defendants.

The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 On April 10, 1997, Defendants John and Jose Muyet and their three codefendants were convicted, following a five-month jury trial, of various offenses arising out of their participation in the so-called "Nasty Boys" criminal enterprise. The Muyets now move the Court pursuant to Rules 29, 33, and 34 of the Federal Rules of Criminal Procedure. They seek 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 a claim that the charges against them more properly should have been brought in state court. Additionally, the Muyets have 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."), sections 144 and 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, selling both heroin and crack. The Nasty Boys resorted to violence quickly and often to maintain order, stifle competition, and protect their business.

 The jury convicted Jose Muyet of violating the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (Count One of the Indictment), *fn1" 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 Three through Twenty-three and Twenty-five through Twenty-nine), narcotics conspiracy, 21 U.S.C. § 846 (Count Thirty), and use and carrying of a firearm, 18 U.S.C. § 924(c) (Counts Thirty-one through Thirty-five and Thirty-seven through Forty-two). The jury convicted defendant John Muyet of the RICO charges (Counts One and Two), *fn2" violent crimes in aid of racketeering (Counts Fifteen through Twenty-four, Twenty-eight, and Twenty-nine), narcotics conspiracy (Count Thirty), and use and carrying of a firearm (Counts Thirty-six through Thirty-nine, Forty-one and Forty-two).



 The Muyets move for the Court to recuse itself from the consideration of all post-trial motions submitted by the defendants. Title 28, U.S.C. § 144 provides for disqualification "whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice . . . against him." 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, John Muyet claims that the Court "cannot make a fair and impartial decision" on these motions. Specifically, John Muyet points to a statement by the Court that "you don't like to pay attention when you are hearing something you don't want to hear that seems to be with your attitude." John Muyet also alleges that the Court disparaged the defense on a number of occasions. John Muyet specifically points to two such instances. The first involved the testimony of John Muyet's mother, who testified through an interpreter. John Muyet alleges that the Court's observation that his mother may have more proficiency of English than she pretended suggested bias against the defense. *fn3" The second instance occurred when the Court commented that a defense lawyer "conveniently" overlooked a portion of a witness's testimony while cross-examining that witness. The Muyets argue that these statements create a reasonable basis to question the Court's impartiality, and asks for the Court's recusal. Cf. MacDraw, Inc. v. CIT Group Equipment, Inc., 138 F.3d 33 at 38 (2d Cir. 1998)(Winter, C.J.)("Appellants correctly note that Judge Chin did express negative concerns about the merits of MacDraw's case and the conduct of appellants in litigating it. However, such remarks are common and often important to a trial judge's administration of a case. Although they may occasionally wound counsel's pride, they can be informative and helpful to counsel who are not hypersensitive.")

 As the United States Court of Appeals for the Second Circuit has 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). Therefore, in reviewing a recusal motion, 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.

 861 F.2d at 1312.

 The United States Supreme Court most recently addressed these considerations in the context of sections 144 and 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. Id. at 542 (internal quotation marks omitted). In rejecting the defendants' claims 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 their motion asking the Court to recuse itself, the Muyets claim 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 the Muyets do not claim 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 defendants' concern do not satisfy the applicable standard for recusal. While the Court indeed faced occasional instances 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, nor outside of the record, which can be said to demonstrate any "deep-seated favoritism or antagonism" toward defendants. 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.


 A. Legal Standard

 When a defendant moves for judgment under 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, 137 L. Ed. 2d 837 (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. Claims by Jose Muyet

 Jose Muyet challenges his convictions under § 1959, Violent Crimes in Aid of Racketeering Activity, which criminalizes 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. By its ordinary usage, the phrase "for the purpose of . . . maintaining or increasing position in" the enterprise means that the defendant had to have held a position in the enterprise and committed the charged underlying crime of violence with a motive of retaining or enhancing that position. See Concepcion, 983 F.2d at 381.

 The jury convicted Jose Muyet of twenty-six counts of violent crimes in aid of racketeering, in violation of § 1959(a). *fn4" Based on the totality of the evidence presented against Jose Muyet at trial, a rational jury undoubtedly could conclude that Jose Muyet committed the violent crimes charged because it was expected of him as a leader of the Nasty Boys or in furtherance of his membership in the Nasty Boys.

 Jose Muyet challenges the sufficiency of the evidence relating to the murder of Herman Figueroa. The evidence presented at trial showed that at the time of the Figueroa murder, Jose Muyet was a manager in the enterprise who reported to then-leader Adrian Lopez, a/k/a "Big Daddy," and was responsible for the drug sales at 1314 Seneca Avenue. Figueroa sought to take that spot to use for his own drug sales. Muyet informed Luis Quinones that there was a "hit" out on Figueroa "because he (Figueroa) wanted to take 1314 over." (Tr. 3527-28). Quinones volunteered to take the contract, obtained Jose Muyet's permission, and agreed to a payment price from Muyet. On the day of the killing, Jose Muyet gave the order for Quinones to begin his attack on Figueroa.

 Jose Muyet claims that the evidence shows only that Figueroa was murdered "for the purpose of expanding the economic base of the Nasty Boys" and "had nothing to do with the defendant's status in the organization." (Jose Muyet Br. 42). This argument fails, however, because a rational jury could infer that Jose Muyet acted to maintain or increase his position in the enterprise from evidence that he committed a violent crime in order to expand or protect the economic base of the drug enterprise. A rational jury thus could determine that Jose Muyet eliminated the competition (Figueroa) to maintain or increase his position within the drug enterprise.

 Jose Muyet's claims concerning the sufficiency of the evidence against him for the remaining acts likewise fail. The evidence showed that Raphael Cruz was murdered to accommodate a drug source of the Nasty Boys and to secure an additional supply for the enterprise. As Jose Muyet was the leader of the gang, a rational jury easily could conclude that Jose Muyet ordered and participated in this killing in order to maintain or increase his position in the Nasty Boys. The evidence presented at trial indicated that Antonio and Julio Flores were murdered for their perceived disloyalty to the Nasty Boys. A jury reasonably could ...

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