The opinion of the court was delivered by: Scheindlin, District Judge.
The statute governing violent crimes in aid of racketeering
18 U.S.C. § 1959(a). Here, the Government charged that Ferguson
conspired to kill Ayala for one or more of the three purposes set
forth in the statute: (1) for pecuniary gain; (2) for the purpose
of gaining entry to Power Rules; and/or (3) for the purpose of
maintaining or increasing his position in Power Rules. See
Indictment at ¶ 51. In addition, all three motives were included
in the jury charge. See Tr. at 9171-72. Specifically, the jury
was charged as follows:
Tr. at 9174-76. The jury was not asked to identify which purpose
it found had motivated Ferguson to kill Ayala.
b. The Government's Opening Statement
In its opening statement, the Government did not tell the jury
that it intended to prove that Ferguson committed the alleged
violent acts for the purpose of gaining entry into Power Rules or
for the purpose of increasing or maintaining his position in the
enterprise. In fact, the Government appeared to concede that
Ferguson had no position in the enterprise and sought none. The
Government argued that his sole motivation was pecuniary gain.
See Tr. at 89, 96 (Ferguson was not part of the day-to-day
operations of Power Rules — he was an outside hit man hired by
Guzman to kill Gregory Ayala).*fn6
c. The Government's Summation
Nor did the Government appear to rely on the "gaining entrance"
or "maintaining or increasing position" prongs during the trial,
instead concentrating on the pecuniary benefit prong. In a
lengthy closing argument and rebuttal, the Government never
summarized any "gaining entrance" or "maintaining or increasing
position" evidence or argued either of these prongs to the jury.
See Tr. at 8269 (more limited involvement of Ferguson was that
of a hired gun who became associated with Power Rules in the 1995
to 1996 time period); Tr. at 8912 (some witnesses never thought
of Ferguson as being in Power Rules).*fn7
d. The Rule 29 Argument
Nonetheless, in its opposition to Ferguson's Rule 29 motion,
the Government argued that Luis Soto, a cooperating witness and
former member of Power Rules, testified that Ferguson first
became "associated with" Power Rules in 1996. Tr. at 1147, 2103.
The Government also argued that there was sufficient evidence
connecting Ferguson to the conspiracy to murder Ayala to support
his conviction. In ruling on Ferguson's Rule 29 motion, I
summarized this evidence. See Transcript of June 18, 1998
Conference, pp. 6-7. Such evidence included, inter alia, the 02
cab incident, the Jamaican hat incident, and the Albert Mercado
In the 02 cab incident, both David Rivera and Rafael Lebron
(members of Power Rules) testified that Miguel Guzman (leader of
Power Rules) provided guns to David Rivera, Edwin Rivera (another
member of Power Rules), Rafael Lebron and Ferguson and directed
them to hire a gypsy cab in order to locate and shoot Gregory
Ayala. The group searched for Ayala at a number of locations but,
having no luck in finding him, returned to Miguel Guzman's
apartment building. David Rivera also testified that on another
occasion, pursuant to a plan devised by Miguel Guzman, he and
Ferguson went to Avenue St. John to find and kill Ayala. On that
occasion, David Rivera was wearing a hat with fake dreadlocks as
a Jamaican disguise. Both were carrying weapons. Regarding the
Albert Mercado shooting, Rafael Lebron testified that Miguel
Guzman told him and Ferguson to go shoot "Spanish Greggo"
[Gregory Ayala] and they agreed. In preparation for the attack,
Guzman handed out guns and bullet proof vests to Lebron and
Ferguson. Once armed, Ferguson and Lebron went with Nick Ortiz (a
member of Power Rules) in a Blazer to meet Luis Soto, who was to
point out Ayala to the trigger-men. In addition to these
missions, there was also testimony from Elizabeth Perez (Guzman's
ex-girlfriend) that Miguel Guzman spoke with Ferguson about
The Government argued that these acts proved Ferguson's close
connection with core members of Power Rules and his ongoing
efforts to further a key goal of the enterprise — the elimination
of rival drug dealer Gregory Ayala. According to the Government,
these joint efforts with Power Rules' members, coupled with
Ferguson's ongoing association with Miguel Guzman, support a
finding that his motive was to gain entry into or maintain or
increase his position within Power Rules.
e. The Rule 29 Decision
In denying Ferguson's Rule 29 motion, I held that:
[t]he government's evidence shows that Guzman
directed Ferguson and "core members" of Power Rules
to kill Ayala. Ferguson and the core members obtained
weapons, bulletproof vests, and/or disguises from
Guzman before going out to find Ayala. Ferguson only
attempted to carry out Guzman's plan to kill Ayala
when he was accompanied by the core members — never
by himself. Based on Ferguson's joint efforts with
Power Rules' members to kill one of the gang's
adversaries, at Guzman's direction, a juror could
reasonably infer that Ferguson's motive for
committing the crime was to gain membership in Power
Rules or to advance his position in the enterprise.
See Tr. from June 18, 1998 conference, pp. 8-9.
f. The Government's Post-Trial Briefing
In its post-trial brief, the Government again argues that the
evidence that Ferguson acted for the purpose of "gaining entrance
to" and "maintaining position" in Power Rules was sufficient.
According to the Government's theory, proof that Ferguson acted
jointly with core members of Power Rules to kill one of the
gang's rivals is sufficient to support the conclusion that
Ferguson's motive was to gain entrance into or increase his
position within Power Rules. See Government's Memorandum of Law
in Response to Defendants' Post-Trial Motions for Acquittal
Pursuant to Rule 29(c) and a New Trial Pursuant to Rule 33, at
pp. 58-62. The Government also argues that it proved that
Ferguson acted in return for a receipt of a pecuniary benefit.
2. Gaining Entry/Maintaining or Increasing Position
"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." United States v.
Muyet, 994 F. Supp. 550, 555 (S.D.N.Y. 1998) (citing United
States v. Concepcion, 983 F.2d at 381). Based on a careful
review of the evidence, I now conclude that no reasonable juror
could have found that Ferguson's motivation for attempting to
shoot Ayala was to "maintain or increase [his] position" in Power
Rules as there was no credible evidence that he was a member of
Power Rules.*fn9 Indeed, as noted earlier, the Government never
asked the jury to make such a finding.
In certain cases, when a defendant repeatedly engages in
criminal conduct with other gang members and those actions
encompass the goals of the conspiracy, then that participation
may indeed be sufficient to prove membership. See United States
v. Mapp, 170 F.3d 328, 336 (2d Cir. 1999) (defendant was member
of robbery gang where Government offered evidence of five
robberies). Here, the record is bereft of evidence that Ferguson
engaged in any of Power Rules' core activities (drug sales,
extortion, robbery). Rather, the proof is that on two isolated
occasions, Ferguson participated with gang members in a
conspiracy to kill Gregory Ayala, a rival drug dealer. This
conduct, in the absence of any further evidence, is not
sufficient to establish membership in Power Rules. See United
States v. Polanco, 145 F.3d 536, 540 (2d Cir. 1998) (defendant
who merely sold guns to a gang and was not involved in its drug
trafficking activities was not a member of the gang — defendant's
§ 1959 conviction reversed because his involvement in the murder
of an innocent bystander with the gang's leader could not have
been committed for the purpose of maintaining or increasing his
position in the gang as he was not a member of the gang). Nor was
Ferguson involved in the planning of Power Rules' other illegal
activities. See also Thai, 29 F.3d at 818 (no evidence of
maintaining or increasing position motivation simply from the
fact that the bombing of an Asian restaurant was done by a leader
of a gang that earned money by committing violent crimes against
Asians). Cf. United States v. Muyet, 994 F. Supp. 501, 516
(S.D.N.Y. 1998) (defendant closely associated with gang who
meetings at which murders and other violent crimes were planned
and who himself exercised discretion in committing them played
some role in the operation, management or direction of the
The same is true of the "gaining entrance to" prong of the
test. There is simply no credible evidence that Ferguson sought
to become a member of Power Rules.*fn10 Nor did he commit any
substantive crimes on behalf of Power Rules in an attempt to seek
membership. See United States v. Brady, 26 F.3d 282, 290 (2d
Cir. 1994) (an associate of the Colombo Family is "an individual
aspiring to become a member or who commits crimes under the
protection of the family, but cannot become a member because of
lack of Italian lineage"). At most, the jury found that Ferguson
participated in two failed attempts to find and kill Ayala. This
does not rise to the level of activity necessary to support a
finding of membership or a desire to become a member.
3. The Pecuniary Motive
The only evidence that Ferguson's motivation in conspiring to
kill Ayala was to obtain a pecuniary benefit came from
cooperating witness Luis Soto. On direct examination, Mr. Soto
testified as follows:
Q: After she took the bag, put it in her pants and
left, what happened next?
A: We were in the hallway for a little while and
Miguel gave Dread [Ferguson] some money.
Q: How much money did Miguel give to Dread?
A: I don't know.
Q: Did they have any conversation about the money?
Q: Did anyone ever discuss with you the money that
Miguel gave to Dread that day?
Q: Did Dread say anything on that occasion?
A: No, he just left.
Tr. at 1291-92. Then, on cross-examination, Luis Soto testified:
Q: You're able to tie together the cookie jar
incident with the third meeting or the third time you
saw Dread, correct?
Q: And you're sure that this took place after the
shooting of Albert Mercado, correct?
A: I believe so.
Q: And you specifically recall on that occasion Mr.
Guzman giving Dread some money, correct?
Q: You don't know how much money, correct?
Q: And there was no discussion about the money,
Q: You don't know what it was for, correct?
Q: Now, was the money a wad of bills?
Q: Were they singles, tens, fives?
A: I'm not sure. I didn't tell him to see the money.
Q: Was it a loose wad, was it wrapped in any way?
A: I'm not sure. He just pass it to me.
Q: Was it in a bag?
A: No, it wasn't.
Q: Was it a big wad of bills, a stack, was it a small
A: Like a handful.
Q: Just a handful?
A: I believe so.
Q: And you couldn't tell the denominations, correct?
Q: And Dread didn't say anything about it at the
A: I believe so, correct.
Q: He didn't complain that there wasn't enough money
A: He didn't say nothing.
Tr. at 2058-59.
Even assuming Luis Soto to be a credible witness, which is a
weak assumption, and that the payment described above actually
took place, I find the evidence too slender a reed to support a
guilty verdict against Ferguson. The jury's conclusion that Power
Rules, as a RICO enterprise, agreed to and did pay Gregory
Ferguson for his agreement to murder Gregory Ayala based solely
on Miguel Guzman handing Ferguson a handful of cash is contrary
to the weight of the evidence. Soto did not know the amount of
the payment or its purpose. No evidence was offered as to any
discussions — preceding, contemporaneously, or after the payment
— as to what the money was for. Cf. Muyet, 994 F. Supp. at 519
(evidence presented was sufficient to allow a reasonable jury to
find that defendant Feliciano was promised or received payment
for his role in the Salcedo shootings — a witness testified that
he overheard John Muyet discuss the hiring of "freelancers" to
"take care of" the Salcedos and after the shootings the witness
overheard Muyet discuss the payment to Feliciano). The payment
could just as easily have been for an innocent purpose or even
for a criminal purpose unrelated to the murder of Gregory Ayala.
The payment could have been by Guzman for a personal reason or
made on behalf of Power Rules. Neither of these purposes
(innocent purpose or criminally unrelated purpose) would support
a conviction of Ferguson for violating 18 U.S.C. § 1959.
Solely from Soto's testimony, however, the jury inferred that
the payment from Guzman was made on behalf of Power Rules as
remuneration for Ferguson's promise to murder Ayala. This
inference is unsupported by any other evidence and cannot sustain
the guilty verdict. "Where there is any doubt that the evidence
fully supports a jury determination, a new trial is the
appropriate remedy to insure defendant the full extent of his
rights." United States v. Simms, 508 F. Supp. 1188, 1208
(W.D.La. 1980) (new trial granted where "the conclusion that
defendant knowingly and intentionally agreed to purchase votes
can only be reached from compound inferences based upon the
testimony of witnesses whose credibility is, in some instances,
suspect"); see also United States v. Autuori, 96 CR 161, 1998
WL 774232, at *29 (D.Conn. Aug.28, 1998) (question for judge in
granting a new trial is whether she is satisfied that competent,
satisfactory and sufficient evidence in the record supports the
jury's finding of guilt beyond a reasonable doubt); United
States v. Robinson, 71 F. Supp. 9, 12 (D.D.C. 1947) ("a judge may
set a verdict aside as contrary to the weight of evidence and
grant a new trial, even if there was substantial evidence
requiring him to submit the issues to the determination of a
jury"). In the interest of justice, I find that the jury's
verdict on Counts 10 and 35 is against the weight of the evidence
and cannot stand.*fn11 Defendant's motion for a new trial on
these counts is hereby granted.
The conclusion to grant a new trial is not in conflict with my
earlier ruling denying Ferguson's Rule 29 motion. In that
context, drawing every inference in favor of the Government, I
found the evidence sufficient to support a finding of guilt
beyond a reasonable doubt. On a Rule 33 motion, however, I am
entitled to weigh the evidence, or lack thereof. Simms, 508
F. Supp. at 1204 (a Rule 33 motion calls upon the Court to
"examine the evidence under a different standard wherein the
Court has broad power to evaluate all of the testimony and to
make such credibility choices and inferences as are reasonably
dictated by the record"). The Court's "discretion to review the
evidence is much wider upon motion for new trial than on judgment
of acquittal" because of the "differing effects upon the trial
process the two rulings have." Id. As the court in Robinson
There is no incongruity or inconsistency in requiring
the Court to submit the issues to the jury if there
is substantial evidence to support a verdict of
guilty, and at the same time in empowering it to set
the verdict aside if it is deemed contrary to the
weight of the evidence. In directing a judgment of
acquittal, the Court makes a final disposition of the
case. On the other hand, in setting the verdict aside
the Court merely grants a new trial and submits the
issues for determination by another jury. It is
appropriate that in the latter instance, the Court
should have wide discretion in the interest of
Robinson, 71 F. Supp. at 11.
C. Additional Grounds
There are other reasons that support granting Ferguson a new
trial. For example, the jury may have been unduly influenced in
its disposition of the § 1959 counts by the allegations in the
RICO and RICO conspiracy counts. In Count 1 of the Indictment,
Ferguson was charged with four predicate acts supporting his
participation in a RICO enterprise (attempted murder of Mercado,
conspiracy to murder Ayala, witness tampering and threatening a
U.S. Marshal). In Count 2, Ferguson was charged with conspiracy
in connection with the activities of Power Rules. He was,
however, acquitted of both counts. Second, "the possible
cumulative adverse affect that the various unproven charges
[e.g., the attempted murder of Alberto Mercado] may have had
upon the juror's deliberations" could have substantially
prejudiced the defendant. See United States v. Sam Goody, Inc.,
518 F. Supp. 1223, 1225 (E.D.N.Y. 1981), appeal dismissed by,
675 F.2d 17 (2d Cir. 1982), superseded by statute in, United
States v. Hundley, 858 F.2d 58 (2d Cir. 1988) (earlier ruling
that order granting a new trial was not sufficiently final to
give the Government a right to appeal superseded by Comprehensive
Crime Control Act of 1984 which now permits such appeals). In
this vein, even my decision refusing to sever Ferguson's trial
from that of the core members of Power Rules supports a new
trial. See United States v. McAllister, 91 CR 49, 1992 WL
363601 (D.Conn. Nov.12, 1992) (motion for new trial granted
because of failure to sever defendant's trial from that of
co-defendant). The jury was exposed to weeks of testimony
regarding successful murders and assaults, none of which involved
Ferguson. The chance that this parade of violence unfairly
prejudiced Ferguson's right to a fair trial is just too great to
For the reasons set forth above, a new trial is ordered as to
Counts 10 and 35 of Indictment S8 97 CR 786. The scheduling of
this trial will be discussed at a conference to be held on June
1, 1998 at 3:30 p.m.