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January 25, 2002


The opinion of the court was delivered by: Spatt, District Judge.


In a verdict rendered on November 27, 2001, the defendant William Peterson ("defendant" or "Peterson") was convicted by the jury on all seven counts in the superceding indictment. The defendant now moves for post-verdict relief pursuant to Fed. Crim. Rules. 29 and 33.

Let the record indicate that during this trial, and until recently, the defendant was represented by David W. Clayton, Esq. After the verdict was rendered, and following the Clayton letter moving for the relief addressed above, the defendant retained new counsel, Ronald G. Russo, Esq., who wrote a letter on behalf of the defendant on December 20, 2001, and who appeared to argue on behalf of the defendant on December 21, 2001. Thereafter, the defendant retained the firm of Dershowitz, Eiger & Adelson.


A. Defendant's Contentions

In the Clayton letter dated December 11, 2001, his counsel states that: "I submit that as to counts 1-5 I have no legal basis upon which the court could therefore presently grant my motion post verdict." However, as to Counts Six and Seven the defendant contends that the Government's proof was not legally sufficient. In Counts Six and Seven it is charged that the defendant William Peterson "knowingly and intentionally used and carried destructive devices, to wit: Molotov cocktails" during and in relation to crimes of violence, namely, arson, in violation of 18 U.S.C. § 924(c). With regard to Counts Six and Seven, the defendant asserts that:

As to counts 6 and 7 however I submit that even under a Valenti standard (United States v. Valenti, 60 F.3d 941 (2d Cir. 1995)) the governments (sic) proof was not legally sufficient in that the government has conceded that in its proof Mr. Peterson never told his coconspirators how to burn any buildings. While the statute incorporates a Molotov cocktail as a destructive device, there is no proof in this record that Peterson aided, abetted, counseled, commanded or induced Muscat to use a Molotov cocktail or procured any Molotov cocktail components is (for?) Muscat's use. Nor is there any proof of any conversation regarding same between Peterson and Hart.

In addition, Peterson contends that the Pinkerton theory was not made out because:

In the absence of proof as to any conversation or act by William Peterson regarding this particular destructive device being employed the term "reasonably foreseeable" reduces itself to speculation, conjecture, guesswork and surmise as a standard of legal proof. I submit that such is not the case and the motion with respect to counts 6 and 7 should be granted.

In addition, in the Russo letter dated December 20, 2001, the defendant further contends "that the evidence was insufficient to establish that the use of so-called `Molotov cocktails' — `destructive devices' under 18 U.S.C. § 924(c)(1) was reasonably foreseeable to Mr. Peterson." Citing to United States v. Masotto, 73 F.3d 1233, 1239-40 (2d Cir. 1996), and United States v. Medina, 32 F.3d 40, 45 (2d Cir. 1994), the defendant asserts "that in order to sustain a conviction under § 924(c), the evidence must establish more than mere knowledge that his coconspirators might use destructive devices; rather, the evidence must establish that the defendant `performed some act that directly facilitated or encouraged the use or carrying' of a Molotov cocktail."

Russo further contends that "[T]he Government has conceded, as it must, that Mr. Peterson neither knew that Mr. Hart's accomplices planned to use `Molotov cocktails' or that he suggested that they do so. (See the Government's Summation at Tr. 903). Accordingly, there simply is no evidence, let alone sufficient evidence, that Mr. Peterson `performed some act that directly facilitated or encouraged the use of `Molotov cocktails' to sustain the convictions on these two counts as is required by the law of this Circuit.'"

Russo also contends that Pinkerton is inapplicable because "there was no charged conspiracy to commit arson." Rather, "the single conspiracy charged was the Hobbs Act conspiracy, charged in Count One of the superceding indictment, in which Mr. Peterson was alleged to have conspired to `obtain, from the owners of Bottles & Cases, Bottle Bargains and Frank's property, to wit: the owners' right to compete for business in the retail liquor industry, with the owners' consent, which consent was to be induced by wrongful use of actual and threatened force. . . [.]"

In sum, as to Pinkerton, the defendant contends that the established extortion conspiracy is insufficient to support this conviction. "Given the complete lack of evidence in this case that those who employed the destructive devices (i.e. `Molotov cocktails') were even aware of the charged conspiracy, let alone joined it, Pinkerton's theory of liability for the reasonable foreseeability of co-conspirators' acts is inapplicable. Stating it differently, Mr. Peterson may not be held liable for the acts of his co-conspirators absent evidence that they were his co-conspirators. On these facts, the substantive crimes of others in employing the destructive devices are not attributable to Mr. Peterson under Pinkerton as the Government claims."

B. The Rule 29 Standard

The standards governing Rule 29(c) with regard to a motion for Judgment of Acquittal after discharge of the jury are clear and well settled. As stated in United States v. McDonough, 56 F.3d 381 (2d Cir. 1995), and in many other recent Second Circuit cases, Rule 29 is to be applied as follows:

"An appellant challenging the sufficiency of the evidence bears a very heavy burden." United States v. Rivera, 971 F.2d 876, 890 (2d Cir. 1992) (citation and internal quotations omitted). We review the sufficiency of the evidence in the light most favorable to the government, United States v. Amato, 15 F.3d 230, 235 (2d Cir. 1994), and draw all reasonable inferences in the government's favor. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Torres, 901 F.2d 205, 216 (2d Cir.), cert. denied sub nom. Cruz v. United States, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). "The conviction must stand if any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt." United States v. Moore, 54 F.3d 92, 100 (2d Cir. 1995).

See also United States v. Finley, 245 F.3d 199, 202-03 (2d Cir. 2001); United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998).

C. The Proof

Considered in the light most favorable to the Government, the evidence was sufficient to convict the defendant on the charges based on a Pinkerton, reasonably foreseeable theory. Also, the evidence was sufficient to convict the defendant of aiding and abetting in the using or carrying of a Molotov cocktail to commit a crime of violence; namely, as to Count Six, with regard to the arson charged in Count Four as to Bottles & Cases retail liquor store, and, as to Count Seven with regard to the arson charged in Count five as to the Bottle Bargains retail liquor store.

The jury convicted the defendant of Count Four (arson as to Bottles & Cases) and Count Five (arson as to Bottle Bargains). Therefore the first element, namely, that the defendant committed a crime of violence was proven, beyond a reasonable doubt. The second element to be established by the Government was that the defendant knowingly used or carried a destructive device in relation to the arson crimes, or, as the Government contended, that the defendant aided and abetted in the commission of those crimes. In this regard, the Court first notes that, pursuant to the statute, 18 U.S.C. § 924(c), the term "destructive device" includes a Molotov cocktail type of device.

The Court finds that the Government proved that Peterson aided and abetted in the use or carrying of Molotov cocktails. Also, the Government proved that Peterson could have reasonably foreseen that Molotov cocktails would be used to set fire to retail liquor stores Bottles & Cases and Bottle Bargains. Let's look at the record.

Susan Bronstein, General Manager of the organization called "Price Fighters" testified that William Peterson "runs" this 35 member group of liquor stores and further stated, as follows:

Q What do you do for a living?

A General manager for Price Fighters.

Q What is Price Fighters?

A A cooperative advertising group.

Q How many stores are currently members of Price Fighters?

A 35.

Q Have you ever heard of a Stephen Herman?

A Yes.

Q Has he ever been a member of Price Fighters?

A No.

Q Do you know Iris Herman?

A Yes.

Q As far as you know, has she ever been a member of Price Fighters?

A No.

Q Do you know Mitchell Herman?

A Yes.

Q Has he ever been a member of Price Fighters?

A No.

Q Now, do you know a person by the name of William Peterson?

A Yes.

Q What does he do?

A He's the retail consultant for the company.

Q What company is that?

A Price Fighters.

Q And do you know what position he holds at Price Fighters?

A Well, he's the retail consultant for the company.

Q He's the person you report to?

A Yes, I do.

Q Is there anybody above Mr. Peterson? In other words, you report to him.

Do you know whether or not he reports to anyone else?

A No.

Q Now, at any time from the time that you've been there in the nine years, did anyone run Price Fighters other than William Peterson:

A Since I'm there?

Q Yes. In the nine years you've been there.

A No.

Q Isn't it a fair statement that you stated the other day that one of the things Price Fighters tries not to do is to charge too low a price because it's unfair to the small liquor owners?

A Yes.

Q So you want to comply with the suppliers.

A Yes.

Q And not establish your own prices. Correct?

A Exactly.

Q And it's a fair statement that all the members of Price Fighters charge the same prices, correct?

A Yes.

Tr. at 145-153.*fn*

Steven Herman testified that the defendant told him that he would like to see him and his wife raise the prices for the liquor they sold at their store.

Q Now, did you have a conversation with Mr. Peterson at this meeting?

A Yes.

Q Please tell the ladies and gentlemen of the jury what the two of you said to each other.
A Mr. Peterson approached me and said "I'd like to see your wife's store raise the prices that you're selling at. They are very low prices. If we could raise the prices, we could all make more money."
Q Did you and Mr. Peterson say anything else to each other that night after you told him you weren't going to do what he asked you to do?
A I believe he said to me, "Why don't you think about it?"

Tr. at 66-68.

Mitchell Herman ran a full page ad in Newsday with very aggressive prices and within a few days his store was set on fire.

Q Now shortly before December 14, 1995, did you run a big ad in Newsday?

A Yes.

Q Tell us about the ad that you ran.

A It was a full-page ad in Newsday.

Q All right. What did it say?

A It had big boxes with prices, very aggressive prices, and like a laundry list of a lot of items we had in the store.
Q And when you say they were very aggressive prices, what does that mean?
A Sometimes we would sell products even below our own cost.
Q Were the — basically some of the prices that low in the ad that date?

A Yes.

Q What date did the ad come out?

A I don't recall the exact date.

Q To the best of your recollection, narrow it down.

A Probably a Wednesday, maybe a Saturday and Sunday the week prior.

Q So within seven days of December 14th?

A Yes.

Q Now tell us what happened on December 14, 1995.

A December 14, 1995, I was awakened in my home by a phone call that the store — that there was fire trucks at the store and the alarm had been going on.

Tr. at 122-23.

William Ricchiuti, a/k/a Ricco, who operated a tanning salon next to Bottles & Cases, testified that he saw the shooting incident of May 7, 1991, when, allegedly, Peterson fired shots through the window of Bottles & Cases. He described the van as one of an unusual color, silver with red stripes. Ricchiuti did not get a good look at the shooter and described him as husky, white male, stocky, approximately 30 to 35 years of age and dark bushy hair with a beard. Ricchiuti further testified:

Q The next day, did some other member of the police department come to see you?

A Yes.

Q And do you recall what it was that you told him?

A Yes.

Q What was that, sir?

A I gave him a description of exactly what happened. And we were actually walking back and forth in front of the liquor store and my store going over, you know, some of the details that he ...

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