The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
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.
I. AS TO THE RULE 29 MOTION
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."
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.
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
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
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
Q Have you ever heard of a Stephen Herman?
Q Has he ever been a member of Price Fighters?
Q Do you know Iris Herman?
Q As far as you know, has she ever been a member of
Q Do you know Mitchell Herman?
Q Has he ever been a member of Price Fighters?
Q Now, do you know a person by the name of William
A He's the retail consultant for the company.
Q And do you know what position he holds at Price
A Well, he's the retail consultant for the company.
Q He's the person you report to?
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?
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:
Q Yes. In the nine years you've been there.
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?
Q So you want to comply with the suppliers.
Q And not establish your own prices. Correct?
Q And it's a fair statement that all the members of
Price Fighters charge the same prices, correct?
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?
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
Mitchell Herman ran a full page ad in Newsday with very
aggressive prices and within a few days his store was set on
Q Now shortly before December 14, 1995, did you run a
big ad in Newsday?
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
Q Were the — basically some of the prices that low in
the ad that date?
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?
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.
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?
Q And do you recall what it was that you told him?
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 ...