United States District Court, Eastern District of New York
January 25, 2002
UNITED STATES OF AMERICA,
WILLIAM PETERSON, ALSO KNOWN AS "CRAZY BILLY," DEFENDANT.
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."
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.
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
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
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
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?
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.
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?
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?
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
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
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.
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?
Q And do you recall what it was that you told him?
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 wanted to know
about what took place that night.
Q While you were talking to the detective in front of
the liquor store, did something happen unusual again?
Q Tell the ladies and gentlemen of the jury what
A We were in the front of the liquor store, walking
towards my salon, and I gave a pretty good
description of the vehicle. And the detective had
looked up, noticing a vehicle coming out of the side
street, and he said, "Would you notice if that
vehicle looks like the vehicle coming out there?"
And I said, "Yes, that looks like the vehicle."
So we both watched the truck approach the stop
sign, make a left-hand turn to come across the
stores where we were, and I was able to see the
truck in full view.
And I said to the officer, "That's the truck
Q And what happened after that?
A The officer put his light on — the officer raced to
his car, put his light on, raced after the
Q After the car passed in front of you, did it look
like the same car, or to the best of your
recollection it looked or it was the same car?
A It was the same car.
Q What was it that makes you so sure that it was the
A It was a long truck with silver and red paint with
a tire connected onto the back. And it wasn't — it's
not a common
truck that you see very day, considering the colors.
Q Did you get a chance to see whoever was driving the
car as it passed you, because it's at night now?
A It happened pretty quick. Just the gentleman that
was in that truck as it was passing by was looking up
at us —
THE WITNESS: When the truck came by in front of
the stores, the gentleman in the truck was looking
directly at us and we were looking directly at him.
And I said to the officer, "That's the truck right
Before I turned around, he was in his car racing
after this individual.
Tr. at 168-71.
Detective Robert Bautz of the Suffolk County Police Department
testified that the day after the shooting he stopped the same
silver and red striped van, which was riding past Bottles &
Cases and identified the defendant as the driver and owner of
The defendant was a licensed owner of a .38 caliber Colt
revolver. The bullet fragments in the liquor store and the
defendant's revolver were tested by George Reich, a forensic
Q Now, when you say that the two rounds, the two
evidence rounds that you received in the bullet
boxes, came from that particular gun, are you saying
that it came from a gun like that or it came from
that gun to the exclusion of any other firearm?
A I'm saying that after examining the two expended
bullet jackets and the expended bullet jackets and
the expended bullet, and comparing it to the test
specimens fired from the Colt revolver, I'm saying
that they were identified as positively being fired
from that particular Colt revolver.
Q Could they have been fired from any other Colt
A Not in my opinion, no.
Q Or any other type of firearm?
Tr. at 451-52.
There is direct evidence of the defendant's participation in
the arson by use of Molotov cocktails, although those words were
never mentioned. Jesse Hart, a night club operator, testified
that William Peterson initially asked him to burn down Frank's
Wine & Liquor store, but, after that "was too hard to do," it
was agreed to instead, burn down Bottles & Cases and Bottle
Q Tell the ladies and gentlemen of the jury what
happened on the particular day when Frank's came up.
A I walked into the store to buy liquor, picking up a
few bottles, and I saw Billy. And Bill said, "Before
you leave I'd like to talk to you in the office."
Q When you met him in his office, what did you and he
Well — he asked me if I knew anyone who was
looking to make any money, and I said yeah. And he
said to me that he had a place that he wanted fire
bombed. So I told him, "Yeah, I probably can get
Q Okay. Did he tell you anything more at that time?
A He gave me the address.
Q What was the address?
A Wheeler Road in East Islip.
Q . . . What happens next?
A We take a ride out by Frank's, park in the back,
the parking lot. Him and I go in, look around.
That's not the defendant, that's his son,
And I go in, look around. I buy a bottle, look
around, check the place out.
When I come out, I noticed the place has steel
doors that come down and it is closed up very
tight. So I told Stephen, we looked around, we
drove around the place and I told Stephen, he told
me the only way he could get into this place would
be to go through the roof.
Q And what was your response to his suggestion that
the only way to get in might be through the roof?
A I told him it was too much exposure, too much of a
major — it was a main road, and the shopping center
that was right across was very big, a lot of traffic.
Q After you leave there, at some point did you tell
Mr. Peterson what happened?
Q Was it that day or some later date?
A It was that date. It was a later date. Not that
day. It was a few days later, a day or two later.
Q Does the subject ever come up again between you and
A About Frank's?
A No, other than the conversation we had in his
office about it.
Q I don't understand. Which conversation? The one you
testified about earlier?
A No. I went back and told him, went back and saw him
and I told him the store was too hard to do. We
couldn't do it.
Q All right. Sometime later did you talk to Mr.
Peterson again about a fire at other liquor stores?
Q About how much later did this happen?
A A few months. It happened around November when I
talked to him about it.
Q November of what year?
Q All right. Where were you at the time that you had
this conversation with Mr. Peterson?
A In his office. In Crazy Billy's.
Q What were you doing there that day?
A Buying liquor.
Q How as it that the subject came up?
A Billy asked me to step into the office. I went into
the office and he said to me, "I got these other two
places since the other place" —
Q I didn't hear a word you said.
"I have two other places that I need fire
bombed, taken care of." I said, "All right." He
said, "These should be — I want you to go take a
look at them. These should be easier than Frank's
since you couldn't do Franks."
Q Did he actually say fire bombed?
A Yes. Burn down.
Q So he didn't use "fire bomb." A No.
Q "Burn down"?
Q Okay. What else did he tell you?
A He gave me the address at that time of these two
Q How did he give it to you? Verbally or in writing?
A On a piece of paper.
Q And you remember the name of the store?
Q What are the names?
A Bottles and Cases and Bottle Bargains.
Q Well, what did this store not have that Frank's did
A Could you repeat it?
Was there something about the exterior of
Frank's that made it difficult for you to bomb it
or burn it?
A Frank's had steel doors, pull-down doors.
Q Did this store have steel doors?
Q After you looked over these two stores with
Stephen, what did you do?
A I went back to Billy's that day or the next day.
Q Did you go for the express purpose of going to see
Q Do you want to let me finish.
— or did you go there to buy liquor?
A I guess both. When I'm there I always picks up
liquor, but I went there really to talk to him. That
was the main purpose.
Q When you went to talk to Mr. Peterson at his store,
did you in fact meet with him and talk to him?
Q Where did the conversation occur?
A In his office.
Q Just the two of you?
A Just the two of us.
Q What did you say to each other?
A I told him that Stephen, my son Stephen Muscat said
that the stores were easier to do; that it could be
Q Well, you agreed with Stephen, right?
A Right. Yes, sir.
Q Now, what happens next?
A He gave me the photo. I asked him. Because Stephen
had asked me to find out how much money he would pay,
and he told me he would give me $8,000: $4,000 for
Q Right. And did Mr. Peterson say anything else about
either of these two stores?
A He did. But I don't remember if it was at this
sitting or another sitting, but he did mention that
the place on the top of the hill, Bottles and Cases,
has bulletproof glass.
Q And did he say anything about how he knew that?
Yeah. He told me that he had taken a couple of
shots at it with his gun and he had lost his carry
— his permit because of that and it might be
difficult, very difficult to get through. And I
said I don't think so. I think Stephen can get
Tr. at 615-27 (emphasis supplied).
Also, Nicole Cornicelli, a former employee of Peerless Wine &
Liquor Distributor, testified to what a jury could consider to
be damaging admissions by the defendant.
Q Do you see a current or former customer of Peerless
in the courtroom?
A Yes, I do.
Q And who was that?
A William Peterson.
Q How long have you known Mr. Peterson?
A At least 12 years.
Q Did you ever have a conversation with Mr. Peterson
regarding prices at Frank's?
Q And did Mr. Peterson ever tell you anything about
the prices at Frank's?
Q All right. Please tell the ladies and gentlemen of
the jury in your own words the first conversation
that you recall: when it was and what was said
A There was an ad put in the paper by Frank's Liquors
and there was a free bottle given out with a certain
purchase. And Mr. Peterson told me to tell my husband
and his boss to stop advertising free goods or heads
would be rolling, there would be trouble. . . .
Q Did you ever have any other similar conversations
with Mr. Peterson in any following years?
A There were other conversations, warnings to tell my
husband not to advertise or don't let Henry or Frank
Q How often or how many times did this occur?
A More than a few. I couldn't give you a specific
number. I will say more than eight.
Q Now back in 1995, during that year did you have
occasion to go into William Peterson's store?
Q And the holiday season of 1995, in other words
after Thanksgiving of 1995, how often would you have
occasion to go into Mr. Peterson's store?
A Every Monday.
Now, back in December of 1994, particular
around December — December '95, I'm sorry, did you
hear about the fire at Bottles and Cases?
A Yes, I did.
Q Did you hear about the fire at Bottle Bargains?
A Yes, I did.
Q On the Monday following the fire, did you have
occasion to go to Mr. Peterson's store?
Q What were you doing there?
A My normal sales call: putting up displays, fixing
displays, making presentations.
Q At some point while you were in Mr. Peterson's
store, did you have occasion to overhear Mr. Peterson
say a few things?
A Yes, I did.
Q And where were you in relation to Mr. Peterson and
A In the doorway of his manager's office, which was
the front end of his office.
Q About how far away would you say you were from Mr.
Peterson at the time?
A Maybe 5 or 6 feet.
Q Could you please tell the ladies and gentlemen of
the jury what you heard?
A The comment that came out of it the office by Mr.
Peterson was "you pay good money for bad aim."
THE COURT: Aim? A-i-m?
THE WITNESS: That's correct.
THE COURT: Was anyone with him in the office?
THE WITNESS: No, it's an open office. Pete
White was speaking and
they made a comment, "what happened?" And that's
when Billy Peterson made the comment, "We paid good
money for bad aim."
Q And do you know who said that?
A Pete White said it.
Did you hear what happened over at Steve
Herman's? And there was chuckling and laughing, and
then the comment came through from Billy.
Q Billy Peterson?
A Billy Peterson.
Q Which was what?
A You pay good money and you get paid (sic) aim. Must
be "bad aim," but it says "paid aim."
Then the witness was asked on cross-examination
by defendant's counsel about her grand jury
A After I got my order, we were talking. Another
salesperson, another person, was there. Pete was
there. Billy was in his office.
The other person that was there made a
statement to Pete: "Did you hear what happened
about the Steve Herman bombing?" "Oh, my God." And
then Pete, quite nastily, in a stupid manner,
turned around and said: "What a shame. It's so sad,
isn't it?" They all laughed a little bit.
I got disgusted, made a fact and walked away. I
don't know if they thought I was still around there
or left, but I was just on the side of a display,
and Billy Peterson yelled out from the office
something to the effect of: "It's amazing how bad
their aim could be. You pay good money and this is
Tr. at 332-41, 348.
The Government established that the defendant William Peterson
could have reasonably foreseen that Molotov cocktails would be
used in carrying out the arsons at issue. Initially Peterson
asked Jesse Hart to burn down Frank's Wine and Liquor Merchants.
Hart testified that the only way he could have set Frank's on
fire would have been to go through the roof. As a result, Hart
told Peterson that Frank's "was too hard to do." Hart also
testified that, in contrast, he told Peterson that Bottles and
Cases and Bottle Bargains "were easier to do." (Tr. 624). With
respect to whether it was reasonably foreseeable that Molotov
cocktails would be used to ignite the fires, Hart testified that
Peterson had cautioned him "that the place on the top of the
hill, Bottles & Cases, has bulletproof glass" and "might be
difficult, very difficult, to get through." A reasonable jury
could find that Peterson was aware that Hart's accomplices would
not enter Bottles and Cases and Bottle Bargains through the roof
and that the stores' exterior glass would have to be broken.
Thus, in order to burn down the store Peterson could have
reasonably foreseen that Hart's accomplices, after breaking the
glass, would hurl incendiary devices such as Molotov cocktails
inside the store.
D. Aiding and Abetting and Pinkerton
As to Counts Six and Seven, the Court charged the jury on two
alternative theories of liability, aiding and abetting and
The Court will discuss the defendant's aiding and abetting and
Pinkerton arguments together, because the discussion with
regard to these two theories is somewhat intertwined. The aiding
and abetting statute, 18 U.S.C. § 2(a) provides that: "Whoever
commits an offense against the United States or aids or abets or
commands or induces, or procures its commission, is punishable
as a principal."
It is axiomatic that under the federal aiding and abetting
statute, it is not necessary for the Government to show that the
defendant himself physically committed the crime with which he
is charged in order to find the defendant guilty of the crimes
charged in Counts Six and Seven. A person who aids and abets
another to commit an offense is just as guilty of that offense
as if he committed it himself.
The Court charged the jury that:
In order to aid or abet another to commit a crime, it
is necessary that the defendant wilfully and
knowingly associate himself in some way with the
crime, and that he wilfully and knowingly seeks by
some act to help make the crime succeed.
Further, in order to find the defendant William
Peterson guilty of the aiding and abetting charge as
to Counts Six and Seven, the Government must prove
beyond a reasonable doubt, that the defendant
facilitated or encouraged the use or the carrying of
the destructive device.
To convict a defendant of aiding and abetting a substantive
crime, the Government must prove that "the underlying crime was
committed by someone other than the defendant and that the
defendant either acted or failed to act with the specific intent
of advancing the commission of the underlying crime." United
States v. Pipola, 83 F.3d 556, 562 (2d Cir.) cert. denied
519 U.S. 869, 117 S.Ct. 183, 136 L.Ed.2d 122 (1996). Also, as stated
in United States v. Smith, 198 F.3d 377 (2d Cir. 1999), "Much
like a conspiracy charge, in order to prove that a defendant
aided and abetted a substantive crime, the government must prove
that the defendant joined and shared in the underlying criminal
endeavor and that his efforts contributed to its success." See
also United States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993);
United States v. DeFiore, 720 F.2d 757, 764 (2d Cir. 1983).
The often used Second Circuit language in the aiding and
abetting phase of the law is that "The requirements this court
has established for the offense of aiding and abetting are that
he in some sort associate himself with the venture, that he
participate in it as in something that he wishes to bring about,
that he seek by his action to make it succeed" DeFiore, 720
F.2d at 764 (internal quotations omitted). The evidence
discussed above satisfies these requirements.
The defendant relies on two cases to support his
Rule 29 motion with regard to Counts Six and Seven. In United States v.
Medina, 32 F.3d 40, 45 (2d Cir. 1994), the Court held, with
regard to a Section 924(c)(1) offense, an aider and abettor must
have consciously assisted in the commission of the specific
crime in some active way. "The language of the statute requires
proof that he performed some act that directly facilitated or
encouraged the use or carrying of a firearm." In this case, the
defendant contends that there must be evidence that Peterson
prompted or induced the actual perpetrators to use Molotov
In Medina, the defendant supplied a revolver to one
conspirator, but that conspirator did not carry a weapon in the
attempted robbery. The defendant did not supply a weapon to
another conspirator who did carry a firearm, who was not told of
Medina's offer. The Court held that this evidence was
insufficient to support an aiding and abetting conviction.
However, in Medina, the Court cited to United States v.
Gunning, 984 F.2d 1476, 1483 (7th Cir. 1993), a case in which
defendant "actually directed his confederate to carry the gun
used in the underlying offense — an act that easily supports
aider and abettor liability with respect to Section 924(c)".
Further, the Court in Medina stated:
We agree with these cases to the extent that they
hold that a defendant cannot aid and abet a § 924(c)
violation without knowing (or having reason to know)
that a gun will be used or carried in relation to the
underlying crime. However, to the extent that these
cases imply that a defendant can aid and abet the use
or carrying of a firearm without performing some
affirmative act relating to that firearm, we
Id. at 46 (emphasis supplied).
In sum, in Medina, the Court concluded that in order to aid
and abet in a Section 924(c) offense, an affirmative act
relating to the firearm or an affirmative act in furtherance of
the confederate's carrying of the weapon, was required. The
concluding sentence in Medina is also instructive. It stated
that: "a defendant who is not present (such as Medina) cannot be
said to aid and abet the use or carrying of a firearm simply by
aiding and abetting the overall enterprise in which the firearm
is employed." Id. at 47.
Here, the Government has sufficiently established that
Peterson performed affirmative acts relating to the use of a
destructive device. Peterson devised the scheme to burn down the
two retail liquor stores; he paid the co-conspirators to perform
the deeds; and he knew that they would have to break the store
windows and use an incendiary device to burn the stores. A
reasonable jury could have determined that the Government
proved, beyond a reasonable doubt, that Peterson affirmatively
participated in the planning to use a destructive device to burn
the two retail liquor stores. Moreover, the Court notes that
Medina did not involve a Pinkerton charge.
The second case relied on by the defendant is even more
instructive and does not support the defendant's position. In
United States v. Masotto, 73 F.3d 1233 (2d Cir. 1996), the
defendant was convicted of, among other crimes, using and
carrying a firearm during the robbery of a truck in violation of
Section 924(c). As in this case, the District Judge instructed
the jury that it could find Masotto guilty of violating Section
924(c) either under an aiding and abetting theory or under a
Pinkerton theory. Masotto did not personally participate in
the truck robbery during which the co-conspirators used guns.
The Government contended that Masotto "was aware that the crew
members were carrying guns during the robberies." On appeal,
Masotto asserted that the Pinkerton instruction was
inappropriate in light of the Court's decision in Medina. The
Second Circuit disagreed and affirmed the Section 924(c)
conviction, both on the aiding and abetting and Pinkerton
As to Pinkerton, the Court stated:
It is well-settled in this Circuit that a jury may be
instructed on the Pinkerton theory of liability in
connection with a charged violation of § 924(c)
Our holding in Medina does not affect this court's
precedent that a Pinkerton instruction may be given
as an alternative theory of liability under §
924(c). In Medina, we addressed the question of
whether there was sufficient evidence to support a §
924(c) conviction under an aiding and abetting
theory. We held that, in order for a defendant to be
convicted under § 924(c) pursuant to an aiding and
abetting theory, the defendant must have "facilitated
encouraged" the use or carrying of a firearm.
Medina, 32 F.3d at 45. However, we were not there
concerned with a Pinkerton instruction and our
holding therefore was limited to an aiding and
abetting theory of liability. Thus, Medina does not
affect the applicability of a Pinkerton instruction
to a § 924(c) conviction. Accordingly, we hold that
the district court did not err by instructing the
jury on a Pinkerton theory of liability in
connection with the 924(c) violation.
Id. at 1240 (emphasis supplied)
Prior to Masotto, in an opinion filed after Medina, the
Second Circuit upheld a conviction where the District Court
instructed the jury on both an aiding and abetting and a
Pinkerton theory of liability. United States v. Thomas,
34 F.3d 44, 50 (2d Cir. 1994) cert. denied, 513 U.S. 1007, 115
S.Ct. 527, 130 L.Ed.2d 431 (1995).
Further, as to the aiding and abetting conviction, the Court
in Masotto recognized that Medina required some act that
directly facilitated or encouraged the use or carrying of the
firearm. However, the Court stated that the district court's
instruction on the aiding and abetting "required the jury to
find more than that Masotto had `mere knowledge' that members of
the crew might use firearms." The Court instructed the jury that
the Government must prove that "the defendant participated in
its commission." These instructions clearly directed the jury
that it could not convict Masotto unless it found that he
participated in the use and carrying of a firearm. Accordingly,
in Masotto the trial court did not err in instructing the jury
on the elements of aiding and abetting the § 924(c) offense.
This Court similarly instructed the jury that, in order to
convict, the Government must prove that "an aider and abettor
must have some interest in and participate in the criminal
venture." This jury could have convicted the defendant of
committing the crimes set forth in Counts Six and Seven under
either the aiding and abetting or the Pinkerton theory. Both
theories were supported by the evidence adduced at this trial.
As stated in United States v. Malpeso, 115 F.3d 155, 166-67
(2d Cir. 1997):
Gallagher also argues that the court erred in
instructing the jury on two alternate theories of
criminal liability for § 924(c) violations: aiding
and abetting and Pinkerton liability. This argument
is wholly frivolous. We have reaffirmed the
appropriateness of aiding and abetting and
Pinkerton theories of liability for § 924(c)(1)
violations in several post-Bailey [v. United
States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472
(1995)] cases, see id. [United States v.
Pimentel, 83 F.3d 55] at 58 [(2nd Cir. 1996)]
(Pinkerton); United States v. Pipola,
83 F.3d 556, 563 (2d Cir.) (aiding and abetting), cert.
denied, 519 U.S. 869, 117 S.Ct. 183, 136 L.Ed.2d 122
(1996); Masotto, 73 F.3d at 1240 (both), and
Gallagher presents no persuasive grounds upon which
to distinguish his case from these earlier decisions.
The defendant further contends that there was no charged
conspiracy to commit arson. "Rather, the single conspiracy
charged was the Hobbs Act conspiracy charged in Count One." He
asserts that the co-conspirators "were not aware of the sole
conspiracy charged in the indictment, namely, to obtain from the
owner's of the victim stores their `right to compete for
business in the retail liquor industry' . . . Stating it
differently, Mr. Peterson may not be held liable for the acts of
his coconspirators absent evidence that they were his
co-conspirators." This argument is without merit.
It is well-settled that a co-conspirator need not be aware of
all of the conspiracy's objectives. In United States v.
Salameh, 152 F.3d 88, 147 (2d Cir. 1998), it was held that
"[t]he government is not required to demonstrate that the
defendant agreed to all of the conspiracy's objectives, as long
as the defendant shared `some knowledge of the conspiracy's
unlawful aims and objectives'" (quoting from United States v.
Heinemann, 801 F.2d 86, 93 (2d Cir. 1986)). In this case,
paragraph 15 of the indictment charged that "[i]t was a further
part of the conspiracy that on or about December 14, 1995, at
the defendant William Peterson's direction, coconspirators used
fire and explosives, to wit: Molotov Cocktails, to damage
Bottles & Cases and Bottle Bargains." Muscat was aware of this
objective of the conspiracy, an objective that Peterson directed
Moreover, the record reveals that, contrary to the defendant's
assertions, at least one of the co-conspirators was aware of the
object of the criminal conspiracy charged in Count One. Jesse
Hart, a co-conspirator, testified as follows:
Q All right. Now, at any meeting did Mr. Peterson
ever tell you why he wanted [the stores set afire]?
A Yeah. Yes, he did.
Q What did he say as to why he wanted it done?
A That the guy was cutting into his business.
Q What guy?
A The buy that owns Bottles & Cases and Bottle
Bargains was cutting into his business.
Q At any point prior to the fires, did you report
back to Billy and tell him whether it was a go or not
A Yes, I told him.
Q Did Mr. Peterson tell you when he wanted this done?
A Yes, he did.
Q What did he say?
A He told me that he wanted it done before the
holidays because that's a big revenue time.
Q That's the big what time?
A Revenue. That's when they make big money.
Tr. at 627-28.
Hart's testimony establishes that Peterson directed Hart to
burn down Bottles & Cases and Bottle Bargains because those
stores were "cutting" into Peterson's business. The proof
refuted Peterson's argument that those who threw the Molotov
cocktails did not know this. Hart knew the reason for the
Peterson-directed arsons, and Hart conspired with and aided and
abetted those who threw the Molotov cocktails.
Here, the evidence of reasonable foreseeability is compelling.
The Government adduced direct evidence that Peterson knew that
his co-conspirators-directed and paid by him to commit the
arsons — would have to break a glass window and inferentially he
knew that they would have to throw incendiary devices in through
the holes in the glass window. Such a device had to be in the
nature of an improvised Molotov cocktail, namely, a bottle
containing fuel, with a wick. The proof showed that Peterson not
only knew that, he hired and paid his co-conspirators to do it.
It is clear, and the Court finds, that a rational trier of
fact could have found the essential elements of the crimes
alleged in Counts Six and Seven — aiding and abetting in the use
and carrying of Molotov cocktails to commit arson and/or the
Pinkerton theory of liability — beyond a reasonable doubt.
II. AS TO THE RULE 33 MOTION
A. Defendant's Contentions
The defendant moves, pursuant to Fed.R.Crim. 33 for a new
trial, as to all the counts, based upon the authority of United
States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992). The defendant
contends that the jury verdict, "based principally, if not
exclusively, upon the testimony of Jesse Hart, can only be
perceived as a miscarriage of justice and that the jury has
reached a seriously erroneous result." In this regard, counsel
for Peterson asserts that:
The only link of Mr. Peterson to the substantive
crimes charged in this indictment is contained in the
testimony of Jesse Hart. It is Hart, and only Hart,
to whom Peterson is alleged to have spoken and it is
Hart and only Hart's version of these conversations
upon which a conviction rests.
I need not review in detail what kind of a human
being Hart was throughout the period of the
conspiracy alleged. His history and character were
thoroughly brought out at trial and even Mr. Lato
referring to his cocaine use referred to Hart (and
Muscat) as having their brains fried by substance
abuse. In sum, I submit that the court should find
Hart (and Muscat) incredible as a matter of law. I
therefore ask the court to exercise its broad
discretion and order a new trial. Under the
circumstances and facts of this case I submit this
verdict was against the weight of the evidence.
B. The Rule 33 Standard
Rule 33 provides that "on a defendant's motion, the court may
grant a new trial to that defendant if the interests of justice
so require." As recently stated by the Second Circuit in United
States v. Ferguson, 246 F.3d 129, 133, 134 (2d Cir. 2001) and
noted by the Government in its December 12, 2001 letter, the
Rule 33 standard is as follows:
The rule by its terms gives the trial court "broad
discretion to set aside a jury verdict and order a
new trial to avert a perceived miscarriage of
justice." United States v. Sanchez, 969 F.2d 1409,
1413 (2d Cir. 1992). The district court must strike a
balance between weighing the evidence and credibility
of witnesses and not "wholly usurping" the role of
the jury. [United States v.] Autuori, 212 F.3d
[105,] 120 [(2d Cir. 2000)]. Because the courts
generally must defer to the jury's resolution of
conflicting evidence and assessment of witness
credibility, "(i)t is only where exceptional
circumstances can be demonstrated that the trial
judge may intrude upon the jury function of
credibility assessment." Sanchez, 969 F.2d at 1414.
An example of exceptional circumstances is where
testimony is "patently incredible or defies physical
realities," although the district court's rejection
of trial testimony by itself does not automatically
permit Rule 33 relief.
The ultimate test on a Rule 33 motion is whether
letting a guilty verdict stand would be a manifest
injustice. See Sanchez, 969 F.2d at 1414. The trial
court must be satisfied that "competent, satisfactory
and sufficient evidence" in the record supports the
jury verdict. Id. . . . The district court must
examine, the entire case, take into account all facts
and circumstances, and make an objective evaluation.
See id. "There must be a real concern that an
innocent person may have been convicted." Id.
Generally, the trial court has broader discretion to
grant a new trial under Rule 33 than to grant a
motion for acquittal under Rule 29, but it
nonetheless must exercise the Rule 33 authority
"sparingly" and in "the most extraordinary
circumstances." Sanchez, 969 F.2d at 1414 (emphasis
In this case, notwithstanding the checkered past and poor
character of Hart-a situation not uncommon in the criminal
justice field-in view of the overwhelming corroborative
evidence, his testimony could not be found to be incredible as a
matter of law. The Court finds no miscarriage of justice
involving Hart's testimony. On the contrary, there is
substantial testimony and scientific evidence linking Peterson
to this conspiracy, including the shooting in 1991, the two
arsons in 1995 and, with reasonable foreseeability, the use of
Molotov cocktails in perpetrating the arsons.
It is well-established that a conviction may be sustained on
the basis of the testimony of a single accomplice, so long as
that testimony is not incredible on its face and is capable of
establishing guilt beyond a reasonable doubt. United States v.
Diaz, 176 F.3d 52, 92 (2d Cir. 1999). In fact, "any lack of
corroboration of an accomplice's or co-conspirators testimony
goes merely to the weight of the evidence, not to its
sufficiency, and a challenge to `the weight is a matter for
argument to the jury . . .'" Diaz, 176 F.3d at 92 (quoting
United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989)). Here
there is substantial corroboration of Hart's testimony.
Indeed, the case relied upon by the defendant, United States
v. Sanchez, 969 F.2d 1409 (2d Cir. 1992), does not support the
defendant's position. In Sanchez the district judge set aside
a guilty verdict and ordered a new trial based on his
determination that perjured testimony was given by three police
officers. However, the Second Circuit reversed and reinstated
the jury verdict. The Court reiterated the Rule:
It long has been our rule that trial courts "must
defer to the jury's resolution of the weight of the
evidence and the credibility of the witnesses."
United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.
1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823,
74 L.Ed.2d 1019 (1983). It is only where exceptional
circumstances can be demonstrated that the trial
judge may intrude upon the jury function of
credibility assessment. See United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). Where
testimony is patently incredible or defies physical
realities, it may be rejected by the court, despite
the jury's evaluation. See e.g., Holland v. Allied
Structural Steel Co., 539 F.2d 476, 483 (5th Cir.
1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1136,
51 L.Ed.2d 557 (1977); Zollman v. Symington Wayne
Corp., 438 F.2d 28, 31-32 (7th Cir.), cert.
denied, 404 U.S. 827, 92 S.Ct. 59, 30 L.Ed.2d 55
(1971). . . . The test is whether "it would be a
manifest injustice to let the guilty verdict stand."
United States v. Reed, 875 F.2d 107, 114 (7th Cir.
Id. at 1414.
Reviewing the evidence as a whole, the Court finds that Hart's
testimony is not patently incredible nor does it defy physical
realities. There is no "manifest injustice" with regard to the
convictions in this case. The defendant's Rule 33 motion is
III. AS TO THE "FUTURE" CLAIM OF INEFFECTIVE ASSISTANCE OF
Finally, counsel for Peterson moves the Court for a new trial
"based upon the claim the counsel was ineffective at trial and
to preserve said issue for appellate review should same be
necessary or advised. In sum, I will not personally fail to
assert same and thus potentially waive any
claim that could be asserted by Mr. Peterson. . . . I do not
want to effectuate any waiver of such claims, and ask the court
to so find as such."
While Peterson's potential claim of ineffective assistance of
trial counsel may be premature, see, e.g., United States v.
Pena, 233 F.3d 170, 174, n. 6 (2d Cir. 2000), insofar as this
Court has the power, it finds he has not waived such a claim.
For the reasons set forth above, the Court denies the
defendant's motion for a judgment of acquittal pursuant to
Rule 29 and denies the defendant's motion for a new trial pursuant to
Rule 33. The jury's verdict finding the defendant guilty on all
seven counts will stand.
As stated previously, the defendant will be sentenced on
Friday, February 22, 2002 at 10:00 a.m.