United States District Court, S.D. New York
January 8, 2004.
UNITED STATES OF AMERICA against RICARDO DELVI, et al., Defendants
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
MEMORANDUM OPINION AND ORDER
Angel Cordero was convicted, inter alia, of murder in aid of a
narcotics conspiracy, based on a theory of aiding and abetting. See
Government's Memorandum of Law in Opposition to Defendants' Post-Trial
Motions at 2. Cordero now seeks an order of acquittal, pursuant to Rule 29
of the Federal Rules of Criminal Procedure, or, in the alternative, an
order setting aside the verdict on this Count of his conviction pursuant
to Rule 33 of the Federal Rules of Criminal Procedure.
Cordero's Rule 29 motion is denied. It is well settled that when
considering a motion for acquittal pursuant to Rule 29, a court must view
the evidence in the light most favorable to the Government, and may
overturn a conviction only where "`no rational trier of fact' could have
concluded that the Government met its burden of proof." United States v.
Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (quoting United States v.
Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). Moreover, a court must "defer
to the jury's assessment of witness credibility and the jury's resolution
of conflicting testimony." United States v. Bala,
236 F.3d 87, 93-94 (2d Cir. 2000). Thus, even where the Government
witnesses testified pursuant to cooperation agreements, and "their
testimony was pock-marked with inconsistencies, at this stage [the Court]
credit[s] what they said." Glenn, 312 F.3d at 64.
With this standard of review in mind, the case against Cordero under
Count II is simple: Ricardo Delvi offered to pay $5,000 to anyone who
would kill a member of the rival gang, Cordero backed up the offer, and
Edgar Sanchez subsequently murdered Earl Edwards (a member of the rival
gang). Cordero's conduct in offering to back up the payment constituted
classic aiding and abetting, and he therefore is as guilty of the murder
as if he committed it directly. See Nye & Nissen v. United States,
336 U.S. 613, 618 (1949) (one who aids, abets, counsels, commands,
induces, or procures the commission of an act is as responsible for that
act as if he committed it directly). Although the only direct evidence
that Cordero backed up Delvi's offer was the testimony of Roberto
Benitez, a cooperating witness whose credibility is somewhat dubious, the
jury clearly credited that testimony, and I must do the same. See Glenn,
312 F.3d at 64.
Cordero argues that the murder charged in Count II was "specific to
Earl Edwards," 12/19/03 Letter from Daniel Nobel, Cordero's counsel, to
the Court at 3, and that there is no
evidence that Cordero "specifically counseled, commanded, induced,
procured or caused the killing of Earl Edwards," id. at 4. According to
Cordero, at best the evidence demonstrated that he had no specific target
in mind when he backed up Delvi's offer and when he drove around with
other members of the Hughes Boys looking for members of the rival gang.
See id. at 4-5.
This argument is unavailing. Aiding and abetting requires the
Government to prove that (1) someone other than the defendant committed
the underlying crime, and (2) the defendant committed a voluntary act
with the specific intent that the act bring about the underlying crime.
See United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001); United
States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996); United States v.
Wiley, 846 F.2d 150, 154 (2d Cir. 1988). A defendant "cannot be convicted
as an aider and abettor unless he `consciously assisted the commission of
the specific crime in some active way.'" United States v. Medina,
32 F.3d 40, 45 (2d Cir. 1994) (quoting United States v. Dickerson,
508 F.2d 1216, 1218 (2d Cir. 1975)). Thus, the Government must prove that
the defendant knew the specific nature of the underlying crime. See
United States v. Friedman, 300 F.3d 111, 124 (2d Cir. 2002).
The Government has met its burden because it persuaded the jury, beyond
a reasonable doubt, that Cordero offered to insure payment to Sanchez if
he murdered a member of the rival
gang, and Sanchez subsequently killed a member of that gang. Cordero knew
the specific nature of the underlying crime murder and he
consciously assisted and counseled Sanchez to carry out that crime.
Cordero's claim that he had no specific target in mind is simply false:
he identified an entire group of people that he wanted Sanchez to
murder; the fact that Cordero did not know who the first victim in that
group would be is of no moment because he had the requisite specific
intent to murder, and to aid and abet in a murder or series of murders.
Under these circumstances, I cannot conclude that no rational trier of
fact could have found that the Government met its burden of proof, and
Cordero's Rule 29 motion is denied.
Similarly, in light of the direct and circumstantial evidence
supporting Cordero's conviction on this charge, I am satisfied that there
is "`competent, satisfactory and sufficient evidence' in the record
support[ing] the jury verdict." United States v. Ferguson, 246 F.3d 129,
134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414
(2d Cir. 1992) (new trial should be granted only in "exceptional
circumstances" where allowing a guilty verdict to stand would constitute
a manifest injustice)). Specifically, in addition to Benitez's direct
testimony regarding Cordero's offer to back up Delvi's payment, there was
evidence that in the days following the offer, Cordero participated in
armed excursions to find members of the rival
there was evidence that in the days following the offer, Cordero
participated in armed excursions to find members of the rival gang, and
went on an outing with members of his own gang to purchase a
semi-automatic pistol. This evidence, taken as a whole, supports the
jury's verdict. Therefore, to the extent Cordero moves for a new trial
pursuant to Rule 33 of the Federal Rules of Criminal Procedure, his motion
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