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U.S. v. DELVI

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, Page 2 236 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 Page 3 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 Page 4 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 Page 5 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 is denied.

  SO ORDERED.

20040108

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