The opinion of the court was delivered by: JOHN GLEESON, District Judge Page 2
[EDITORS' NOTE: THIS PAGE CONTAINED "TABLE OF CONTENTS".]
On April 3, 2003, defendant Angel D'Angelo (also known as "L.A.") was
convicted by a jury of murder in aid of racketeering, in violation of
18 U.S.C. § 1959(a)(1), and two related firearm counts, in violation of
18 U.S.C. § 924(c), (j), all based on the July 1, 1999, shooting of
Thomas Palazzotto. D'Angelo now moves for a judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29, or, in the
alternative, for a new trial pursuant to Federal Rule of Criminal
Procedure 33. For the reasons stated below, the motions are granted.
Specifically, because the evidence was insufficient to establish that
D'Angelo committed the murder to gain entrance into a racketeering
enterprise, a judgment of acquittal will be entered on that charge. Since
an essential element of the firearm convictions is the conviction on the
§ 1959 charge, those convictions fail as well, and judgment will be
entered for D'Angelo. In the alternative, in the event of a successful
appeal of my determination of the Rule 29 motion, a new trial of all
charges is ordered in light of the rampant perjury at trial by the
government's accomplice witnesses.
a. The Events Surrounding the Murder of Thomas Palazzotto
The evidence at trial, viewed in the light most favorable to the
government, established the following facts. On July 1, 1999, at
approximately 10:30 p.m., Thomas Palazzotto was shot and killed on the
corner of Columbia and Kane Streets in the Red Hook section of Brooklyn.
Palazzotto was killed in retaliation for a shootout at a park an hour or
earlier between two rival gangs: The Hard Pack, or "THP," and the
Luquer Street Boys, or "LSB" (also known as the "Court Street Boys").
LSB was a street gang based in Red Hook and in the adjacent
neighborhood, Carroll Gardens. Its members sold powder cocaine, crack
cocaine, and marijuana. (Tr. at 152-55.) Felix Deazevedo, among others,
was a member. (Id. at 152.) Palazzotto, the murder victim in
this case, was associated with LSB, though not a member. (See
id. at 169.)
THP was a street gang based in the Park Slope section of Brooklyn. Its
members engaged in various criminal activities, including the sale of
heroin, crack cocaine, and marijuana, and the sale of firearms.
(E.g., id. at 230-31, 271-75, 282-83, 386, 541-42.)
Its leader was Albert Alvarado (also known as "Al Sharpton," and referred
to here as "A. Alvarado"),*fn1 and its members included his younger
brother, Robert Alvarado (who went by "Rob" and who will be referred to
here as "R. Alvarado"), and Edward Maggiore (also known as "Reco").
(E.g., Id. at 224-25, 277-78, 387-89, 538-39.)
The Cash Money Boys (or Brothers), or "CMB" (also known as the "Fifth
Avenue Boys"), was another street gang, which rivaled both THP and LSB.
(E.g., Id. at 284-85.) It was based in the Sunset
Park section of Brooklyn. (Id. at 155.)
D'Angelo, who lived in Red Hook, was never a member of any of these
gangs. His initial connection to THP was through his girlfriend (and the
mother of his two children), Charity Velez. Velez has a sister, Ivette
Rodriguez, who is the former girlfriend of A. Alvarado (and the mother of
his child). (Id. at 288-89, 363, 393.) Thus, before A. Alvarado
broke up with Rodriguez, he and D'Angelo were, in effect, married to
sisters. D'Angelo had a "nine to five" job as a "stock boy."
(Id. at 364.) He was not involved in THP's drug or gun
business. (E.g., id. at 245, 354, 485-86.)
Around mid-May 1999, an incident occurred involving Deazevedo,
Rodriguez, and D'Angelo. (Id. at 163-66, 204-06, 290-91.)
Deazevedo, who had become acquainted with Rodriguez a few weeks earlier
through a mutual friend (id. at 158-61), was driving his car in
Red Hook with his friend, Brandon Vincent. (Id. at 164-65.)
Deazevedo saw Rodriguez, who was walking on the street with D'Angelo,
Velez, D'Angelo's brother (Alexis Torres), and Torres's then-girlfriend
(Lisa DeMaio). (Id. at 163-65, 202-06, 290-91.) Deazevedo
called out to Rodriguez and asked if she was going to a club later.
(Id. at 164-65, 204.) D'Angelo approached Deazevedo in the car,
swung his arm inside the car on the passenger side, and attempted to
either cut or punch Deazevedo or Vincent, though no one was hurt.
(Id. at 164-65, 204-05.)
Rodriguez immediately reported this encounter to A. Alvarado, telling
him that Deazevedo had tried to slash her and that D'Angelo had tried to
slash Deazevedo. (Id at 290-91, 544-45; see also
Id. at 166-67.) A. Alvarado responded by searching for
Deazevedo in order to retaliate against him for disrespecting Rodriguez.
(Id at 291-93.) D'Angelo, R. Alvarado, Maggiore, and Miguel
Padilla assisted A. Alvarado in this effort. (Id. at 293,
295-98, 405-06, 546-47). A. Alvarado and Maggiore twice tried to confront
Deazevedo at his home. (Id. at 405-06.)
On another occasion, when A. Alvarado, R. Alvarado, and
Padilla were together in a barbershop, they chased Deazevedo and Aviles
in a car after seeing them drive by. (Id. at 546-47.) On a
fourth occasion, A. Alvarado and Maggiore chased Deazevedo on foot into a
car-service building, where A. Alvarado beat and kicked Deazevedo while
Maggiore held him down. (Id. at 167-68, 297-98.)
Prior to the incident described above in which Deazevedo disrespected
Rodriguez, A. Alvarado had had little contact with D'Angelo.*fn2
(Id. at 293-94.) Following that incident in mid-May 1999,
however, and continuing until the murder of Palazzotto on July 1, 1999,
A. Alvarado began seeing D'Angelo almost every other day. (Id.
at 294.) A. Alvarado testified that he and D'Angelo had a "common goal"
during that period, namely, retaliating against Deazevedo and LSB.
(Id. at 294, 323.)
During this same period of time, THP was feuding with CMB.
(E.g., id. at 231, 285, 391-92, 542.) This feud began
around February 1999, over an incident during which CMB members stabbed
and shot A. Alvarado, Maggiore, and another THP member, Andre Diaz.
(Id. at 285, 391.) By early June of that year, THP and CMB
members had violently confronted each other several times. (Id.
On June 10, 1999, A. Alvarado asked D'Angelo "randomly" if D'Angelo
could help him get bullets. (Id. at 300-01.) D'Angelo told A.
Alvarado that he could help. (Id. at 301.) Three weeks later,
on July 1, 1999, Maggiore and A. Alvarado picked up D'Angelo, and the
three went to the Walt Whitman Housing Projects in the Fort Greene
section of Brooklyn. (Id. at 301-02, 406-07.)
There, D'Angelo spoke with his cousin and was given a
bag containing approximately fifty bullets. (Id at 301-02,
407-08, 524.) Neither A. Alvarado nor any other member of THP paid
D'Angelo for the bullets. (Id. at 301-02, 408.)
On their way back to Park Slope, the three passed through Carroll
Gardens and spotted Deazevedo on Court Street. (Id. at 302-03,
408.) A. Alvarado did not want to stop; he was satisfied that the dispute
with Deazevedo had been resolved. (Id. at 303.) He pulled over,
however, after D'Angelo told him to do so. (Id.) The three, led
by D'Angelo, chased Deazevedo on foot; D'Angelo carried a gun during the
chase.*fn3 (Id. at 409-10; see also id. at 169-70.)
Deazevedo outran D'Angelo, A. Alvarado, and Maggiore, and was eventually
picked up by Palazzotto. (Id at 170.) After this chase, A.
Alvarado, Maggiore, and D'Angelo went to a park on Sixth Avenue in Park
Slope frequented by THP, where they met several THP members.
(Id. at 304-05, 410-12, 548-50.)
Meanwhile, Deazevedo had decided to retaliate. He gathered several LSB
members, who, armed with golf clubs and a gun, drove in two cars, one of
which was Palazzotto's gold Cadillac, to THP's park on Sixth Avenue.
(Id. at 170-72.) Approaching the park, Deazevedo saw the THP
members, and Jose Burgos (also known as "Belo" (id at 153)),
who was carrying the gun for LSB, opened fire. (Id at 174-77.)
A. Alvarado, Torres, Maggiore, and Padilla all returned fire.
(Id. at 238, 240, 308, 413-15.) R. Alvarado took cover in the
back seat of Maggiore's rental car, which was parked nearby.
(Id. at 552-53.) The THP members fled
the park as soon as the shooting ended; A. Alvarado with a THP
member called "Coco" or "C-Murder," Torres in his own car, and Maggiore,
R. Alvarado, and D'Angelo in Maggiore's rental car. (Id. at
238-40, 309, 416-17, 553-54.)
Maggiore initially drove south on the highway, but then decided to
reverse course and head north to get out of the neighborhood.
(Id. at 417-18, 555-56.) D'Angelo received a page from his
girlfriend, Velez, and after speaking to her, asked Maggiore to take him
home. (Id. at 556, 581.) So the three headed toward D'Angelo's
Red Hook home. (Id.) Once they entered the neighborhood,
however, D'Angelo began directing Maggiore where to drive in order to
find LSB members, saying, "[Y]eah, yeah these niggers be over here, these
niggers be over there." (Id. at 557.) D'Angelo and Maggiore
were looking for Deazevedo and Aviles. (Id. at 418, 557.) They
ended up on Columbia Street, and as they passed Sedgwick Street, where
Palazzotto was parking his car, Maggiore and D'Angelo exclaimed, "[T]here
they go."*fn4 (Id. at 418-19, 557-58, 617.) Maggiore stopped
the car and told R. Alvarado to get out and get the gun that Maggiore had
hidden under the hood. (Id. at 420, 558-59.) R. Alvarado tried
to retrieve the gun, but he could not unlatch the hood. (Id. at
559.) Maggiore thereupon retrieved the gun, which he passed to R.
Alvarado after returning to the car. (Id.) At the same time,
D'Angelo was yelling at the others to give him the gun, which R. Alvarado
did. (Id. at 420, 559.) As Maggiore turned the car
around and began pursuing Palazzotto, who was now running down
Columbia Street toward Kane Street (id. at 420, 560), D'Angelo
announced that he was going to "smoke the motherfucker" (id. at
567). Maggiore passed Palazzotto and drove the car onto the sidewalk in
front of him, cutting him off. (Id. at 420-21, 560-61.)
D'Angelo fired one shot out of the rear passenger window that struck
Palazzotto in the abdomen and killed him. (Id. at 421, 423,
The three then fled to D'Angelo's cousin's apartment in the Marcy
Projects in Brooklyn. (Id. at 424-26, 569-70.) D'Angelo told
his cousin that he had just shot someone, and when the cousin asked who
D'Angelo had shot, D'Angelo responded, "[T]hese dudes that tried to come
at me and my sister-in-law while I was bringing them to work. They tried
to-it was Felix [Deazevedo] and them trying to curse at my sister-in-law
and them." (Id. at 570.) Throughout the night, Maggiore called
A. Alvarado who was with his new girlfriend, Milena Mora several times
in order to report the "state of the war" with CMB. (Id. at
313-14, 426-27.) Maggiore used code to tell A. Alvarado that someone had
been shot, saying only that someone "tripped and fell" or "fell on the
floor." (Id. at 313-14, 427-28.) After drinking beer and
smoking marijuana, Maggiore, R. Alvarado, and D'Angelo left the Marcy
Projects. (Id. at 428, 571.) Maggiore first drove D'Angelo
home, where D'Angelo asked Maggiore for the gun used to shoot Palazzotto.
(Id. at 428-29, 571-72.) Maggiore gave it to D'Angelo, who
walked toward New York Harbor to "dispose of the evidence. (Id.
The next day, July 2, 1999, D'Angelo left Brooklyn for Amsterdam, New
York (id. at 662), and he relocated permanently to Amsterdam
within a week of the murder (id.; see also Gov't Exs.
31, 48 (D'Angelo's employment records)). About a month after the murder,
D'Angelo visited R. Alvarado at R. Alvarado's home. (Tr. at 573.)
D'Angelo asked R. Alvarado whether he thought Maggiore "would snitch,"
because D'Angelo had a man who would "cap" Maggiore. (Id.) R.
Alvarado did not tell D'Angelo exactly where Maggiore lived.
(Id. at 574.) In July 2000, A. Alvarado had a similar
conversation with D'Angelo, in which D'Angelo told A. Alvarado that he
wanted to find Maggiore, who D'Angelo believed was "telling," so he could
"shut him up." (Id. at 315.)
b. "Gaining Entrance to" THP
The government's evidence at trial included the testimony of A.
Alvarado, R. Alvarado, Maggiore, Torres, and Deazevedo, all of whom had
pleaded guilty to violent offenses and entered into cooperation
agreements with the government. In addition to testifying about the
murder of Palazzotto and the events leading up to it, the four THP
cooperating witnesses-A. Alvarado, R. Alvarado, Maggiore, and
Torres-testified about THP and what membership in that gang entailed.
Torres, who joined THP around 1996, testified that THP began as a rap
group, eventually branching out into drug dealing and other criminal
activities, including assaults, weapons possession, and shootings.
(Id. at 224, 230-32, 244.) When asked how he had become a
member, Torres answered, "It just came with it, came with the territory
and the actions, you know, I started selling drugs, and I was hanging
around them, and it just fell right into place." (Id. at 224.)
Torres further testified that THP "had a reputation to uphold themselves
if any problems [i.e., threats from rival gangs] ever came."
(Id. at 229.)
A. Alvarado testified that he had joined THP in 1990 (id. at
277) and that being a member meant "help [ing] each other in a situation
where we fighting with anyone, against other rival gang members."
(Id. at 282; see also id. at 379 (THP
members stand up for each other in a
fight and have shot people to protect THP members).) When asked how
he became a member, he responded, "A group of individuals decided to just
stick up for each other and gave ourselves a name." (Id. at
277-78.) R. Alvarado got involved with THP by growing up with its
members. (Id. at 538.) He testified that THP members would back
each other up in a fight and would sometimes retaliate against people.
(Id. at 596.)
Maggiore, who joined THP sometime in the autumn of 1998, initially
became involved with the group just by "hanging around with them."
(Id. at 387.) When asked how someone became a member of THP,
Maggiore responded, "Just being-hanging around, hanging around, you know
what I'm saying? Be cool with guys around you, members feeling you,
feeling you out." (Id. at 522.) Maggiore continued:
[T]here was no initiation. It was like anybody
could . . . you chill with us, you a member
like us. . . .
It wasn't like you had to kill somebody, cut
somebody, nothing, sell drugs or something. You
could be a legitimate person working on Wall
Street or working delivering pizza. You was a cool
dude, guys were feeling you getting along with
everybody, you know.
(Id. at 522-23; see also id. at 513
(no initiation ceremony).) Maggiore further testified:
Q How do you become a member of THP?
A It's nothing like the way Bloods or Crips or the
Latin Kings do it, nothing like that. It's
feeling, you know, that you're down with us.
They do a handshake. You chill. You trustable to
hang around with.
(Id. at 513-14.) Maggiore later gave the following
testimony about D'Angelo's involvement with THP:
Q Have you seen the defendant at that park at 16th
and Eighth [sic: Sixth Avenue and Eighteenth
Q Has he hung out with THP members there?
Q And has he smoked weed with you guys?
A I don't know if he smoked weed, I don't remember
if he smoked weed or not, but he was there.
Q Was he with you the night after the shooting?
A I don't recall if he smoked. I know Rob smoked.
Q But he did hang out with you?
A Yes. He did hang out, bullshit with us, you
Q And he got bullets for you?
A Yes, he did get bullets for us.
Q . . . [H]e, you and Al Alvarado chased Felix
and the guys you guys were having a beef with?
. . . .
Q He jumped in your car the night of the shooting;
is that correct?
A After the shooting, yes.
(Id. at 523-24.) Maggiore also testified that, as a THP
member, he was involved in "gang wars" alongside fellow members.
(Id. at 478.)
The THP cooperating witnesses testified that D'Angelo began associating
with THP members more frequently in May or June 1999, following the
incident between Deazevedo and Rodriguez. (Id. at 223, 293-94,
393, 543-44.) Torres remembered D'Angelo telling some of the THP members
"that he had chased a couple of the guys from Court Street."
(Id. at 234-35.)
The THP cooperating witnesses uniformly testified that D'Angelo was not
a member of THP. (Id at 247, 345, 393, 451, 597.) A. Alvarado
and Maggiore gave testimony that supports an inference that D'Angelo had
offered to help THP in its war with CMB. Specifically, A. Alvarado
testifed that, after learning that Deazevedo was trying to ingratiate
himself with CMB, D'Angelo offered to walk through CMB's neighborhood
"and see if they were there and he would react, he would retaliate for"
A. Alvarado. (Id at 295.) A. Alvarado considered this offer as
a possible advantage for THP, because CMB members would not
recognize D'Angelo and would therefore be taken by surprise.
(Id.) Maggiore, who learned of the offer from A. Alvarado,
described it more expansively: "Sharpton [i.e., A. Alvarado] told me
something that was a song, favor for a favor and he's like oh, that's
what LA [i.e., D'Angelo] going to do, a favor for a favor with us for the
CMB guys." (Id. at 393.) In return, A. Alvarado and Maggiore
"were going to take care of some problems [D'Angelo] had in the
projects." (Id.) On another occasion, D'Angelo helped A.
Alvarado and Maggiore obtain bullets, as described above. (Id.
at 299-302, 406-08, 524.) Maggiore considered D'Angelo to be "part of the
gang war." (Id. at 451.)*fn5
c. D'Angelo's Rule 29 Motion
At the close of the government's case, D'Angelo moved for a judgment of
acquittal, arguing that the government had failed to adduce sufficient
evidence that D'Angelo was motivated by a desire to gain entrance into
THP, and that the government had failed to prove that D'Angelo
intentionally killed Palazzotto. (Id. at 725-27'.) I reserved
decision on the motion. (Id. at 729.) The jury convicted
D'Angelo on April 3, 2003, finding him guilty of all three counts of the
indictment. (Id. at 832-34.)
Federal Rule of Criminal Procedure 29(a) provides: "After the
government closes its evidence or after the close of all the evidence,
the court on the defendant's motion must enter a judgment of acquittal of
any offense for which the evidence is insufficient to sustain a
conviction."*fn6 "A defendant challenging the sufficiency of the
evidence supporting a conviction faces a `heavy burden.'" United
States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002) (quoting United
States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). I may overturn
a conviction on that basis "only if, after viewing the evidence in the
light most favorable to the Government and drawing all reasonable
inferences in its favor," I find that `"no rational trier of fact' could
have concluded that the Government met its burden of proof."
Id. (quoting United States v. Morrison, 153 F.3d 34,
49 (2d Cir. 1998)). "`[T]he relevant question is whether . . .
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'" Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also,
e.g., United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001)
(same); United States v. Strauss, 999 F.2d 692, 696 (2d Cir.
1993) ("[A] defendant must demonstrate that there was no evidence from
which a reasonable mind might fairly conclude guilt beyond a reasonable
doubt." (quotation marks omitted)). My evaluation considers `"the
evidence in its totality,' and the Government `need not negate every
theory of innocence.'" Glenn, 312 F.3d at 63 (quoting United
States v. Autuori. 212 F.3d 105, 114 (2d Cir. 2000)); see also,
e.g. United States v. Thai, 29 F.3d 785, 817 (2d Cir.
1994) ("We must view the pieces of evidence not in isolation but in
conjunction. . . ."). Moreover, "the prosecution may prove its case
entirely by circumstantial evidence so long as guilt is established
beyond a reasonable doubt." Glenn, 312 F.3d at 64.
"`[T]he court must be careful to avoid usurping the role of the jury.'"
Autuori, 212 F.3d at 114 (alteration in original) (quoting
United States v. Guadagna, 183 F.3d 122, 129
(2d Cir. 1999)). It is well-settled that I must "`defer to the
jury's assessment of witness credibility and the jury's resolution of
conflicting testimony'" when reviewing the sufficiency of the evidence.
Glenn, 312 F.3d at 64 (quoting United States v. Bala,
236 F.3d 87, 93-94 (2d Cir. 2000)); see also, e.g.
Autuori, 212 F.3d at 114 ("We may not substitute our own
determinations of credibility or relative weight of the evidence for that
of the jury."); United States v. Martinez, 54 F.3d 1040, 1043
(2d Cir. 1995) ("[I]t is the task of the jury, not the court, to choose
among competing inferences."). The relevant inquiry is `"whether upon the
evidence, giving full play to the right of the jury to determine
credibility, weigh the evidence, and draw justifiable inferences of fact,
a reasonable mind might fairly conclude guilt beyond a reasonable
doubt.'" Autuori, 212 F.3d at 114 (quoting Mariani,
725 F.2d at 865). "[I]f the court concludes that either of the two
results, a reasonable doubt or no reasonable doubt, is fairly possible,
[the court] must let the jury decide the matter." Id.
(alterations in original) (quotation marks omitted).
The Second Circuit has emphasized, however, that where a fact to be
proved is also an element of the offense here, that D'Angelo
murdered Palazzotto for the purpose of gaining entrance to THP "it
is not enough that the inferences in the government's favor are
permissible." Martinez, 54 F.3d at 1043. I "must also be
satisfied that the inferences are sufficiently supported to permit a
rational juror to find that the element, like all elements, is
established beyond a reasonable doubt." Id. (citing United
States v. Soto, 47 F.3d 546, 549 (2d Cir. 1995); United States
v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994)). "[I]f the evidence
viewed in the light most favorable to the prosecution gives `equal or
nearly equal circumstantial support to a theory of guilt and a theory of
innocence,' then `a reasonable jury must necessarily
entertain a reasonable doubt.'" Glenn, 312 F.3d at 70
(quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir.
3. The "Gaining Entrance to" Evidence
The murder in aid of racketeering statute, 18 U.S.C. § 1959(a),
prohibits, inter alia, murder committed "for the purpose of gaining
entrance to . . . an enterprise engaged in racketeering
activity."*fn7 This element of the crime requires the government to
prove beyond a reasonable doubt that D'Angelo's "general" purpose in
murdering Palazzotto was to gain entry into THP. United States v.
Thai, 29 F.3d 785, 817 (2d Cir. 1994): see also United States v.
Desena, 260 F.3d 150, 155 (2d Cir. 2001) (quoting
Thai, 29 F.3d at 817). Gaining entrance into THP need not have
been D'Angelo's only, or even his primary, concern, if the murder was
committed "`as an integral aspect of membership,'" or if D'Angelo "knew
it was expected of him" in order to become a member of THP.
Thai, 29 F.3d at 817 (quoting United States v.
Concepcion, 983 F.2d 369, 381 (2d Cir. 1992)). For the reasons set
forth below, I find that no rational juror could have inferred that
D'Angelo murdered Palazzotto for any of these reasons, or with even the
general purpose of gaining entrance into THP.
In opposing this motion, the government argues that the evidence at
trial showed that THP had no formal initiation process; one could become
a member just by hanging around with the gang, being "cool" and
"trustable," and being willing to stick up for the other members of the
gang, sometimes through violence. (E.g., Tr. at 224, 229,
277-78, 282, 379, 387, 513-14, 522-23, 538, 596.) Aside from the fact
that D'Angelo began associating with THP members in
May or June 1999 (id. at 293-94; see also id.
at 223, 393, 543-45), the government focuses on four incidents that it
claims evidence D'Angelo's intent to gain entrance into THP: (1)
D'Angelo's offer to walk through CMB's neighborhood to see if CMB members
were there and, if so, to retaliate for THP (id. at 295, 393);
(2) D'Angelo's obtaining bullets for THP (id. at 299-302,
406-08, 524); (3) the July 1, 1999, chase of Deazevedo, led by D'Angelo
(id. at 302-04, 408-10), and (4) the murder of Palazzotto.
(See Gov't's Mem. Opp'n Def.'s Mot. J. Acquittal or New Trial
at 25-26.) I address each contention in turn.
a. D'Angelo's Association with THP
As noted above, D'Angelo began associating with members of THP more
frequently in May or June 1999. These dates, however, coincide with the
mid-May 1999 incident in which Deazevedo made some remarks to Rodriguez
in front of D'Angelo, who proceeded to confront Deazevedo. (Tr. at
163-66, 204-06, 290-91.) Indeed, in its opening at trial, the government
You may be surprised to learn that despite the
fact that the LSB and the THP were involved in
drugs and various other violation[s], the dispute
that led to Thomas Palaz[z]otto's death was not
over drugs, it wasn't even over money. The
dispute that led to the death of Thomas
Palaz[z]otto started over a woman. That
woman's name was Sonia Ivette Rodriguez. Miss
Rodriguez is the mother of Albert Alvarado's
child. She's also the sister of the defendant's
. . . .
[After the mid-May 1999 incident between
D'Angelo, Deazevedo, and Rodriguez, during which
D'Angelo tried to slash Deazevedo,] Miss Rodriguez
immediately called Al Alvarado, the father of her
child and a Hard Pack member. She told him what
happened, and that night Al went hunting for Felix
with his gun. But Al didn't find Felix that night.
Instead, he found the defendant, who was also
looking for Felix.
(Id. at 109 (emphasis added).) The testimony of A.
Alvarado further established that his association with D'Angelo had as
its sole purpose the vindication of Rodriguez's honor by retaliating
against Deazevedo. On direct examination, A. Alvarado described that as
his and D'Angelo's "common goal" (id. at 294), and he
elaborated on cross-examination as follows:
Q Before May or June of 1999, you really didn't
have much to do with Mr. D'Angelo, correct?
Q Okay. The only reason why you ended up seeing
each other a lot was the incident where Felix
[Deazevedo] threatened to slash Ivette
[Rodriguez], is that correct?
Q Okay. Then Angel [D'Angelo] was present when
this happened, correct?
Q Angel went to protect Ivette; is that correct?
Q That was your common bond, both of you wanted to
A No, not that we both wanted to protect Ivette.
Not that we both wanted to protect Ivette. We
just wanted to get the individuals that were
responsible for it.
(Id. at 362-63.)
Torres, a member of THP since 1996, testified that he met D'Angelo only
after D'Angelo's May 1999 altercation with Deazevedo. (Id. at
223.) Torres never heard D'Angelo talk about guns or drugs.
(Id. at 253.) R. Alvarado testified that D'Angelo had never
been involved in the gang activity of "chasing down people."
(Id. at 597.) Furthermore, each cooperating THP witness
testified that D'Angelo was not a member of THP. (Id. at 247,
345, 393, 451, 597.) As set forth in more detail below, the evidence at
trial showed that after the initial altercation with Deazevedo, D'Angelo
became focused on retaliating against Deazevedo, and his association with
THP was his means to that end.
b. Obtaining Bullets for THP
The government points to the fact that D'Angelo obtained bullets for
THP as further evidence of his desire to gain entrance into the gang. A.
Alvarado testified that he told D'Angelo "randomly" that he had run out
of bullets, because of "shoot-outs with the rival gang, CMB."
(Id. at 300-01.) D'Angelo told A. Alvarado that he could help,
and, three weeks later, the two, accompanied by Maggiore, went to
D'Angelo's cousin's home in the Walt Whitman Housing Projects.
(Id. at 299-302, 406-08.) There, D'Angelo spoke with his
cousin, who gave D'Angelo a bag of about fifty bullets. (Id. at
301-02, 407-08, 524.) Neither A. Alvarado, Maggiore, nor any other member
of THP paid D'Angelo for the bullets. (Id. at 301-02, 408.)
The government contends that D'Angelo gave the bullets to A. Alvarado
and Maggiore in order to gain entrance into THP. But it presented no
evidence that D'Angelo provided the bullets to THP with the intent or
understanding that it would facilitate his entry into the gang. None of
the cooperating witnesses testified to any statements by D'Angelo that he
sought entrance into the gang or that the bullets were given in return
for gang membership or consideration for such membership. Nor did they
testify even to their belief that he sought entrance into THP. Of course,
such testimony would only be examples of evidence that would allow a
rational juror to infer that D'Angelo obtained the bullets for THP in
order to gain entrance into that gang. In light of this complete absence
of evidence of an intent other than an intent to grant a "random"
favor, I strongly doubt that the inference promoted by the government is
even permissible. However, assuming arguendo that it is, it is not
"sufficiently supported to permit a rational juror to find that the
element . . . is established beyond a reasonable doubt," United
States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citing
United States v.
Soto, 47 F.3d 546, 549 (2d Cir. 1995)). In other words,
D'Angelo's procurement of the bullets, at most, "gives `equal or nearly
equal circumstantial support to a theory of guilt and a theory of
innocence,'" and therefore `"a reasonable jury must necessarily entertain
a reasonable doubt,'" United States v. Glenn, 312 F.3d 58, 70
(2d Cir. 2002) (quoting United States v. Lopez, 74 F.3d 575,
577 (5th Cir. 1996)).
c. The Offer to Retaliate
The government also relies on D'Angelo's offer to seek out CMB members
in their neighborhood and retaliate if possible. In doing so, however,
the government ignores the details of this purported offer, which were
also established at trial. First, it was only after A. Alvarado expressed
to D'Angelo his belief that Deazevedo tried to assault Rodriguez "because
he was trying to get [in] good with . . . CMB" (Tr. at 294-95) that
D'Angelo offered to retaliate for A. Alvarado:
Q When you told LA [i.e., D'Angelo] that you were
having a problem with CMB and that Felix
[Deazevedo] was trying to get in good with CMB,
how did LA respond?
A That he asked me where they hung out at.
Q Why did he ask you that, do you know?
A Because he said he would walk through there and
see if they were there and he would react, he
would retaliate for me.
(Id. at 295.) A. Alvarado viewed this as an advantage for
THP, because the ...