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February 18, 2004.


The opinion of the court was delivered by: JOHN GLEESON, District Judge Page 2



  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 Rule 29 Motion

  1. The Evidence at Trial

  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 so Page 4 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.) Page 5

  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.) Page 6 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. at 391-92.)

  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.) Page 7 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 Page 8 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 Page 9 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, 561-62, 567.)

  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. at 429.)

  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, Page 10 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 Page 11 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 Street]?
A Yes.
  Q Has he hung out with THP members there? Page 12

  A Yes.

  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 know.
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?
A Yes.
. . . .
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 Page 13 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.)

  2. The Rule 29 Standard

  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 Page 14 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 Page 15 (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 Page 16 entertain a reasonable doubt.'" Glenn, 312 F.3d at 70 (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)).

  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 Page 17 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 stated:
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 girlfriend.
. . . .
  [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. Page 18
 (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?
A Yes.
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?
A Yes.
Q Okay. Then Angel [D'Angelo] was present when this happened, correct?
A Yes.
Q Angel went to protect Ivette; is that correct?
A Yes.
Q That was your common bond, both of you wanted to protect Ivette?
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. Page 19

  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. Page 20 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 ...

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