United States District Court, E.D. New York
February 18, 2004.
UNITED STATES OF AMERICA -against- ANGEL D'ANGELO, Defendant
The opinion of the court was delivered by: JOHN GLEESON, District Judge Page 2
MEMORANDUM AND ORDER
[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 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
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.)
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
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 members of CMB would not recognize D'Angelo. (See
id. at 295, 393.) However, to the extent the evidence established
that D'Angelo expected something in return, it was not
membership in the gang. As Maggiore testified on direct:
Q Now, despite LA not being a member, did you and
Sharpton [i.e., Alvarado] ever talk about LA
helping THP in its battles against CMB and other
A Yes. Sharpton told me something that was a song,
favor for a favor and he's like oh, that's what
LA going to do, a favor for a favor with us for
the CMB guys.
Q Did he explain how LA would help you guys with
A He wasn't known as a member of The Hard Pack,
like I stated. Nobody wouldn't [sic] know him.
If he approached I guess I am assuming if he
approached CMB or something and got to beat Adam
Bruno up or something, they wouldn't expect it
to take out guns for him to get shot. In
return we were going to take care of some
problems he had in the projects.
Q Which projects are you referring to?
A Red Hook Housing Projects in Brooklyn.
(Id. at 393-94 (emphasis added).)*fn8
Based on this
testimony, D'Angelo's motive in offering to retaliate was not to gain
entrance into THP, but to acquire THP's assistance in some other problems
D'Angelo was having. Indeed, if D'Angelo had been a member of THP, or had
he been trying to become a member, he would not have needed to exchange
favors in this manner; rather, it would have been his responsibility to
help the other members of the gang, especially with respect to rival
gangs (see id. at 229, 277-78, 282, 379,
478, 513-14, 596), and, likewise, the other members would have been bound
to protect D'Angelo's interests (see id.).
d. The Deazevedo Chase
On July 1, 1999, D'Angelo, leading A. Alvardo and Maggiore, chased
Deazevedo down Court Street. (Id. at 169-70, 302-04, 408-10.)
The government claims that this incident is further evidence from which a
rational juror could determine that D'Angelo sought entrance into
THP. I disagree. A. Alvarado's testimony at trial established that
he (A. Alvarado) was no longer interested in harming Deazevedo:
A LA noticed Felix on a pay phone and he told me
let's go back.
Q When LA first spotted Felix, were you interested
Q Why not?
A I was content. I was happy. I was satisfied with
the first assault that I did to Felix [in the
Q Did you pull over anyway?
A LA told me to.
(Id. at 302-03.) In fact, A. Alvarado had, prior to the
July 1, 1999, chase, sought to avoid further conflict with Deazevedo by
giving him a verbal warning:
Q When was the next time [after beating Deazevedo
in the car-service building] that you saw
A I seen Felix on Smith and Ninth Street double
parked in a car.
. . . .
Q What did you do when you saw him?
A I pulled up, I triple parked next to him and I
asked if I could talk with him.
Q Were you successful in talking to him?
Q Why not?
A Because he drove off.
Q Why did you want to talk to him?
A 'Cause I just wanted to set the whole issue with
him. I wanted
Q What you mean [sic] set it straight
A I wanted to resolve it.
Q What did you plan to say to him?
A If he attempted to do anything to my son's
mother again, that I would come back and that
then we'll get involved in a situation because
of your friends CMB, `cause they're not trying
to handle their problems anyway.
Q Did you try to fight with Felix that day?
Q Why not?
A 'Cause I was satisfied with what I did to Felix
the first time [in the car-service building].
(Id. at 298-99.) On cross-examination, A. Alvarado
testified that he had not been looking for Deazevedo prior to the July 1,
1999, Court Street chase. (Id. at 368.) He also reiterated
that, despite the fact that the next time he saw Deazevedo, Deazevedo
drove away before A. Alvarado could speak to him, A. Alvarado was
"satisfied" with how things stood with Deazevedo, and that everything
between the two was "settled." (Id. at 368-69.)
This testimony refutes the government's claim that the July 1, 1999
chase of Deazevedo is evidence of D'Angelo's alleged intention to become
a member of THP. Indeed, it shows that D'Angelo's goal that day was in
conflict with the goals of A. Alvarado, the leader of THP. D'Angelo was
unwilling to settle his feud with Deazevedo, even as A. Alvarado was
trying to avoid further violence. In other words, D'Angelo was putting
his own goals above those of THP and its members. As such, no rational
juror could conclude that D'Angelo's pursuit of Deazevedo evinced an
intent to gain entrance into THP.
e. The Palazzotto Murder
Finally, the government contends, as it must, that D'Angelo murdered
Palazzotto at least in part to gain entrance into THP.*fn9 The evidence
at trial, however, showed that on July 1, 1999, D'Angelo was focused on
his feud with Deazevedo, not on becoming a member of THP. After chasing
Deazevedo earlier in the day, as described above, D'Angelo went to THP's
park at Sixth Avenue and Eighteenth Street, where R. Alvarado remembers
him being preoccupied with Deazevedo:
Q What happened when you got [to the park]?
A There was a crowd of people. LA, Reco, my
brother, June, Jose Torres, Vladimir Garcia, and
I had shook my brother's hand and Vladimir's
hand at the time. Shook their hands and I
overheard [D'Angelo] talking about the incident
that just happened with my sister-in-law and
them and his wife.
Q What was [D'Angelo] saying?
A That these dudes started shooting at us or
something like that, and I jumped in the car and
tried to cut one of them.
(Id. at 550.)*fn10
Shortly after D'Angelo said this, members of LSB, driving by the park,
opened fire on the THP members. (Id. at 550-52; see
also id. at 235-39, 304-09, 412-16.) D'Angelo, who did not
have a gun, scrambled for cover and eventually got into Maggiore's car.
(Id. at 254-55, 362, 417, 553, 579.) The three D'Angelo,
Maggiore, and R. Alvarado then went looking for Deazevedo and another
member of LSB, "Fuji"; should they find them, Maggiore and R. Alvarado
planned on "beating" them. (Id. at 418, 557-58.) When D'Angelo
shot Palazzotto, Maggiore "panicked" because the shooting "wasn't
planned." (Id. at 421.) Maggiore's testimony on this point was
corroborated by A. Alvarado, who testified that he did not order anyone
to shoot Palazzotto.*fn11 (Id. at 326.) After Maggiore heard
the gunshot, he "turned
around," saw D'Angelo "pulling the gun inside the car," looked at
R. Alvarado, and said, "Oh, shit." (Id. at 421 (quotation marks
omitted); see also id. at 423 (same).) At trial,
Maggiore described driving away from the scene of the shooting: "We drove
down H[i]cks Street. Like, whoa, I don't know where the hell we was going
because I didn't expect the defendant-anybody to get shot or
killed. . . ." (Id. at 424-25.) Maggiore described the shooting
as an "unexplainable situation" and testified that he had not expected it
to happen. (Id. at 427.) Indeed, Maggiore, R. Alvarado, and A.
Alvarado were all "concerned" that Palazzotto had been killed.
(Id. at 452-53.)
The day after the shooting, D'Angelo left Brooklyn for Amsterdam, New
York, and had relocated to Amsterdam within a week. (Id. at
662; see also Gov't Exs. 31, 48 (D'Angelo's employment
records).) About a month after the shooting, 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.) 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.) Maggiore, however, had left the
I wasn't going to be around the neighborhood
because-until I found out what was going on, all
this crazy stuff that happened, and there was
shootings every day, and I'm not about to carry a
gun on me after this poor kid got killed, and, you
know, I don't want-I don't want to get into any
more trouble. I went out the neighborhood.
(Id. at 431.)
The government's trial evidence, if believed, establishes that the
killing of Palazzotto was neither contemplated by the members of THP nor
in their interests. Maggiore was shocked at the "unexplainable" shooting
(id. at 427), concerned that this "poor kid" had ended up dead
(id. at 431), confused about the "crazy stuff going on between
THP and LSB (id.), and forced to hide out in Staten Island
(id.). D'Angelo himself did not behave like a man who felt he
had just performed an act that would gain him entrance into a gang whose
members stood up for each other. Rather, he left New York City, returning
only to threaten to "cap" Maggiore if Maggiore were "telling" on him to
the police. (Id. at 573; see also id. at
315.) Finally, the inference that D'Angelo killed Palazzotto to gain
entrance into THP is made even more untenable by Maggiore's testimony
that killing was not required to become a member. (Id. at 522,
530.) This is not a case where a defendant was following the orders of a
gang leader. See United States v. Ferguson, 246 F.3d 129, 135
(2d Cir. 2001) (the government so arguing). Rather, the only rational
inference here was that D'Angelo was acting against the
interests of THP by suddenly shooting someone whom THP members would be
suspected of killing, even though those same THP members did not want the
murder to occur. For all of these reasons, no rational juror could
conclude that the shooting of Palazzotto evinced an intent on D'Angelo's
part to gain entrance into THP.
f. The Evidence in Its Totality
Though my discussion of the evidence above is divided into sections
based on the specific conduct cited by the government as evidence of
D'Angelo's intent, I have not lost sight of the need to review the trial
evidence as a whole. See, e.g., United States v.
Glenn, 312 F.3d 58, 63 (2d Cir. 2000) ("Our evaluation looks at the
evidence in its totality. . . ." (quotation marks
omitted)); 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. . . ."). The evidence at trial, viewed as a whole and in
the light most favorable to the government, did not prove beyond a
reasonable doubt that D'Angelo killed Palazzotto in order to gain
entrance into THP. Ruling on a Rule 33 motion, the Second Circuit in
Ferguson wrote that "for criminal liability under Section 1959
to attach, there must be evidence that [Ferguson] acted with the
expectation of gaining membership, or in furtherance of an intimate
involvement with the enterprise. In order to show this sort of
involvement, defendant must participate in the enterprise's activities."
246 F.3d at 136 (citations omitted). The lower court, granting Ferguson's
Rule 33 motion, wrote:
In certain cases, when a defendant repeatedly
engages in criminal conduct with other gang
members and those actions encompass the goals of
the conspiracy, then that participation may indeed
be sufficient to prove membership. Here, the
record is bereft of evidence that Ferguson engaged
in any of Power Rules' core activities (drug
sales, extortion, robbery). Rather, the proof is
that on two isolated occasions, Ferguson
participated with gang members in a conspiracy to
kill Gregory Ayala, a rival drug dealer. This
conduct, in the absence of any further evidence,
is not sufficient to establish membership in Power
Rules. Nor was Ferguson involved in the planning
of Power Rules' other illegal activities.
The same is true of the "gaining entrance to"
prong of the test. There is simply no credible
evidence that Ferguson sought to become a member
of Power Rules. Nor did he commit any substantive
crimes on behalf of Power Rules in an attempt to
seek membership. At most, the jury found that
Ferguson participated in two failed attempts to
find and kill Ayala. This does not rise to the
level of activity necessary to support a finding
of membership or a desire to become a member.
United States v. Ferguson, 49 F. Supp.2d 321, 327-28
(S.D.N.Y. 1999) (citations omitted), aff'd, 246 F.3d 129
cf. Thai, 29 F.3d at 817-20
(reversing gang leader's conviction for
bombing a restaurant where evidence that he did so in order to
maintain or increase his position in the gang was insufficient).
As discussed both above and later in Part B, one of the few factual
issues as to which A. Alvarado, R. Alvarado, and Maggiore gave consistent
versions at all times was that D'Angelo took no part in the core
activities of THP. He was never involved in THP's gun or drug business.
(E.g., Tr. at 245, 354, 485-86.) There was no evidence at trial
that D'Angelo engaged in violence with the gang prior to the incident
between Deazevedo and Rodriguez in 1999. Indeed, D'Angelo, who held down
a full-time job, rarely saw A. Alvarado before that incident, despite
knowing him since at least 1996. (See id. at 276 (A.
Alvarado testifying at trial in April 2003 that he had known D'Angelo for
seven years), 293-94 (A. Alvarado testifying that he rarely saw D'Angelo
prior to the incident between Deazevedo and Rodriguez, but "[a] lot more"
Furthermore, as in Thai, what is most striking here is what
the evidence did not show. See Thai, 29 F.3d
at 818 (no evidence that the bombing was in response to a threat to
Thai's gang, that he thought as a leader he would be expected to bomb the
restaurant, that an unsuccessful first bombing caused concerns among gang
members about Thai's leadership, or that in light of the first bombing
anyone inside or outside the gang had challenged or questioned Thai's
ability to lead). There was no evidence at trial that D'Angelo ever
expressed interest in becoming a member of the gang, or that the members
of THP perceived him as trying to become a member or considered him to be
a potential member. There was no evidence that D'Angelo
was ever ordered to do anything by a member of THP, or that he was
told he would be rewarded with membership for his actions. Indeed, the
evidence showed that D'Angelo's actions only soured his relationship with
THP members, as, by mid-July to August 1999, he had moved to Amsterdam,
New York, and was threatening Maggiore. (Tr. at 315, 573, 662.)
In sum, viewing the evidence in its totality, in the light most
favorable to the government, and drawing all inferences on its behalf, no
rational juror could conclude that D'Angelo shot Palazzotto with even the
general purpose of gaining entrance into THP. Therefore, for all of the
foregoing reasons, I grant D'Angelo's Rule 29 motion.*fn13
B. The Rule 33 Motion
The only difficult aspect of the motion for a new trial is
understanding why the government has opposed it. The jury's finding that
D'Angelo was guilty was a miscarriage of justice, not because the
evidence was deficient on the jurisdictional element of the offense, as
set forth above, but because the accomplice testimony implicating
D'Angelo was patently incredible. I held that view at the time of trial.
Subsequent events, including the government's concession that the
accomplice testimony was rife with perjury on critical factual issues
going to the heart of the case, have only confirmed what appeared obvious
to me at trial.
As described above, the catalyst for the murder, according to the trial
testimony of the government's accomplice witnesses, was a sudden change
of heart by D'Angelo. In the car on the way back to Red Hook after the
shooting at the park, D'Angelo was paged by Velez and, after speaking to
her, asked to be dropped off at his home in Red Hook. (Id. at
However, once they entered his neighborhood, D'Angelo suddenly and
inexplicably turned bloodthirsty, directing Maggiore where to drive,
demanding the gun after Palazzotto was spotted, and announcing his desire
to "smoke" Palazzotto. (Id. at 557-59, 567.)
Reports that Maggiore was falsely inculpating D'Angelo started
streaming in from other inmates before the trial, and they continued
after D'Angelo was convicted.*fn14 A post-trial investigation by the
government has caused the government to conclude that all three of the
accomplices who inculpated D'Angelo were lying about how the murder came
about. All three also lied about their own roles in the murder, and at
least two (A. Alvarado and Maggiore) continue to do so.
Specifically, the government now informs me that after Maggiore, R.
Alvarado, and D'Angelo left the park where the shootout occurred,
Maggiore called A. Alvarado twice. The second of these calls occurred
after Maggiore spotted Palazzotto's gold Cadillac. Maggiore asked A.
Alvarado what to do. A. Alvarado responded, `"give `em hell,'" which, the
government agrees, amounted to an order to Maggiore that Palazzotto be
shot. (Gov't Affirmation ¶ 4 ("Albert Alvarado falsely testified that
he did not order or direct the attack that led to Palazzotto's
death. . . ."); id. ¶¶ 21-24.*fn15)
Thus, the government concludes that (1) A. Alvarado falsely testified
that he did not order or direct the attack that led to Palazzotto's
death; (2) R. Alvarado intentionally failed to
tell the government about A. Alvarado's role in the offense and
falsely testified that he was not protecting anyone; (3) Maggiore did not
inform the government about A. Alvarado's role in the offense, and may
have withheld that information intentionally; and (4) Maggiore falsely
told the government, and falsely testified at trial, that he did not
remember getting the gun out from under the hood of his car moments
before it was used to shoot Palazzotto. (Id. ¶ 4.)
Yet despite this rampant perjury, the government clings to the jury's
verdict like it is the only conviction it ever obtained, citing one main
reason: Maggiore and R. Alvarado did not fail a single-question polygraph
test in which they were asked only whether D'Angelo had been the shooter.
A polygraph, the sort of information which, if offered by a defendant in
defense or even in mitigation of a charge, quickly gets the back of the
government's hand,*fn16 now justifies, according to the government, the
denial of a new trial even in the face of blatant, critical perjury by
all of the key witnesses against D'Angelo.
At bottom, the government's position is that the prosecutors in the
case still believe D'Angelo is guilty, and therefore the verdict should
stand. While some comfort, I suppose, is supplied by the knowledge that
the prosecutors are not insisting on a life sentence for a person they
believe is innocent, the mere fact that they believe he is guilty is no
answer to the motions before me. One of those motions raises the question
whether letting the verdict stand would be a manifest injustice. The
other asks whether, given the recent revelation that all three of the
accomplice witnesses who implicated D'Angelo gave perjured testimony
about how the murder was conceived and carried out, a new trial is
A review of the government's theory, the evidence it adduced at trial
in support of that theory, the grievous credibility defects in its key
witnesses, and the newly discovered evidence that elevates those defects
to the highest level, mandate that the motion be granted on both grounds.
1. The Overarching Implausibility of the Government's Theory
of the Case
That D'Angelo would shoot Palazzotto as described by Maggiore and A.
Alvarado was implausible from the outset. THP members sold drugs and guns
and engaged in battles with rival gang members. D'Angelo did none of
that. Rather, he worked full-time and helped raise his two children.
D'Angelo's sole connection to THP until shortly before the homicide was
familial: His girlfriend's sister was A. Alvarado's girlfriend.
In approximately mid-May 1999, Deazevedo disrespected Rodriguez in the
presence of Velez and D'Angelo. D'Angelo tried to retaliate on the spot
but failed. His association with A. Alvarado thereupon changed. As even
the prosecutor said in her opening statement, "[t]he dispute that led to
the death of Thomas Palaz[z]otto started over a woman." (Tr. at 109.) In
the ensuing weeks, until the July 1, 1999 murder of Palazzotto, D'Angelo
associated with A. Alvarado and the other members of THP for a single,
undisputed purpose: to avenge the disrespecting of Rodriguez by causing
harm to Deazevedo. That was their "common goal." (Id. at 294;
see also id. at 363 ("common bond").) If on July 1,
1999, D'Angelo had assaulted Deazevedo, or even murdered him, the
government's case would have made sense.
Of course, many crimes make no sense, and there was no requirement that
the government prove that this one did. The critical problem with the
government's case was that it not only made no sense for D'Angelo to kill
Palazzotto, but it made all the sense in the world for
Maggiore and R. Alvarado to do so. As a general matter, this was
plain: Maggiore and R. Alvarado were gun-toting members of a violent drug
gang that routinely engaged in acts of violence against rival gang
members. D'Angelo was a working man with no gang involvement, no gun, and
no history of violence. Palazzotto was associated with a rival gang, and
shortly before the murder had driven LSB members to the Park Slope park
to shoot at THP members. Palazzotto was killed with Maggiore's gun and,
as we now know, on the direct order of A. Alvarado. He was killed for
challenging THP-precisely the reason Maggiore, who had been involved in
twenty-five assaults, two or three slashings, and two or three shootings
(id. at 384-86), had assaulted rival gang members in the past.
The risk that Maggiore or R. Alvarado (or both) had committed the
murder, and had pinned it on D'Angelo as their way out of trouble, was
patent from the beginning. It made sense of an otherwise senseless
murder. Indeed, demonstrating a talent for turning a weakness in
its case into a strength, the government argued in summation that
D'Angelo must have been trying to gain entrance into THP,
because otherwise the murder was inexplicable:
If you find the defendant has acted this way and
killed [Palazzotto], the only logical conclusion
is that he did it because he wants to be down with
this group, he wants to show them that he's tough.
What other inference is possible from someone who
kills so randomly, so wantonly, so senselessly?
(Id. at 788-89.) Those words are full of irony now, for
the government now admits that there was nothing random or senseless
about the murder of Palazzotto. The murder can no longer be explained
only by a desire on D'Angelo's part unexpressed by him and
unperceived by THP members to join the gang. Rather, the
government concedes now that A. Alvarado ordered the
murder in a telephone conversation with Maggiore-a fact that A.
Alvarado, R. Alvarado, and Maggiore all withheld in their concededly
perjurious testimony at trial.
The implausibility of the government's case was not limited to its
overarching theory. It surfaced in details that are almost too numerous
to mention. Viewed individually, they are all troublesome. Viewed as a
whole, they render the jury's verdict indefensible.
2. the beginning: a. alvarado and maggiore blame each other,
and Maggiore Cannot Decide on a Shooter
On July 12, 1999, eleven days after the murder of Palazzotto, A.
Alvarado told Detective Michael Hinrichs that Maggiore killed Palazzotto.
Maggiore admitted the murder to A. Alvarado in a phone call made within
approximately twelve hours of the murder. That version of events, A.
Alvarado's first, seemed logical at the time. Maggiore, a violent member
of THP, had ample reason both to shoot Palazzotto and to report it to
THP's leader. And now that version seems almost compelling; although it
did not come out at trial, we now know that A. Alvarado had in fact
directed Maggiore to commit the murder moments before it occurred.
A. Alvarado also told R. Alvarado that Maggiore had admitted being the
shooter. R. Alvarado a tentative young man who was only nineteen
years old when the murder occurred and very much under the control of his
older brother, who was twenty-four-had implicated Maggiore as the shooter
from the very beginning (id. at 605), based on his brother's
statement to him that Maggiore pulled the trigger (id. at 612).
This was odd, since R. Alvarado was present, but A. Alvarado supposedly
was not. However, as described more fully below, there were many oddities
in R. Alvarado's testimony.
For his part, Maggiore was implicating A. Alvarado in the murder.
Beginning immediately after the murder (July 1999), and again in March
2000 and December 2000, Maggiore told the police that A. Alvarado had
criminal responsibility for the murder in that he was the driver of the
car. Asked by the prosecutor at trial why Maggiore would think he was
responsible for the murder, A. Alvarado answered, falsely and
nonsensically, "I guess because he felt I've been incarcerated before and
I knew the system." (Id. at 375.) We know now that the true
answer to that question would have been, "Because I directed Maggiore to
So after the murder, A. Alvarado and Maggiore pointed the finger at
each other. A. Alvarado told the police and his brother that Maggiore was
the admitted shooter, and Maggiore told the police that A. Alvarado was
Although Maggiore was consistent for eighteen months in implicating A.
Alvarado as the driver of the car, he was all over the map on who did the
shooting. Before he made D'Angelo the shooter at trial, he gave numerous
other accounts of the shooting. He told Kevin Morrissey, a fellow inmate,
that R. Alvarado was the shooter. (Gov't Affirmation ¶ 8.) He told
another inmate, Americo Massa, that he shot Palazzotto first, and then
gave the gun to D'Angelo, who shot him again. (Id. ¶ 9.)
Maggiore told yet a third inmate, Jose Vanderlinder, that he killed
Palazzotto and then handed the gun to D'Angelo, but only to get his
prints on the weapon. (Id. ¶ 10.) He told inmate Jerry
Russell that R. Alvarado ought to be "grateful" for Maggiore's testimony,
leading Russell to believe that R. Alvarado was the shooter.
(Id. ¶ 12.) He said essentially the same thing to inmate
Leonard Owens. (Id. ¶ 13.) He told inmate Michael Ravelo
that he, R. Alvarado, and D'Angelo argued over who would shoot
Palazzotto. (Id. ¶ 14.) Finally, Maggiore told inmate
Jermel Franklin that he had killed Palazzotto. (Id. ¶ 16.)
another occasion, Maggiore told Franklin that D'Angelo was the
shooter, but then he started crying and said that that was false.
Maggiore denies having given all of these conflicting accounts of the
murder. (Id. ¶ 18.) He now insists to the government that
he never told anyone a version of the murder that differs from his
testimony at trial. (Id.) The government believes Maggiore is
lying about that, and that he indeed gave varying accounts of who the
shooter was. (Id.)
To summarize, the first stage of the investigation that resulted in the
indictment of D'Angelo established that (1) A. Alvarado said Maggiore was
the killer; (2) Maggiore said A. Alvarado was responsible for the murder;
and (3) depending on who he was talking to, Maggiore said that he was the
shooter, that R. Alvarado was the shooter, or that D'Angelo was the
3. The Government's Case Coalesces
Things change, however, and the THP members' versions of events all
happened to change in this case. A. Alvarado acted to change them. He was
well-qualified to do so. Specifically, A. Alvarado had a history of lying
under oath to dodge murder charges and influencing others to lie so that
he would not be convicted. (Tr. at 327 (perjury in 1993 trial), 337-38
(witness intimidation in 1997)). When asked by the prosecutor what he had
learned from those experiences, A. Alvarado testified, "To be a better
criminal." (Id. at 370).
Having honed his skills in earlier cases, A. Alvarado put them to work
in this one. From prison, he directed Kid Flick, a THP member, to
intimidate Maggiore. Flick told Maggiore that A. Alvarado would kill him
for implicating A. Alvarado in the Palazzotto murder. (Id. at
466, 473). It worked; after a year and a half of telling the police that
A. Alvarado was involved in the murder, Maggiore changed his tune.
According to the government's "5K1.1 letter" dated
April 17, 2003, after repeatedly telling the police that A.
Alvarado was guilty (see Gov't's 5K1.1 Letter at 3 ("On December 6,
2000, . . . Maggiore continued to claim that Al Alvarado was involved in
the homicide.")), Maggiore finally came clean and exonerated him on
January 1, 2001. The government now admits that the repeated statements
implicating A. Alvarado were the correct version, at least insofar as A.
Alvarado is guilty of ordering the murder, and that the exoneration
lauded by the government in the 5K1.1 letter was false.*fn17
Despite the successful intimidation, Maggiore was still cooperating
with the government, and A. Alvarado knew it. (Tr. at 351.) He also knew
that his younger brother, R. Alvarado, was in the car that night, and
thus, even if A. Alvarado was in the clear, R. Alvarado could be charged
based on Maggiore's cooperation.
Having dealt with Maggiore by threat, the evidence supports the
inference that A. Alvarado dealt with his brother by gentler means. The
prosecutors themselves facilitated it, by putting A. Alvarado, their
incarcerated cooperating witness, together with his brother on February
6, 2002. As elicited by the prosecutor on A. Alvarado's direct
examination, the purpose of the arranged meeting was for A. Alvarado "to
get him to cooperate with the government." (Id. at 317.) Given
A. Alvarado's sordid history of perjury and subornation of perjury, of
which the government was aware, one might expect it to choose a different
witness recruitment. We know now that the man who ordered the
Palazzotto murder, lied about that at trial, and continues to lie about
it now, was the government's agent to recruit R. Alvarado, who also lied
about it at trial. But even without 20/20 hindsight, using A. Alvarado to
get a participant in a homicide to cooperate with the government was a
singularly bad idea.
It worked for A. Alvarado and Maggiore. After meeting with his brother,
R. Alvarado cooperated with the government. It was a rocky road at first.
Timid and unintelligent, R. Alvarado committed perjury, as the government
readily admits, in his first attempt to plead guilty. (Id. at
575-76.) But he eventually succeeded, and when he did, he jettisoned the
Maggiore-as-shooter story and testified that D'Angelo was the
4. The Trial Testimony
An uninitiated observer might conclude that the government's case
became unraveled when it recently figured out that all of its key
witnesses were perjurers. But in truth the case was never raveled to
R. Alvarado and Maggiore, the government argues, had no opportunity to
collude,*fn19 so I should take comfort that their versions of the
homicide are true. (See Gov't's
Supplemental Mem. Opp'n Def.'s Mot. New Trial at 14-16 ("Gov't
Supplemental Mem.").) In fact, a long list of crucial, irreconcilable
conflicts in their testimony supports exactly the opposite conclusion:
The testimony leaves the impression that two perjurers made up facts
about a murder without having had a chance to get their stories straight.
Some of these conflicts are described below.
Maggiore's surprise at the shooting. According to R.
Alvarado, D'Angelo announced his intention to kill Palazzotto just after
asking for the gun. (Tr. at 567.) (This testimony was itself anomalous,
as the same witness testified that, moments earlier, D'Angelo asked to be
dropped off at home because Velez needed him. (Id. at 581.))
But despite this supposed announcement by D'Angelo, Maggiore was shocked
by the shooting. (Id. at 421 ("I panicked. This wasn't
planned."), 424-25 ("I didn't expect the defendant-anybody to get
shot. . . .").) We know now that the decision to kill Palazzotto was not
D'Angelo's, and that Maggiore's feigned surprise was just that. In fact,
when Maggiore saw Palazzotto, he telephoned A. Alvarado, who directed the
shooting. With that additional information, Maggiore's testimony is
especially ridiculous. But even on the evidence presented to the jury, R.
Alvarado's testimony that D'Angelo boldly announced an intention to
"smoke" Palazzotto cannot be reconciled with Maggiore's testimony.
The washing of hands after the murder. R. Alvarado testified
that he, Maggiore, and D'Angelo went to the Marcy Projects, where
Maggiore and D'Angelo washed gunpowder residue off their hands with
lemon, catsup, and bleach. (Id. at 569-70.) D'Angelo was
thereafter dropped off at home. (Id. at 570-71.) Maggiore's
version is very different. The handwashing occurred after
D'Angelo was dropped off, at "Woody's" on 39th Street, and involved A.
Alvarado, Maggiore, and another THP member cleansing their hands
(with only lemon). (Id. at 430.) Maggiore said R. Alvarado "of
course" was there (id), but R. Alvarado flatly denied it (id.
The murder weapon. Maggiore, who was as flamboyant as he was
unbelievable, painted a vivid picture about the gun that was used to kill
Palazzotto. When D'Angelo was dropped off at home, he said, "Nobody say
nothing, because [if] there's no weapon, there's no case," and then he
walked down the street with Velez to throw the gun into New York Harbor.
(Id. at 429.) But R. Alvarado testified that D'Angelo asked to
keep the gun not to get rid of it, but for self-defense, in case LSB
members came after him. (Id. at 571-72.)
How they learned Palazzotto was dead. On this critical
detail, a seemingly memorable event when one is involved in a shooting,
Maggiore testified that Velez told them Palazzotto was dead the moment
they dropped D'Angelo at home. (Id. at 428-29.) Maggiore was
characteristically dramatic: "[M]e and Rob were like, zow, damn. We
didn't know what to do, so then [D'Angelo] asked me for the gun."
(Id. at 429.) But R. Alvarado was not "like, zow, damn" at all.
He testified to different facts. Specifically, R. Alvarado said that he
and Maggiore did not learn that Palazzotto was dead until after
he and Maggiore left D'Angelo's home, when D'Angelo called them on
Maggiore's cell phone. (Id. at 571-72.)
The fundamental conflicts in the testimony were not limited to R.
Alvarado's differences with Maggiore. For example, just hours before the
murder, A. Alvarado, Maggiore, and D'Angelo saw Deazevedo on Court Street
in Brooklyn. They all got out of the car and chased him. According to A.
Alvarado, only he carried a gun, which he got from under the car seat.
(Id. at 303-04; see also id. at 369 ("I
grabbed the gun because I didn't want nobody else to
grab it.").) Maggiore, however, testified that the gun was in
D'Angelo's hand, and that Maggiore had gotten the gun from under the hood
of the car. (Id. at 409.)
A. Alvarado has repeatedly told the police that there was a fourth
person in the car when Palazzotto was murdered. First he said it was THP
member Vlad Garcia. (Id. at 334; see also
id. at 372.) Then he said it was THP member "Class."
(Id. at 334.) At times he refused to identify the fourth person
(or the third person, his brother R. Alvarado) to protect them.
(Id.) At trial, he appeared to settle on Class as the fourth
occupant of the car. (Id. at 372-73.) This testimony, that four
people were in the car, conflicted with the trial testimony of R.
Alvarado and Maggiore. However, it was not inconsistent with
Maggiore's story for the first eighteen months of the investigation: that
there was a fourth person in the car, and it was A. Alvarado.
Maggiore lied about A. Alvarado ordering the murder, has given
conflicting accounts of who the shooter was, and continues to lie about
both of the foregoing to the government; yet his credibility problems
extended much further. While under contract with the government not to
commit further crimes, he threatened to kill his girlfriend.
(Id. at 443, 455.) He also terrified her in a most insidious
fashion: by sending her the fruits of his legal research into the
mitigating effect, in a murder case, of the fact that the murder victim
was an adulterous woman. (Id. at 445, 456-57.) Maggiore falsely
told the police that D'Angelo held a gun to Maggiore's head and
threatened him (id. at 477); he falsely told the police that D'Angelo had
gotten out of the car and chased down Palazzotto (id.). There are
numerous other examples of conflicting and evolved testimony, but I will
not recite them all here.
R. Alvarado's testimony was rife with anomalies as well as perjury. He
testified that moments before the shootout in the Park Slope park on the
afternoon of the murder,
D'Angelo was "talking about the incident that just happened with my
sister-in-law and them and his wife," when D'Angelo "tried to cut one of
them." (Id. at 550.) But that incident had happened almost two
R. Alvarado also testified that shortly after the murder, D'Angelo told
his cousin that he had shot one of the "dudes that tried to come at
[D'Angelo] and [his] sister-in-law." (Id. at 570.) Again, R.
Alvarado was conflating the incident in May with the events surrounding
the murder, as Palazzotto had nothing to do with the incident involving
Rodriguez. In that same conversation, according to R. Alvarado, D'Angelo
admitted the shooting and said, "I think I shot this dude."
(Id.) Less than two weeks earlier, R. Alvarado told the
government that D'Angelo had told his cousin that he had shot and missed.
(Gov't Ex. 3500-RA-11 at 1.)
The government mostly ignores the numerous defects in R. Alvarado's
testimony. It does address R. Alvarado's testimony that, from the very
beginning, R. Alvarado had been telling the government that Maggiore was
the shooter. (See Tr. at 605.) The prosecutor claims that she
was surprised by this testimony, even though she elicited it. (See Letter
from Government to the Court dated Dec. 30, 2003 at 7 ("Dec. 30, 2003
Letter").) I credit that representation, as the surprise was obvious at
trial and is evident even from the transcript:
Q From the very beginning, who did you tell the
government killed the victim Thomas
A Reco [i.e., Maggiore].
Q Did you ever say anybody else was in the car
besides you, Maggiore-let me back up for one
When I say "the government," who did you first
tell the-the federal prosecutors killed
A Angelo [i.e., D'Angelo].
(Tr. at 605 (emphasis added).) The prosecutor further argues that
its witness must have been "mistaken" because there is no police report
memorializing any statement by R. Alvarado that Maggiore had been the
shooter. (Dec. 30, 2003 Letter at 7.) I do not credit that argument. R.
Alvarado testified repeatedly that he had identified Maggiore as the
shooter from the outset (see Tr. at 605, 612), and he even
stated why: because his brother had told him that Maggiore was the
shooter. (Id. at 612.) R. Alvarado did not give that damaging
testimony by mistake.
The government's implicit argument that it might credit R. Alvarado's
testimony if only it were included in a police report rings especially
hollow. As discussed in the next section, the government in this case
simply shrugs off police reports that undermine its effort to keep
D'Angelo in jail for life.
5. Elicitation of Perjury
Among the many disturbing aspects of the government's case, the most
troubling to me is how A. Alvarado's statement to Detective Hinrichs on
July 12, 1999 was handled at trial. A. Alvarado committed perjury on this
issue. In this case, that is in itself unfortunately unremarkable, as the
trial was rife with accomplice witness perjury and everyone now agrees
that A. Alvarado committed perjury about even more crucial facts. What
makes this instance of perjury so troubling is that the government was,
at the very least, negligent in eliciting it.
Eleven days after the murder, in a conversation with Detective
Hinrichs, A. Alvarado said he had spoken to Maggiore by telephone the day
after the shooting. A. Alvarado reported that Maggiore had said that he
had shot Palazzotto. Hinrichs filed a report of the conversation with A.
Alvarado. It stated, inter alia, that "Alvarado got a phone call from
[i.e., Maggiore] who told him that he shot a kid on Columbia St.
last night." (Gov't Ex. 3500-AA-10.)
If Hinrichs were asked today, he would say the same thing: that A.
Alvarado told him on July 12, 1999 that Maggiore admitted being the
shooter. (See Dec. 16, 2003 Hr'g Tr. at 43 ("Hr'g Tr.").)
Indeed, on March 25, 2003, just before trial, the government sent defense
counsel a Brady letter, telling counsel that on July 12, 1999,
Alvarado told Hinrichs, "in substance, that the day after July 1, 1999,
Alvarado got a phone call from `R[e]co' who told him that he shot a kid
on Columbia Street the previous night." (Letter from Government to Lloyd
Epstein dated Mar. 25, 2003, at 1-2.) The government's witness, R.
Alvarado, testified that A. Alvarado told him as well that Maggiore was
the shooter. (Tr. at 612.) The government has never challenged that
testimony. Finally, the prosecutor stated on the record that A. Alvarado
told Hinrichs on July 12, 1999, that Maggiore had admitted being the
shooter. (Hr'g Tr. at 19.)
In sum, the evidence that A. Alvarado told Detective Hinrichs on July
12, 1999, that Maggiore admitted being the shooter was overwhelming. It
was also quite harmful to the government's case. It was not elicited
during the direct examination of A. Alvarado.
On cross-examination, A. Alvarado denied making that statement when he
spoke to Hinrichs. (Id. at 329-31.) As for the telephone call
the day after the murder, A. Alvarado testified that he told Hinrichs
that "[Maggiore] told me that the kid got killed, but he did not tell me
that he killed him." (Id. at 331.)
The redirect examination changed A. Alvarado's testimony significantly.
The witness's version of his conversation with Hinrichs went from a
denial that he told Hinrichs that Maggiore admitted being the shooter to
telling Hinrichs that Maggiore said D'Angelo was the
shooter. The prosecutor's examination was as follows (note again
that "Reco" is Maggiore; "LA" is D'Angelo):
Q One more question, Mr. Alvarado.
Going back to the conversation that you had
with Reco on the phone after the murder of
Thomas Palaz[z]otto, what exactly did you tell
the police about what he had told you on the
phone? When you were interviewed on July 12,
A That he was shot and he told me-that he told me
he was shot.
Q What did Reco tell you about his involvement?
A That he was just the driver.
Q What did you tell the police about what Reco had
A I told them that Reco told me he shot him. Reco
told me he shot him.
Q When you say "he," who did you mean?
What did you mean by that?
A It came out of Reco's mouth that he was talking
about LA. He shot him.
[PROSECUTOR]: I have nothing further, Mr.
(Id. at 375-76.) That quickly, the simple statement,
"Reco told me he shot him," metamorphosed into, in essence, "Reco told me
D'Angelo shot him." This was perjury. On July 12, 1999, A. Alvarado told
Hinrichs that Maggiore had admitted being the murderer, and that he had
made that admission less than twenty-four hours after the murder. The
contrary testimony quoted above was false.
In response to my concern that perjury was deliberately elicited, the
prosecutors first say that they thought the last answer of the testimony
quoted above did not, in fact, relate to the July 12, 1999 interview by
Hinrichs. Rather, they claim, they thought it referred to what A.
Alvarado told the police on later occasions. (Dec. 30, 2003 Letter at
2-3.) Neither the cold record nor my recollection of the testimony lends
even the slightest support to any such belief. Such a belief, if held,
Second, in their December 30, 2003 letter, the prosecutors assert that,
in fact, A. Alvarado never told Hinrichs on July 12, 1999 (or ever, for
that matter) that Maggiore admitted being the shooter. That unbecoming
position is contradicted by Hinrichs, Hinrichs's unambiguous
contemporaneous report, R. Alvarado's testimony, and the Brady
letter. It is also flatly contradicted by the prosecutors
themselves, who stated exactly the opposite just fourteen days
earlier at the December 16, 2003 hearing:
THE COURT: You agree on July 12th, Albert
Alvarado said that Maggiore called
him that night and said Maggiore
killed Palaz[z]otto, right?
[PROSECUTOR]: We believe he reported that to the
police, your Honor.
(Hr'g Tr. at 19.) Now the prosecutors claim that their own
representation was "inaccurate." (Dec. 30, 2003 Letter at 2 n.2.)*fn20
6. Summary of Conceded Perjury at Trial
A useful approach to D'Angelo's new-trial motions is to focus only on
the perjury that the government itself concedes was committed at the
a. A. Alvarado committed perjury at trial. He
falsely denied having a role in the murder,
when in fact he ordered that the murder be
committed. (Gov't Affirmation ¶ 4.)
B.R. Alvarado committed perjury at trial. He
testified that the idea to murder Palazzotto
originated (inexplicably) with D'Angelo. In
fact, A. Alvarado ordered the murder. R.
Alvarado intentionally failed to reveal that
crucial fact in order to protect himself and
his brother. (Id ¶¶ 4, 22.)
c. Maggiore committed perjury at trial. He falsely
denied (by claiming a lack of recollection) that
he retrieved the murder weapon from under the
hood of his car moments before the weapon was
used to murder Palazzotto. Maggiore also falsely
testified that he was shocked when D'Angelo
supposedly shot Palazzotto because it was not
supposed to happen. This was perjury because
Maggiore knew that the murder was indeed
supposed to happen: A. Alvarado had ordered it
just minutes earlier, in a telephone
conversation with Maggiore himself.
d. After the trial, when Maggiore was confronted by
prosecutors with his statements to others that
(1) he had killed Palazzotto,*fn21 (2) R.
Alvarado had killed Palazzotto,*fn22 and (3)
he, R. Alvarado, and D'Angelo had argued over
who would shoot Palazzotto*fn23 (id
¶¶ 5-17), Maggiore lied to the prosecutors,
falsely telling them he had never told anyone a
different story about the shooting than the
version he gave at trial
(id. ¶ 18).
e. After trial, when confronted by the prosecutors
with the fact that A. Alvarado had ordered the
murder when Maggiore called him just before the
murder occurred, Maggiore lied to the
prosecutors again, falsely telling them that he
might have called A. Alvarado (Maggiore gave it
a "75% possibility"), but if he did, he did not
recall why or what was said.
(Id. ¶ 23.)
The government describes all of this perjury as "collateral" and "not
material," and the true facts only "cumulative" of the evidence at trial.
(Gov't Supplemental Mem. at 1-2; Hr'g Tr. at 17-18.) "[I]t does not
relate to the central issue of who shot Mr. Palaz[z]otto," the government
contends. (Hr'g Tr. at 17.) This argument is frivolous.
The leader of a gang testified for the government that he had nothing
to do with the shooting of a rival gang member. We now know that he
ordered the shooting. That is hardly "cumulative" evidence. Nor is it, as
the government asserts, a "not uncommon effort to minimize [his] own
culpability," (Gov't Supplemental Mem. at 36). A. Alvarado did not
testify to a slightly less aggravated role in the murder than he actually
played. He testified that he had no role in a murder that he
As for the impeachment value of the new evidence, the government
asserts that the fact that A. Alvarado lied about having ordered the
murder "obviously" has no "direct bearing" on whether A. Alvarado told
the truth about the murder at trial. (Hr'g Tr. at 17.) To state that
ridiculous argument is to defeat it, but I add the following observation:
Had the jurors known that A. Alvarado had lied to them in that he had
ordered Palazzotto's murder, they obviously would have greatly discounted
his testimony implicating D'Angelo, the one person involved who was not a
member of A. Alvarado's gang.
The decision to kill Palazzotto, based on the trial evidence, was
nothing short of an anomaly. One moment, D'Angelo wanted to go home, as
Velez had requested. The next moment, all of a sudden, he wanted to find
LSB members. Seconds later, he is supposedly clamoring for a gun and
announcing his intention to "smoke" a person he had no motive to harm.
The prosecutor's summation just glossed this oddity over. (See
Tr. at 742-43.) Now we know what really happened (or at least what the
government now believes really happened), and it makes much more sense.
After they happened upon Palazzotto, Maggiore called A. Alvarado and
asked what they should do. A. Alvarado said "give `em hell," in other
words, shoot him.
That fact obviously makes it far more likely that Maggiore or R.
Alvarado, i.e., one of A. Alvarado's minions, gave Palazzotto "hell."
The prosecutor argued to the jury that it should believe A. Alvarado,
R. Alvarado, and Maggiore "because they have every interest to tell the
truth. It is in their self-interest to come before you and tell you the
truth." (Id. at 749.) That, of course, could hardly be further
from the truth. Truthful testimony would have landed A. Alvarado in jail
for the rest of his life for the murder of Palazzotto, a crime with which
he was not even charged. Truthful testimony by R. Alvarado would do the
same to him (no matter who actually pulled the trigger); it would also
have required him to implicate the older brother who controlled him.
Truthful testimony by Maggiore would have jailed him for life as well; it
also would have required him to implicate A. Alvarado, who had already
successfully threatened to murder him if he did so. Had the jury known
those facts, the prosecutor's arguments would not likely have been
successful. Again in rebuttal summation, the prosecutor argued, referring
to A. Alvarado, R. Alvarado, and Maggiore, "The question is, what is in
their self-interest now?" (Id. at 792.) Based solely on the
facts the government now concedes, one very likely answer is, "To falsely
accuse D'Angelo of pulling the trigger."
The last thing the jury heard from the government-the climax of the
rebuttal summation-was the argument that once the government took THP
members off the street and placed them in jail, "they have to act for
themselves. They are not going to protect somebody else."
(Id. at 794 (emphasis added).) Now the government concedes that
R. Alvarado "falsely testified that he was not protecting anyone"; that
A. Alvarado falsely testified to protect himself, his brother, and
Maggiore; and that Maggiore falsely testified to protect himself, A.
and R. Alvarado. (Gov't Affirmation ¶ 4.) Having persuaded the
jury to convict with arguments that, in retrospect, are obliterated by
the conceded perjury of its own witnesses, the government's adamant
opposition to a new trial is unfair.
Based on the trial record and the newly discovered evidence, I have no
doubt that a manifest injustice occurred at trial. In light of all of the
contradictory evidence and perjury before me, I decline to join the
government in pronouncing, as though solemn certainty were even remotely
possible, the names of those who I believe are actually guilty of
murdering Palazzotto. I have a concern, to put it mildly, that D'Angelo
is innocent of the crimes for which he was convicted, but I am certain of
only this: Even putting aside the post-trial revelations of perjury, no
one could properly be found guilty based on the evidence at trial.
Finally, and as discussed in more detail below, the newly discovered
evidence of perjury is material, could not have been discovered by
D'Angelo with due diligence before or during trial, was anything but
cumulative, and would probably, if not certainly, have produced an
acquittal if it had been available at trial.
7. The Government's Arguments
I should deny the new-trial motions, the government contends, because
despite all their many blemishes as witnesses, R. Alvarado and Maggiore
passed a polygraph test. Moreover, Michael Ravelo, another THP member,
says that D'Angelo admitted to Ravelo that D'Angelo shot Palazzotto.
I address these arguments below, but at the outset it bears emphasis
that neither item of information on which the government now relies to
support the verdict was part of the trial record. In short, in attempting
to argue that, despite the perjury at trial, the jury would have
convicted D'Angelo anyway, the government fails to cite a single
piece of evidence that was actually before the jury.
[I]t is inconsistent with the applicable "but for"
standard for the government or the court to
evaluate a Rule 33 motion by replacing perjured
trial testimony with hypothetical testimony that
was not delivered to the jury. Such a practice
would also raise serious concerns under the
Confrontation Clause, U.S. Const., amend. VI.
. . .
United States v. Gallego, 191 F.3d 156
, 165 (2d Cir.
1999). In determining whether the evidence against D'Angelo renders the
newly discovered perjury immaterial, I "must focus on the inculpatory
evidence actually introduced at trial." Id. at 165 n.3. I "may
not speculate as to what additional matter the government might have
presented but did not, or might yet present in a future hypothetical
a. The Polygraph Results
FBI polygraph examiners asked R. Alvarado and Maggiore if D'Angelo shot
Palazzotto. Both answered "yes," and the polygraphers said there was "no
deception." The government asserts that this "is compelling
evidence" of D'Angelo's guilt. (Gov't Supplemental Mem. at 27
Polygraphs generally are neither evidence nor compelling, as the
government itself has argued often. For example: "There is a significant
percentage of false results on these examinations, and that is why they
are routinely precluded from admission as impeachment evidence in
criminal trials." Gov't's Mem. Law Supp. In Limine Mot. Preclude Certain
Cross Examination Gov't Witnesses at 11, United States v.
O'Kane (E.D.N.Y.) (No. 99 CR 536 (S-7))
("O'Kane Mem."). "`To this day, the scientific community
remains extremely polarized about the reliability of polygraph
techniques.'" Id. (quoting United States v. Scheffer,
523 U.S. 303, 309 (1998)). The government has often quoted United
States v. Ruggiero, 100 F.3d 284, 291 (2d Cir. 1996), for the
proposition that `"lie detector' tests are generally not admissible in
federal court because of their questionable accuracy." E.g.,
O'Kane Mem. at 10; Letter from Lauren Resnick & Daniel
Dorsky, Assistant U.S. Attorneys, E.D.N.Y., to the Hon. Sterling Johnson,
Judge, E.D.N.Y., dated June 5, 2000, at 2, United States v.
Buscemi (E.D.N.Y.) (No. 99 CR 536 (S-2)). The government also cites
Scheffer when arguing that "courts have an inherent interest in
excluding unreliable forms of evidence from consideration at trial."
Letter from Frank McClain-Sewer & Stuart M. Altman, Assistant U.S
Attorneys, E.D.N.Y., to the Hon. Sterling Johnson, Judge, E.D.N.Y., dated
June 4, 1998, at 3, United States v. Freeman (E.D.N.Y.) (No. 96
CR 527) ("Freeman Letter").*fn25
It is the government's policy to "oppose all attempts by defense
counsel to admit polygraph evidence." U.S. Dep't of Justice, United
States Attorney's Manual § 9-13.300 (1999). The Department of
Justice ("DOJ") even recommends that "[g]overnment attorneys . . .
refrain from seeking the admission of favorable examinations that may
have been conducted during the investigatory stage." Id. Though
the DOJ does "support the limited use of the polygraph during
investigations," "[g]iven the present theoretical and practical
deficiencies of polygraphs, the government takes the position that
polygraph results should not be introduced into evidence at trial."
Id. (emphasis added).
As for the specific polygraphs here, the government touts their
surgical precision; R. Alvarado and Maggiore were asked only one
yes-or-no question. As the government explains: "The polygraphs [given to
A. Alvarado, R. Alvarado, and Maggiore] were framed as narrowly as
possible in order to maximize their reliability and accuracy."
(Gov't's Supplemental Mem. at 13 (emphasis added).) But contrast that
argument with what it said in Freeman:
In this case, Rivera's answers to the polygraph
examination questions appear to contradict
portions of the testimony he is expected to
provide at trial. However, the reason for the
apparent contradiction is the artificial
constraints placed on Rivera's responses by the
polygraph examination. Rivera was instructed to
provide only "yes " or "no " answers in
response to highly specific questions and
was told to answer "no" to questions that were in
any way false. Such instructions virtually
compel incomplete or misleading answers.
Freeman Letter at 4 (emphasis added).
I am persuaded by the many arguments the government made elsewhere, not
the contrary one it elected to make here. Polygraphs are insufficiently
reliable even for use as impeachment, let alone as affirmative evidence.
The resort to them as justification for a conviction that the government
admits was obtained with perjured testimony is rejected.
b. D'Angelo's Statement to Ravelo
The other basis for denying a new trial, the government argues, is that
Michael Ravelo, an LSB member who was convicted in this very case, has
told the government that D'Angelo told Ravelo, in jail, that D'Angelo
shot Palazzotto in the back. I could scarcely rely upon Ravelo's supposed
future testimony to sustain D'Angelo's murder conviction. Apart from the
fact that it was not part of the record, or tested in any way, and
contains a factual inaccuracy about where Palazzotto was shot (he was
shot in the abdomen, not the back (Tr. at 629)), this
information comes from a person who "failed" in his effort to
cooperate. (Gov't Affirmation ¶ 14.) The government has not stated
why Ravelo failed to satisfy the screening criteria that even A.
Alvarado, R. Alvarado, and Maggiore presumably satisfied, but the fact of
his failure makes me especially reluctant to place any weight on the
c. The Mid-Trial Assault of A. Alvarado
The government has jettisoned on these motions an argument that was
prominent in its summation. It was based on an incident that occurred
during the trial.
On the day A. Alvarado testified, he and D'Angelo were mistakenly
placed together in a van that brought them from the jail to the
courthouse. D'Angelo asked A. Alvarado if he was testifying against him.
(Tr. at 321.) When A. Alvarado said yes, D'Angelo asked how A. Alvarado
could live with himself if he did that. (Id. at 347.) D'Angelo
further asked A. Alvarado how he could look his son (the cousin of
D'Angelo's children) in the face if A. Alvarado testified against
D'Angelo. (Id. at 322.) A. Alvarado responded that he would
look his son in the face while his son was playing with D'Angelo's
daughter.*fn26 (Id.) D'Angelo promptly assaulted him.
In summation, the prosecutor described this vignette and argued that it
was proof of D'Angelo's guilt: "And you should ask yourselves, [a]re
those the acts and words of an innocent man?" (Id. at 760.)
This argument has disappeared from the government's arsenal. The reason
is obvious: With the benefit of the newly discovered evidence, D'Angelo's
version of how the fight came about has the ring of truth. A. Alvarado,
who directed Maggiore to kill
Palazzotto, testified falsely so D'Angelo would do prison time
instead of him, and then taunted him by saying that he (A. Alvarado)
would watch their children play together. In hindsight, the answer to the
prosecutor's rhetorical question in summation has to be "yes."
8. Standards and Application
a. The "Interest of Justice" Standard
Federal Rule of Criminal Procedure 33(a) reads, in pertinent part:
"Upon the defendant's motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires." "Generally, a motion
for a new trial `should not be granted unless the trial court is
convinced that the jury has reached a seriously erroneous result or that
the verdict is a miscarriage of justice.'" Smith v. Carpenter,
316 F.3d 178, 183 (2d Cir. 2003) (quoting Atkins v. City of New
York. 143 F.3d 100, 102 (2d Cir. 1998)). I have "broad discretion
. . . to set aside a jury verdict and order a new trial to avert a
perceived miscarriage of justice." United States v. Ferguson,
246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v.
Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). Though I am entitled
to "weigh the evidence and in so doing evaluate for [my]self the
credibility of the witnesses," Sanchez, 969 F.2d at 1413
(quotation marks omitted), I "must strike a balance between weighing the
evidence and credibility of witnesses and not `wholly usurping' the role
of the jury," Ferguson, 246 F.3d at 133 (quoting 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, "it is only
where exceptional circumstances can be
demonstrated that the trial judge may intrude upon
the jury function of credibility assessment." 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. The trial court must be satisfied that
"competent, satisfactory and sufficient evidence"
in the record supports the jury verdict. The
district court must examine the entire case, take
into account all facts and circumstances, and make
an objective evaluation. "There must be a real
concern that an innocent person may have been
convicted." 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
Id. at 133-34 (citations omitted) (quoting
Sanchez, 969 F.2d at 1414); see also id. at
139 (Walker, C.J., concurring in part and dissenting in part) ("Like many
legal metaphors, the `thirteenth juror' analogy lacks precision. It fails
to convey the considerable circumspection that this court has required of
district courts' decisions on Rule 33 motions based on the weight of the
Even where, as in this case, the government agrees that perjury has
clearly been committed, I may not grant a new trial unless the jury
"probably would have acquitted in the absence of the false testimony."
Sanchez, 969 F.2d at 1413-14.
Manifest injustice cannot be found simply on the
basis of the trial judge's determination that
certain testimony is untruthful, unless the judge
is prepared to answer "no" to the following
question: "Am I satisfied that competent,
satisfactory and sufficient evidence in this
record supports the jury's finding that this
defendant is guilty beyond a reasonable doubt?"
Id. at 1414; see also Diaz, 176 F.3d
at 92 ("`[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.'"
(quoting United States v. Gordon, 987 F.2d 902
, 906 (2d Cir.
1990))). In answering this question, I must examine the "totality of the
case," including an "objective" evaluation of "[a]ll the facts and
circumstances." Sanchez, 969 F.2d at 1414.
Here, I am anything but "satisfied that competent, satisfactory and
sufficient evidence in this record supports the jury's finding that this
defendant is guilty beyond a reasonable doubt," id. The
conceded perjury on the part of A. Alvarado, R. Alvarado, and Maggiore on
crucial facts was only a small subset of the incredible testimony by
those key witnesses. As set forth above, the testimony of Maggiore and R.
Alvarado was riddled with anomalies. Though cases construing
Rule 33 allow me to weigh the evidence, see United States v.
Ferguson, 246 F.3d 129, 133 (2d Cir. 2001); Sanchez, 969
F.2d at 1413, 1 need not do so to conclude that a manifest injustice
occurred here, in light of the results of the government's post-trial
investigation. While I would grant D'Angelo's motion for a new trial in
the interest of justice even without the revelations of perjury, as the
testimony of the accomplice witnesses was "patently incredible,"
Ferguson, 246 F.3d at 134 (quotation marks omitted), my task is
to examine "the entire case, take into account all facts and
circumstances, and make an objective evaluation," id.
Therefore, in light of the patently incredible testimony of accomplice
witnesses at trial, including material perjury on crucial facts, as
revealed by the government's post-trial investigation, I am left with a
very "`real concern that an innocent person may have been convicted,'"
id. (quoting Sanchez. 969 F.2d at 1414), as there is
no "`competent, satisfactory and sufficient evidence' in the record [to]
support the jury verdict," id. (quoting Sanchez,
969 F.2d at 1414). Accordingly, I grant D'Angelo's motion for a new trial
in the interest of justice.
b. The Newly Discovered Evidence Standard
Federal Rule of Criminal Procedure 33 also contemplates a new trial
based on newly discovered evidence. While a motion for a new trial on the
ground of newly discovered evidence is committed to my sound discretion,
United States v. Diaz, 922 F.2d 998, 1006 (2d Cir. 1990), it
"`is not favored and a district court must exercise great
caution . . . and may grant the motion only in the most extraordinary
circumstances,'" United States v. Petrillo,
237 F.3d 119, 123 (2d Cir. 2000) (ellipsis in original) (quoting United
States v. Diaz, 176 F.3d 52, 106 (2d Cir. 1999)). In United
States v. White, the Second Circuit discussed four established
principles for determining whether a new trial should be granted based on
newly discovered evidence:
First, the motion will not be granted
unless the "newly discovered evidence" could not
with due diligence have been discovered before or
during trial. . . .
Second, when the newly discovered
evidence focuses on the perjury of a witness, a
threshold inquiry is whether the evidence
demonstrates that the witness in fact committed
perjury. . . .
Third, the newly discovered evidence
must be material. The credibility of a witness who
testifies as to substantive facts is critical in
the trial of a case. To this extent, it cannot be
said that evidence that would show the witness to
be lying is immaterial. . . . The importance of
such evidence is, of course, lessened when the
perjury involves some collateral matter concerning
the witness, rather than testimony about facts
relevant to the merits of the case. . . .
Fourth, consideration must also be
given to whether the newly discovered evidence is
cumulative, that is simply additional evidence to
that which was presented at trial as to a fact, or
unique evidence that tends to prove a fact at
972 F.2d 16
, 20-21 (2d Cir. 1992) (citations omitted):
see also Petrillo, 237 F.3d at 123 ("`Such
relief should be granted only if the evidence is material to the verdict,
could not with due diligence have been discovered before or during trial
and is not cumulative.'" (quoting United States v. Sasso,
59 F.3d 341, 350 (2d Cir. 1995))): see also Diaz, 922
F.2d at 1006 ("Such relief
is merited only if, inter alia, the evidence is such that
it would probably lead to an acquittal and would create a reasonable
doubt that did not otherwise exist." (quotation marks and citations
However, where new evidence comes to light that establishes perjury by
government witnesses, "a more favorable standard might apply `depending
on the materiality of the perjury to the jury's verdict and the extent to
which the prosecution was aware of the perjury.'" United States v.
Gallego, 191 F.3d 156, 161-62 (2d Cir. 1999) (quoting United
States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991)). The extent to
which the standard is more favorable to a defendant depends in large part
on the level of the government's awareness of the perjury:
[W]here the government knew or should have known
about the perjury, the conviction must be set
aside if there is any reasonable likelihood that
the false testimony could have affected the
judgment of the jury. Reversal is virtually
automatic in these cases. On the other hand, where
the government was unaware of a witness'
perjury . . . a new trial is warranted only if the
testimony was material and the court [is left]
with a firm belief that but for the perjured
testimony, the defendant would most likely not
have been convicted.
Id. at 163 (ellipsis and alteration in original)
(quotation marks and citations omitted).
I am left with the strong belief that but for A. Alvarado's, R.
Alvarado's, and Maggiore's perjured testimony, D'Angelo would most likely
not have been convicted. Addressing the factors set forth in
White, the evidence of the accomplice witnesses' perjury could
not have been discovered by D'Angelo with due diligence prior to trial.
Second, it clearly demonstrates that the accomplice witnesses committed
perjury at trial. Third, the evidence is highly material. Not only does
the evidence show that these witnesses were lying, but it
fundamentally changes the theory of the government's case: Rather
than a rogue, spur-of-the-moment shooting by D'Angelo, this was a
calculated attack ordered by the leader of THP. Finally, it is unique
evidence that proves the witnesses' motives to lie, and raises great
doubt as to the true murderer of Palazzotto. Though I do not come to the
conclusion lightly, based on the overwhelming new evidence of perjury
that the government's post-trial investigation has exposed, I find this
case to be one of those extraordinary circumstances in which a new trial
For the foregoing reasons, D'Angelo's motion for a judgment of
acquittal pursuant to Rule 29 is granted. In the alternative, in the
event of a successful appeal of my determination of the Rule 29 motion,
D'Angelo's motion for a new trial pursuant to Rule 33 is granted. The
parties shall appear on February 26, 2004, at 10:00 a.m. to address the
question of bail pending the government's appeal.