The opinion of the court was delivered by: Glasser, United States Senior District Judge
On February 4, 2008, the jury found the defendant James McTier guilty of thirteen of the fourteen counts alleged against him in the superseding indictment in this case.*fn1 Mr. McTier was convicted of racketeering and racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO"), 18 U.S.C. § 1962(c) & (d) (Counts One and Two), and the murder in aid of racketeering of an individual named Ricky Tubens, in violation of 18 U.S.C. § 1959(a) and N.Y. Penal L. § 125.25(1), ten other counts stemming from his gang-related criminal activity. Currently pending before the Court is Mr. McTier's motion, pursuant to Federal Rule of Criminal Procedure 33(a) ("Rule 33"), to vacate his conviction for Count Ten or, in the alternative, to preclude the government from proceeding with Count Ten as a capital count in the penalty phase of Mr. McTier's trial, on the basis of the jury's inconsistent verdict which found Mr. McTier guilty of Count Ten, but found that Racketeering Act Six under Counts One and Two, which involved the same murder in violation of the same section of the New York Penal Law, was not proven against him. For the reasons stated below, Mr. McTier's motion is denied.
James McTier is one of three defendants named in the superseding indictment in this case, which alleges various criminal activity, including robbery, murder, and drug dealing, undertaken by the defendants in connection with their membership in or association with the Folk Nation gang operating in the Brownsville area of Brooklyn, New York. Mr. McTier was charged with, inter alia, racketeering and racketeering conspiracy in violation of RICO and several counts of murder in aid of racketeering, including one count, Count Ten, which involved the murder of Ricky Tubens. The Tubens murder was also alleged as Racketeering Act Six for both of the RICO counts. The portion of the superseding indictment alleging Racketeering Act Six stated:
On or about September 22, 2000, within the Eastern District of New York, the defendant JAMES MCTIER, with intent to cause the death of Ricky Tubens, caused his death, in violation of Section 125.25(1) of the New York Penal Law.
Sup. Ind. ¶ 15 (Count One); see also id. ¶ 32 (incorporating all thirteen racketeering acts alleged in Count One into Count Two). Count Ten of the superseding indictment alleged the same murder as an independent offense, stating as follows:
On or about September 22, 2000, within the Eastern District of New York, the defendant JAMES MCTIER, also known as "JD," for the purpose of maintaining and increasing position in the Folk Nation, an enterprise engaged in racketeering activity, did knowingly and intentionally murder Ricky Tubens, in violation of Section 125.25(1) of the New York Penal Law. (Title 18, United States Code, Sections 1959(a)(1) and 3551 et seq.)
On January 7, 2008, trial commenced before this court for Mr. McTier and his two co-defendants, Dwayne Stone and Sharief Russell. After approximately three weeks of trial and several days of deliberations, the jury returned a verdict on Monday, February 4, 2008. The jury convicted Mr. McTier on Counts One, Two, and Ten, as well as all but one of the other counts alleged against him; however, the jury concluded that Racketeering Act Six was not proven against McTier under Count One or Count Two, but convicted him of those counts on the basis of the other racketeering acts that it found to be proved beyond a reasonable doubt. Because the government had filed a notice of intent to seek the death penalty against Mr. McTier in the event of his conviction,*fn2 the Court scheduled the penalty phase to commence on February 12, 2008.
On February 6, 2008, Mr. McTier filed the pending Rule 33 motion, seeking to vacate his conviction or preclude the government from asserting Count Ten as a capital count during the penalty phase. Mr. McTier's motion is premised upon the fact that the jury's verdict of guilty on Count Ten is patently inconsistent with its determination that Racketeering Act Six was not proven, a fact to which this Court drew the parties' attention immediately after the verdict was announced. While conceding the government's point that the presence of an inconsistent verdict does not entitle a criminal defendant to vacatur of a conviction as a matter of law, he nevertheless urges this court "in the interests of justice" to exercise its discretion under to Rule 33 to vacate the conviction, arguing, inter alia, that this departure from the usual legal rule is justified by the fact that the stakes are qualitatively different in a death penalty case than in the usual criminal cases in which the law regarding inconsistent verdicts has developed. Memorandum of Law in Support of James McTier's Rule 33 Motion ("McTier Mem."), filed February 6, 2008 (docket no. 315), at 3. Mr. McTier also argues that his motion should be granted because, since the jury's verdict finding Racketeering Act Six not proven as to the two RICO counts did not preclude Mr. McTier's conviction for racketeering and racketeering conspiracy, one common justification for refusing to vacate an inconsistent verdict-- that the inconsistency may be the product of the jury's decision to grant leniency to a defendant by nullifying a charge of which he should logically have been convicted-- cannot be present in this case.
Rule 33(a) states in relevant part that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." The Second Circuit has recognized that "Rule 33 confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice," United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992), but has cautioned that the district court "must exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1414). The circumstances presented by this case are not sufficiently extraordinary to warrant the relief that Mr. McTier seeks.
1. Inconsistent Verdicts Do Not Require Vacatur
Mr. McTier acknowledges that the general rule of law applicable to this situation holds that an inconsistent verdict does not require vacatur of the defendant's conviction, notwithstanding the fact that that conviction cannot logically be reconciled with the jury's verdict on another count. This rule has deep roots in the history of American jurisprudence, going back at least as far as Judge Learned Hand's decision in Steckler v. United States, 7 F.2d 59 (1925), in which the Second Circuit affirmed the defendant's conviction for unlawful possession of liquor despite the fact that the jury acquitted him on two counts of illegal sales of liquor and one count of maintaining a public nuisance. The court acknowledged that the verdicts were inconsistent, because the defendant could not be guilty of unlawful possession unless it were proved that he intended to illegally sell the liquor in his possession,*fn3 but affirmed the conviction on the basis of its observation that [t]he most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.
We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which ...