Opinion
No. 03 Cr. 501 (GEL).
September 21, 2005
OPINION AND ORDER
On July 5, 2005, following a four-week trial, a jury found defendants Christian del Rosario and Gallipote Rivera guilty of two counts of murder in furtherance of a racketeering enterprise, and guilty of a related count of using a firearm in relation to a drug trafficking crime. Defendants have now filed post-trial motions: Rivera seeks a judgment of acquittal notwithstanding the verdict, del Rosario seeks dismissal of the indictment, and both seek in the alternative a new trial. As defendants' contentions are completely meritless, the motions will be denied.
I. Rivera's Motions
Rivera moves for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c). Such a motion may only be granted if no rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Rivera makes no argument in favor of his motion, and points to no failure of proof as to any specific element of any of the charges on which he was convicted. Nor is there any conceivable basis for the motion. Putting aside all other evidence in the case, the testimony of Ray Rivera alone is in itself sufficient to permit a reasonable jury to convict defendant Gallipote Rivera of all three counts. Ray Rivera testified that he was present when the defendant Rivera murdered the victims, Agramonte and Palmero, with a firearm, in fulfillment of an express contract with del Rosario to murder them in exchange for a cash payment, in order to protect del Rosario from a violent takeover of his drug enterprise by the murder victims. Although accomplice testimony need not be corroborated to support a conviction under federal law, see United States v. Philips, 426 F.2d 1069, 1071 (2d Cir. 1970), this testimony was amply corroborated by other evidence. The evidence in support of conviction was overwhelming if the Government's witnesses were believed, and their credibility was solely a question for the jury.
Alternatively, Rivera seeks a new trial, claiming that he was prejudiced because the Court instructed the jury that it could not convict defendant del Rosario unless it first found beyond a reasonable doubt that Rivera had committed the charged crimes. This argument is meritless. First, Rivera never objected to the language he now claims was prejudicial. The instruction was proposed by counsel for del Rosario, and Rivera's attorney was silent when the Court indicated that it would adopt del Rosario's suggestion. (Tr. 1737-39.) Moreover, Rivera's attorney did not object when the instruction was actually given (id. 2070), nor at the end of the jury charge (id. 2084-85).
The Court charged "[N]o one can be convicted of aiding and abetting the criminal acts of another if no crime was committed by the other person in the first place. In this case[,] the government contends that Christian del Rosario aided and abetted in the crime of murder by procuring, that is to say, by hiring, Gallipote Rivera to commit the crimes. Therefore, unless you find beyond a reasonable doubt that Gallipote Rivera committed one or both of the murders charged, you cannot find Christian Del Rosario guilty of murder. But if you do find that a crime was committed, then you must consider whether Mr. Del Rosario aided and abetted the commission of that crime." (Tr. 2070.)
Second, the instruction accurately stated the law. The Government's theory of the case, which was amply supported by the evidence, was that Rivera personally committed the charged murders by killing the victims with a firearm, and that del Rosario was guilty as an accomplice, because he solicited the murders. It is black-letter law that a defendant can only be convicted as an aider and abettor if the crime was actually committed by the principal. United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003); United States v. Yousef, 327 F.3d 56, 160 (2d Cir. 2003). Del Rosario was only charged as an accomplice of Rivera. If there was a reasonable doubt about whether Rivera committed the charged crimes, then del Rosario could not be found guilty as his accomplice. On the evidence presented at the trial, no rational jury could have found beyond a reasonable doubt that del Rosario was guilty as an accomplice to anyone other than Gallipote Rivera.
Rivera's suggestion that he was prejudiced by this instruction because a juror who wished to convict del Rosario would feel obliged to find Rivera guilty as well, even if he or she was not convinced beyond a reasonable doubt of Rivera's guilt, is fanciful. First, the critical testimony against both defendants came from the same witnesses. No rational juror could have had any basis for deciding to convict del Rosario unless he accepted the Government's proof about how and why the murder had been committed — proof that equally incriminated Rivera. Second, the Court repeatedly instructed the jury that "guilt is individual," and that its verdict "must be determined separately with respect to each defendant, solely on the evidence or lack of evidence presented against him, without regard to the guilt or innocence of anyone else." (Tr. 2044.)
Finally, Rivera's claim that the need for this instruction demonstrates that he was prejudiced by being tried jointly with del Rosario is meritless. On Rivera's theory, separate trials would be required in all trials of any principal and accomplice, to forestall the possibility that an irrational juror, determined to convict the alleged accomplice, would also vote to convict the principal despite being unconvinced of the latter's guilt.
In any event, Rivera never moved for a severance on this ground. His severance motion was based on an entirely different theory. (5/17/05 Tr. 17-23.) The Court tentatively denied the motion, but expressly invited Rivera to renew it depending on events at trial. (Id. 21-23; see also Tr. 4-9.) Rivera never did.
II. Del Rosario's Motion
Del Rosario seeks dismissal of the indictment, or in the alternative a new trial, alleging Government misconduct. He claims that the trial was tainted because the prosecutors had access to recordings of attorney-client communications between him and his attorney, and may have exploited that access, either consciously or inadvertently through the actions of a police detective who listened to the recordings, to discover and thwart defense strategy.
Although the Government did come into possession of such recordings, there is no evidentiary basis for del Rosario's contention that the trial was affected by this lapse. It is undisputed that during the course of the trial, the Government subpoenaed from the Bureau of Prisons recordings of del Rosario's prison phone calls. According to the prosecutors, they sought the recordings in order to determine whether del Rosario's conversations with his sister, who had been listed as a potential alibi witness, would provide a basis for cross-examination. The disks provided by the prison authorities in fact contained, among other calls, conversations between del Rosario and his attorney. According to an affirmation from one of the trial prosecutors, neither prosecutor listened to any of the conversations. (Affirmation of Christopher Garcia, dated Aug. 26, 2005, ¶ 4.) Rather, they instructed the case agent, Detective Robert Del Rio, to review the calls made to telephone numbers associated with del Rosario's sister. (Id.) Detective Del Rio swears that he followed that instruction, reviewing only the conversations associated with those numbers, almost all of which, he avers, were in Spanish. (Affirmation of Robert Del Rio, dated Aug. 31, 2005, ¶¶ 4-5.) It is undisputed that del Rosario and his attorney conversed in English, and it is not claimed that defense counsel utilized either of the telephone numbers associated with del Rosario's sister. Further, the prosecutors affirm that they were never even aware that conversations with counsel were on the disks obtained from the prison authorities until advised of it by defense counsel after the trial in connection with the instant motion. (Garcia Aff. ¶ 4.)
On this record, there is no basis for a finding of prosecutorial misconduct, nor for requiring any further hearing or inquiry into the matter. The prosecutors and the case agent have denied under penalty of perjury having overheard any attorney-client conversations whatsoever. Del Rosario points to nothing that occurred at trial that provides any basis for an inference that the prosecutors had or exploited access to defense strategies. A defendant's Sixth Amendment rights are not violated "unless [the Government gained access to] the substance of the [attorney-client] conversations and thereby created at least a realistic possibility of injury to [defendant] or benefit to the State." Weatherford v. Bursey, 429 U.S. 545, 558 (1977). Del Rosario has failed to demonstrate any such "realistic possibility" of injury to himself or unfair advantage to the Government. Nor has he provided any evidence or argument casting sufficient doubt on the sworn denials that any member of the prosecution team listened to any of the attorney-client recordings to justify an evidentiary hearing or further discovery on the issue. Accordingly, del Rosario's motion is denied.
CONCLUSION
For the reasons stated above, Rivera's motion for judgment of acquittal, or in the alternative for a new trial, and del Rosario's motion for dismissal of the indictment, or in the alternative for a new trial are denied.SO ORDERED.