United States v. Calderon

785 F.3d 847, 2015 WL 2190998
CourtCourt of Appeals for the Second Circuit
DecidedMay 12, 2015
DocketDocket Nos. 13-1098, 13-0766, 13-2510, 13-2740, 13-2751
StatusPublished

This text of 785 F.3d 847 (United States v. Calderon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Calderon, 785 F.3d 847, 2015 WL 2190998 (2d Cir. 2015).

Opinion

WESLEY, Circuit Judge:

Defendants-Appellants Nelson Calderon, Wilfredo Sanchez, Eva Cardoza, and Angelo DeLeon appeal from judgments of the district court, following a jury trial, convicting them of racketeering, narcotics, and obstruction-of-justice offenses. The appellants were charged along with thirty other alleged members and associates of a violent street gang. Following a five-week trial, the jury returned a verdict finding each appellant guilty on at least one count.

On appeal, appellants raise a host of legal challenges to their convictions. All save one are disposed of by a summary order issued simultaneously with this opinion. We write here only with regard to Appellant Cardoza’s conviction for accessory after the fact to murder, in violation of 18 U.S.C. § 3. This opinion addresses her argument that the evidence at trial was insufficient to establish that she was an accessory after the fact to a murder. We hold that the trial evidence was not sufficient for a reasonable jury to find Cardoza guilty of that charge.

BACKGROUND

Appellants were members and associates of a nationwide criminal organization known as the “Almighty Latin King Queen Nation” or simply the “Latin Kings.” The Latin Kings operated drug markets — selling crack cocaine, powder cocaine, heroin, and marijuana — at gang-controlled locations in Newburgh, New York.

Cardoza lived with her young daughter and her boyfriend, Latin Kings member Steven Lewis (known as “Scoobz” or “Scooby”), in an apartment where she and Lewis stored drugs for the Latin Kings. Although she was not officially a member of the Latin Kings, Cardoza went on missions with gang members, collected money from drug sales, advised drug customers of [849]*849Lewis’s location, and sold drugs and made drug deliveries for the gang. Cardoza regularly drove Lewis to the homes of drug customers to help him make deliveries in her green Ford Explorer. Several times, narcotics customers gave cash for drugs directly to Cardoza.

This opinion deals with Cardoza’s challenge to her accessory-after-the-fact conviction for helping a Latin Kings member escape after he shot and killed an aspiring member of the gang, John Maldonado (known as “Tarzan”), in retaliation for what the gang had determined was an earlier betrayal.

Maldonado and several Latin Kings members had been involved in a shooting on a block “controlled by the Bloods,” a rival gang, in order to “show[ ] face.” Trial Tr. 1482-88; 2684. A member of the Bloods shot at Maldonado’s group from across the street; they, returned fire. Police intervention halted the violence before anyone was injured.

The next day, the Latin Kings leadership planned to retaliate against the Bloods. Maldonado and a fully initiated Latin Kings member, Carlos. Romero (known as “Los”), were directed to locate and kill some Bloods members. Lewis was assigned the task of helping Maldonado and Romero flee the scene. Cardoza drove Lewis and fellow Latin Kings member Luis Tambito (known as “Luch”) to an intersection in Newburgh where they waited to pick up the shooters. Ultimately Lewis and Tambito were instructed by Latin Kings superiors to abandon the mission because there were no Bloods members in the area to target.

The next day, the Latin Kings again attempted to retaliate against the Bloods. This time, they sent Maldonado and another aspiring gang member, Jerome Scarlett (known as “Rudeboy”). The Latin Kings equipped both Scarlett and Maldonado with firearms. The attack on the Bloods went poorly and Scarlett was shot and killed.

Latin Kings had heard rumors that Maldonado was “infiltrating” their gang and that “he was working with the Bloods and that’s why he had Rudeboy shot.” Trial Tr. 1542. As a result, they suspected that Maldonado had killed Scarlett. The Latin Kings decided to retaliate by shooting Maldonado “in the middle of the street.” Trial Tr. 1542. They chose gang member William Overton (known as “Tutu”) for the task and. provided him with a firearm for that purpose. Romero was instructed to walk Maldonado down a street under the pretense of preparing for another mission “to get back at the Bloods because [of] what happened with Rudeboy.” Trial Tr. 2713. Overton was to lie in wait along the path and shoot Maldonado as he went by.

Cardoza was aware of Maldonado’s suspected involvement in Scarlett’s death. Romero testified that he rode with Lewis and Cardoza in the Explorer after Scarlett’s death and discussed how Maldonado had “shot at Rudeboy by accident.” Trial Tr. 2705. Thereafter, as part of the plan to eliminate Maldonado, Overton was told to look for “a green SUV” and that Cardoza would be driving. Trial Tr. 2907.

On the day of the murder, Overton hid behind bushes beside the street, wearing gloves, a mask, and a hoodie, and waited for Maldonado. When his victim walked by, Overton jumped out from his hiding place and shot Maldonado three times, mortally wounding him.1 Tambito, who was in close proximity to both Cardoza’s vehicle, which was parked down the street, [850]*850and the scene of the murder, testified that he heard the three shots.

After shooting Maldonado, Overton ran past Cardoza and Lewis waiting in the Explorer and on through a graveyard. Romero, who had run across the street after the shooting, testified that as Cardoza’s vehicle approached Overton, he heard a female voice and saw a “hand come out from the — from the driving side start saying come on, come on” waving with-her left arm toward the inside of the car. Trial Tr. 2722-23. Tambito yelled to Cardoza to “[g]o get him” — meaning Overton — and Cardoza drove her vehicle in pursuit. Trial Tr. 1581. When Overton heard sirens, he discarded his gloves, mask, and hoodie, and stashed his weapon “on somebody’s porch” beneath a piece of furniture. Trial Tr. 2915-16.

Overton then met up with Cardoza and Lewis in the getaway SUV. Overton testified that once he was in the vehicle he had a conversation with Lewis and Cardoza:

[Overton]: Yeah. I was asked if I had the gun. I told Seoobz [Lewis] that I did -not have the gun. And like he just told me that — that someone -would be getting in touch with me so we could— like I could show them where the gloves were, where the jacket was, where the gun was, and whoever would be doing it would be disposing of all of it.
[Assistant United States Attorney Benjamin Allee]: All right. And what further discussion, if any, did you have as you drove away from the block?
[Overton]: They had told me that someone would come and pick me up and that someone would be in touch. That way, they would come back to wherever I was, come and get me, and we would dispose of — like I would show them where the gun, the gloves, the mask and the sweatshirt were so they can get rid of it.

Trial Tr. 2921. Cardoza drove Overton to his home in Montgomery, New York.

DISCUSSION

Cardoza argues that a rational jury could not convict her of being an accessory after the fact to a homicide committed in violation of 18 U.S.C. § 1959(a)(1), ie., the Maldonado murder, because there was insufficient evidence that she had knowledge “that the decedent was dead or dying at the time of [her] decision to provide assistance.” Cardoza Br.

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Cite This Page — Counsel Stack

Bluebook (online)
785 F.3d 847, 2015 WL 2190998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-calderon-ca2-2015.