United States v. DeMartino

154 F. App'x 220

• Court: Court of Appeals for the Second Circuit
• Decided: November 2, 2005
• Docket: No. 05-0977-CR
• Status: Published

Opinion

Vincent DeMartino appeals from his conviction for assault and conspiracy in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(8) and (5). DeMartino argues that the evidence at trial was insufficient to show that he committed these crimes “for the purpose of gaining entrance to or maintaining or increasing [his] position in” a racketeering enterprise, as required by § 1959(a). We assume the parties’ familiarity with the facts in the case, its relevant procedural history, and the issue on appeal.

DeMartino claims that he was motivated by his desire for revenge against the victim, who he believed to have had an affair with DeMartino’s wife. But the government also introduced evidence that the killing could not have been performed without authorization from family leadership, testimony that Jackie DeRoss, a senior member of the organization and De-Martino’s direct superior, was angry at the victim, and evidence that DeMartino was in communication with this superior around the time of the shooting. From this the jury could reasonably have inferred that DeMartino had both a “position-related motivation” and a non-position-related motivation for the shooting. See United States v. Pimentel, 346 F.3d 285, 295-96 (2d Cir.2003) (noting that to prove “position-related motive” under § 1959, the government need not prove that maintaining or increasing a defendant’s position in a RICO enterprise was the defendant’s sole or principal motive.)

For the foregoing reasons, the judgment of the district court is AFFIRMED.