Gang shooting defendant wins appeal

Upstate New York can be quite beautiful, but the City of Newburgh is no romp in the park. The case highlights the dangerous streets of the City and also articulates a new standard for the crime of accessory to murder after-the-fact.

The case is United States v. Calderon, decided on May 12. This was a multi-defendant criminal trial in White Plains involving gang activity. The jury convicted various gang members for racketeering, narcotics, and obstruction‐of‐justice offenses. Everyone loses their appeal except for Cardona, who as getaway driver was convicted as an after-the-fact accessory. That conviction is reversed.

The Second Circuit (Wesley, Kearse and Chin) surveys the landscape in arriving at the following legal standard: "the Government must prove that the defendant knew or must have known that the victim was dead or dying at the time she decided to act as an accessory after the fact to murder."

Under this test, adopted from the Fourth Circuit, the evidence was insufficient to find Cardona guilty. Yes, she drive the shooter out of the City. "No rational juror could have found that Cardoza knew that Maldonado was dead or dying during the relevant time period." Here is the reasoning, replete with the names of the other gang members who were caught up in the case:

The facts the Government employs to this task are insufficient to impute knowledge of Maldonado’s condition to Cardoza. Overton’s testimony that he was told that Cardoza would be around the corner waiting for him provided a reasonable inference only that Cardoza knew she was driving someone away from a crime. Although there was evidence that Lewis had been told that the plan was to kill Maldonado, there was no evidence that Cardoza was present when Lewis was so informed or that he relayed that information to her. Even if Cardoza was told that Maldonado was going to be shot, there is no evidence that she knew Maldonado was dead or dying when she drove Overton away.

Tambito’s direction to Cardoza to “[g]o get” Overton when he ran the wrong way, while showing that Cardoza understood that she was providing getaway services, does not show that she knew what Overton’s mission was or that it had been successful. Lastly, in the conversation between Overton and Lewis on the drive out of Newburgh, there is no indication that either Maldonado or the shooting were discussed.