The opinion of the court was delivered by: Amon, District Judge.
CORRECTED OPINION AND ORDER
On December 18, 1990, a jury convicted the defendant Paul
Padilla of conspiring and attempting to possess cocaine with
intent to distribute in violation of 21 U.S.C. § 846 and
841(a)(1) and (b)(1)(B) (Counts One and Two); forcibly assaulting
and resisting Special Agents John Henderson, Nicholas Maggio, and
Rene Robinson of the Drug Enforcement Administration (DEA) in
violation of 18 U.S.C. § 111 (Counts Three, Four, and Five); and
attempted murder of Agents Henderson and Robinson in violation of
18 U.S.C. § 1111, 1114 (Counts Six and Eight). The jury
acquitted the defendant of attempted murder of Agent Maggio
Defendant moves for judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure on Counts Six and
Eight. He further seeks a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure on Counts Three, Four, and
Special Agents John Henderson, Nicholas Maggio, and Rene
Robinson of the DEA testified to the following facts surrounding
the arrests of defendants, which formed the basis for the assault
and attempted murder charges.
The events commenced with the arrest of Rosa Arias at the
airport in Miami, Florida in possession of two kilograms of
cocaine. Arias agreed to cooperate with agents of the DEA in
making a controlled delivery of the drugs. She advised the agents
that she was supposed to deliver the drugs to "Rachel" in New
York and was to be picked up at La Guardia Airport by individuals
driving a maroon-colored van. She gave descriptions of both
Rachel and the other individuals who were involved and likely to
pick her up; namely, Rachel's son "Paulie" and her boyfriend,
Luis Medina. Arias flew to New York accompanied by Agent
Henderson. Sometime after they arrived, Henderson was notified
that the maroon van had been spotted on the upper level of the
Officers were sent ahead of Arias and Henderson to position
themselves around the van. Arias approached the van with
Henderson walking in front of her and Agent Robinson behind her.
Arias was initially greeted by her boyfriend, Luis Medina.
Padilla was in the driver's seat of the van and his co-defendant
Juan Torres was in the passenger's seat. The sliding
passenger-side door of the van was open. Both Padilla and Torres
were looking around the area. Padilla made eye contact with
Henderson. When Arias and Medina walked toward the van, Henderson
moved in to make the arrests.
Henderson ran towards the van and shouted in English and
Spanish "police, don't move." Robinson, who was in front of the
van at this point, drew her gun and shouted "police, freeze"
several times in English and Spanish. Agent Maggio approached the
driver's side of the van, shouted "police, freeze" several times,
and pointed his gun at Padilla. Henderson reached through the
open door of the van and grabbed Torres by the shirt to pull him
out of the van prompting Padilla to put the van into gear.
Henderson started to get into the van to prevent Padilla from
leaving. Padilla looked at Henderson and then looked at Maggio
and cursed. He lunged the van forward at an angle towards Maggio,
striking him in the shoulder and forearm and pinning him against
a taxi that had pulled alongside the van. The van quickly pulled
away from the curb with Henderson partially inside the van
holding onto Torres.
Henderson raised his gun towards Padilla. Torres reached down
towards the gun preventing Henderson from aiming it at Padilla's
chest. Henderson fired the gun at Padilla's legs, Padilla slumped
in his seat, and the van slowed to a stop. Padilla and Torres
were then arrested.
I. Attempted Murder Counts
Defendant contends that he is entitled to a judgment of
acquittal on the ...