did not call Cabrera as a witness during its case-in-chief. When called to the stand by the defendant, Cabrera invoked his Fifth Amendment right.
Accordingly, Martinez attempted to seek information about the cellular telephone from the Government's other witnesses. During cross-examination, Special Agent Fredericks testified that he did not recall whether Cabrera used a cellular phone to make phone calls during the evening of September 17, 1992. Special Agent Fredericks also testified that he did not recall whether a cellular phone had been recovered from Cabrera at the time of the arrest. Agent Reid also testified that he did not know whether a cellular telephone had been seized after Cabrera was arrested.
The Government now concedes that a cellular telephone was, in fact, recovered at the time of Cabrera's arrest, as part of Cabrera's personal effects.
In December 1992, an Assistant United States Attorney issued a subpoena for the cellular telephone's records. Thereafter, William A. Temple ("Special Agent Temple"), a special agent with the ATF, spoke with a customer service manager at Cellular One in Rochester, New York. The customer service manager informed Special Agent Temple that, if the telephone had been stolen and reprogrammed to use an unauthorized account, it would not be possible to obtain the telephone records. As a result, Special Agent Temple did not execute the subpoena.
In connection with the defendant's post-trial motion, Special Agent Temple contacted Cellular One again and eventually retrieved the telephone records for Cabrera's cellular telephone. The Government provided these records to the defendant for the first time on January 14, 1994. See the telephone records, annexed to the Government's Sur-Reply in Opposition to the Defendant's Post-Trial Motion as Exh. "B." The telephone number of the Bronx bar at which Cabrera allegedly telephoned Martinez does not appear on these records.
Presently before the Court is Martinez's motion for a judgment of acquittal, or in the alternative, for a new trial. The Court will consider each of the defendant's contentions in turn.
I. Motion for Judgment of Acquittal
Martinez contends that the evidence is insufficient to sustain his conviction for conspiracy to distribute cocaine. Federal Rule of Criminal Procedure 29 provides that a court shall order the entry of judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses." Fed. R. Crim. P. 29. The defendant bears a heavy burden in challenging a conviction based on insufficient evidence. United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992); United States v. Rivera, 971 F.2d 876, 890 (2d Cir. 1992). "A conviction must be upheld if, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in its favor, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Medina, 944 F.2d 60, 66 (2d Cir. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)), cert. denied, 112 S. Ct. 1508 (1992). Moreover, the Government "is not required 'to preclude every reasonable hypothesis which is consistent with innocence.'" United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir. 1991) (quoting United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.), cert. denied, 488 U.S. 966, 102 L. Ed. 2d 530, 109 S. Ct. 493 (1988)). Thus, "'[a] jury's verdict will be sustained if there is substantial evidence, taking the view most favorable to the government, to support it.'" Id. (quoting United States v. Nersesian, 824 F.2d 1294, 1324 (2d Cir.), cert. denied, 484 U.S. 958, 98 L. Ed. 2d 382, 108 S. Ct. 357 (1987)).
Viewing the evidence in the light most favorable to the Government, the Court finds that there was sufficient evidence for a jury to find that Martinez was a member of a conspiracy to sell narcotics, and that he committed overt acts in furtherance of that conspiracy. The evidence showed that, while Cabrera repeatedly attempted to contact his "source" to obtain the narcotics for the transaction, it was not until Martinez appeared at the Grant Avenue vicinity that the narcotics became available. Furthermore, the evidence indicated that Martinez was more than "merely present" at the Grant Avenue vicinity during the time of the drug transaction. Martinez told Sandler that he had been reluctant to conduct the deal at the Grant Avenue vicinity, and spoke to Sandler about the customer and the purchase money. Martinez then walked several blocks with Joseph, Cristobal and Cabrera in the direction of Cabrera's automobile, where the narcotics were stored. Martinez's car was parked directly behind Cabrera's car. In addition, when Cabrera spotted the ATF surveillance car, Martinez instructed the group to wait for approximately five minutes, and then to proceed. Finally, after Joseph viewed the narcotics, Martinez asked him if he was satisfied, and the two men discussed the possibility of doing future business together. The Government also presented proof of Martinez's guilty plea to the bail-jumping count, as well as his prior narcotics conviction
as evidence of knowledge and intent. Based upon this evidence, it was reasonable for a jury to conclude that Martinez was guilty of narcotics conspiracy. Accordingly, the defendant's motion for a judgment of acquittal is denied.
II. New Trial
A. Interests of Justice
In the alternative, Martinez moves, pursuant to Fed. R. Crim. P. 33, for a new trial. Rule 33 provides: "The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice." In exercising its discretion pursuant to Rule 33, the Court is "entitled to 'weigh the evidence and in so doing evaluate for itself the credibility of the witnesses.'" United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992) (quoting United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). It is only in exceptional circumstances, however, such as where the testimony is patently incredible or defies physical reality, that the Court may intrude upon the jury's assessment of credibility. 969 F.2d at 1414. Accordingly, while the Court's discretion is broad, there are limits to it. "The court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable." United States v. Martinez, 763 F.2d 1297, 1312-13 (11th Cir. 1985). The Court should exercise its discretion sparingly, and new trials "should be granted 'only in exceptional cases in which the evidence preponderates heavily against the verdict."' United States v. Rush, 749 F.2d 1369, 1371 (9th Cir. 1984) (quoting United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981)).
Martinez argues that the weight of the evidence points to the conclusion that the Government failed to prove guilt beyond a reasonable doubt. Specifically, Martinez contends that the testimony of the Government's two key witnesses, Sandler and Joseph, was not credible, and that the Government failed to corroborate their testimony with any physical or forensic evidence. According to the defendant, "essentially, the government proved only that Martinez was standing on a street corner with three other men on a warm September night, and that he then took a walk with these men." See Memorandum of Law in Support of Defendant's Motion for Judgment of Acquittal, or in the Alternative, for a New Trial, at 11.
It is well settled that "mere presence at the scene of a crime, association with criminals, or even knowledge that a crime is being committed is insufficient to support a conviction . . . absent some purposeful behavior from which the requisite intent can be inferred." United States v. Jones, 605 F. Supp. 513, 515 (S.D.N.Y. 1984); see also United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975) ("Guilt may not be inferred from mere association with a guilty party."). Evidence that the defendant knowingly participated in the conspiracy is necessary. United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983).
Upon careful consideration of all of the testimony introduced at Martinez's trial, the Court concludes that there was ample evidence to support the defendant's conviction. Unlike cases in which a defendant was "merely present" during a drug transaction, the Government introduced evidence in this case to establish that Martinez knowingly participated in the conspiracy. Specifically, Sandler testified that Martinez said he initially was reluctant to conduct the deal on the street, and asked Sandler if he knew the customers and had seen the purchase money. Joseph testified further that Martinez accompanied the group to see the narcotics. According to Joseph, Martinez directed the group to stop upon observing a police vehicle, and then directed the group to proceed when the police vehicle left the area. Joseph also testified that Martinez asked him if he was satisfied with the cocaine, and they discussed the possibility of doing future business together. Finally, the Government introduced evidence of the defendant's failure to appear at a hearing before this Court, and his use of an alias when rearrested two months later, as evidence of consciousness of guilt.
In light of this evidence, it was reasonable for the jury to conclude that Martinez knowingly participated in the conspiracy to possess with intent to distribute cocaine.
The Court finds that there are no exceptional circumstances here to warrant intrusion upon the jury's assessment of the witnesses' credibility. Similarly, the Court rejects the defendant's argument that the fact that the Government filed a nolle prosequi with respect to Cristobal is evidence that Sandler and Joseph's testimony was incredible. Martinez contends that the testimony implicating Cristobal is suspect as the Government has concluded that Cristobal is not guilty. However, the Court cannot infer from the Government's decision not to prosecute Cristobal that Cristobal is in fact, not guilty. See United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir. 1990), cert. denied, 498 U.S. 1028, 112 L. Ed. 2d 673, 111 S. Ct. 681 (1991); United States v. Sangmeister, 685 F.2d 1124, 1127 (9th Cir. 1982) ("A nolle prosequi has been found not the equivalent of an acquittal."). As the Government itself has indicated, "the nolle with respect to Cristobal does not constitute any statement by the Government that Cristobal is innocent of the charges contained in the indictment." See letter from Barton to the Hon. Shirley Wohl Kram of 11/1/93, at 2, annexed to the Government's Memorandum of Law in Opposition to the Defendant's Posttrial Motions as Exh. "B."
The Court also finds that the admission of co-conspirator statements made in furtherance of the conspiracy need not be further corroborated by physical or forensic evidence. United States v. Simmons, 923 F.2d 934, 954 (2d Cir.), cert. denied, 500 U.S. 919, 114 L. Ed. 2d 104, 111 S. Ct. 2018 (1991); see also United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993) ("A conviction may be sustained on the basis of the testimony of a single accomplice, so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt."). Thus, the Court finds that Martinez received a fair trial, and that the interests of justice would not be served by granting him a new one.
B. New Evidence
Martinez also moves, pursuant to Fed. R. Crim. P. 33, for a new trial on the ground of newly discovered evidence. The defendant contends that the Government failed to provide him with the cellular telephone or any of its records, despite repeated requests by defense counsel for all items to which he was entitled, pursuant to Federal R. Crim. P. 16. Accordingly, the Court first must determine whether the Government was required to provide the defendant with information regarding the cellular telephone, pursuant to Rule 16, and, if so, whether the Government's failure to provide this information warrants a new trial.
1. Rule 16
Fed. R. Crim. P. 16(a)(1)(C) provides: