The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM
On March 3, 1994, after a trial by jury, Teddy Moustakis was found not guilty of engaging in a racketeering enterprise, in violation of 18 U.S.C. § 1962(c) (Count Two), and not guilty of conspiring to engage in such an enterprise, in violation of 18 U.S.C § 1962(d) (Count One). He was found guilty under 18 U.S.C. § 371 of conspiring to violate 18 U.S.C. § 2314 by transporting stolen goods interstate (Count Twelve). At the close of the Government's evidence, Moustakis moved pursuant to Fed.R.Crim.P. 29(a) for a judgment of acquittal on all three counts and I reserved decision. Moustakis renewed the motion at the end of the entire case, and now renews the motion as to Count Twelve. He also renews an evidentiary objection and a later motion to strike the objectionable evidence. For the reasons discussed below, Moustakis' motion for a judgment of acquittal on Count Twelve is granted, as is his motion to strike.
Count Twelve charged that in or around May of 1990, defendants Moustakis, Robin Tellier, and Roy Tellier, along with Alphonse Rescigno, Ronald Rescigno, and Timothy Burns, conspired to transport interstate original works of art stolen from Nahan Gallery. Moustakis argues that there was insufficient evidence from which a reasonable juror could have found, beyond a reasonable doubt, that he was guilty of this charge.
The Second Circuit, in United States v. Taylor, 464 F.2d 240 (2d Cir. 1972), adopted the following standard for evaluating challenges to the sufficiency of the evidence:
"'. . . [A] trial judge . . . must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.'"
Id. at 243 (quoting Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 232-33 (D.C. Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947)); see United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). The burden placed on a defendant to meet this standard is "'very heavy.'" Strauss, 999 F.2d at 696 (quoting United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.), cert. denied, 488 U.S. 966, 102 L. Ed. 2d 530, 109 S. Ct. 493 (1988)). In reviewing the defendant's challenge, the court must "view the evidence, both direct and circumstantial, in the light most favorable to the government and must credit every inference that could have been drawn in its favor." United States v. Rosa, 17 F.3d 1531, 1542 (2d Cir.), cert. denied, 115 S. Ct. 211, 130 L. Ed. 2d 140, 1994 WL 371555 (1994).
The Government relies on the following evidence to prove the existence of the conspiracy charged in Count Twelve, and to establish Moustakis' role in that conspiracy. In late March and April of 1990, Robin Tellier began discussing plans to commit a robbery with Charles Schrader. (Tr. at 1121-23; 1151-60; 1163-64.) Schrader, who was cooperating with the Government, recorded these discussions. (Gov't Exs. 705, 710, 711, 713.) On May 1, 1990, Robin Tellier met with Schrader at Schrader's apartment and asked him if he was ready to participate in the robbery. (Tr. at 1215-17.) Robin Tellier then told Schrader that he planned to rob an art gallery, and that he knew someone who was willing to buy the stolen art. (Tr. at 1220-24.)
This May 1, 1990 conversation between Robin Tellier and Schrader was also recorded by Schrader. (Tr. at 1215; Gov't Ex. 715.) The transcript of this tape, prepared by the Government, reads, in part:
Schrader: Robin I need, I need money man. I need money, bad.
Tellier: (Unintelligible, "UI")
Schrader: You don't you don't understand. Today's the first and I don't get paid till Thursday, I only get $ 328 and my rent is $ 459.
Tellier: Uh, let me tell you what's there, O.K. What's there how (UI) . . . .
Tellier: Five months I have to write (UI) . . .
Tellier: Yeah. (UI) . . . store . . . ...