and any discussions among the jurors afterward, did not have a sufficiently injurious effect on the jurors so as to prejudice the defendants. The court believes that the hearing conducted during trial was sufficient to alleviate any concerns that the jurors would not be able to deliberate impartially, and so, another hearing is not necessary. The result of the prior hearing also satisfies the court that a new trial is not warranted because the jurors themselves stated that they were not prejudiced by the incident. Thus, defendant's Rule 33 motion is denied.
3. Defendant Lamont Joseph
It appears from the memorandum of law in connection with defendant Lamont Joseph's motions that he only moves for a new trial on the grounds that the jury may have been prejudiced by the incident with the audience members previously described. He seeks a new trial, or at the least, a hearing on the matter. However, as stated in regard to Ceasare Thomas' same motion, the court is satisfied that the jurors were not prejudiced by the incident and that the prior hearing was sufficient to establish that fact.
Also, defendant Joseph has submitted that insufficient evidence of his involvement in the conspiracy should act as a basis for a new trial should the court determine that it does not provide a basis for acquittal. However, Joseph does nothing more than recite the standard for a new trial under Rule 33 and provide the same facts as to insufficient evidence. Although in deciding a Rule 33 motion, the court may examine the weight of the evidence and the credibility of the witnesses, Sanchez, 969 F.2d at 1413, the burden of proving the need for a new trial lies with the defendant, Soblen, 203 F. Supp. at 564, and the court should only grant a new trial when it "concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred." Lincoln, 630 F.2d at 1319. Again, the court finds no problem with the strength of the evidence presented in regard to defendant Joseph, and without more than the bare standard and the recitation of facts provided by defendant Joseph, the court is unable to ascertain the true nature of his motion for a new trial based on insufficient evidence, and so, the motion is denied.
Additionally, defendant Joseph asserts that he was not provided with Brady impeachment material on government witnesses Lamont Pouncie and Timothy Thomas. He claims that the government did not provide records of Timothy Thomas' treatment or diagnosis of crack addiction. However, the government has made clear that it had no such documentation in its possession, nor should it have had such information, and so, they did not violate the Brady requirements. The court denies this basis for the Rule 33 motion on the same grounds as it did in the other defendant's similar motions regarding government witness Anthony Hulett.
Defendant Joseph also claims that he was not provided with Lamont Pouncie's plea colloquy or certain statements made by Pouncie to law enforcement officers. The government notes that all statements by Pouncie were turned over to the defendant and that the plea entered by Pouncie is a matter of public record. The government also notes that the defendant was informed of when that plea took place, and that because it occurred in open court, it was available to the defendant and there was no obligation on the government to have it transcribed. Finding the statements of the government to be true, the court denies defendant Joseph's motion pursuant to Rule 33 on these grounds as well.
4. Defendant Santos Bolden
Defendant Bolden, like the other defendants, asserts the jury incident provides grounds for a new trial. The court denies this motion based on the same reasons it denied this motion in regard to the other defendants. Bolden also uses the same grounds stated in his Rule 29 motion as grounds for an alternative grant of a new trial pursuant to Rule 33. Having found no Brady violation and having found that Bolden has supplied no facts to support the notion that a single conspiracy was not established at trial, the court does not find valid grounds for a new trial.
In summary, the court hereby denies all Rule 29 motions for acquittal and all Rule 33 motions for a new trial presented by the defendants Myron Thomas, Ceasare Thomas, Lamont Joseph, and Santos Bolden.
IT IS SO ORDERED.
Dated, July 3, 1995
at Watertown, New York
Thomas J. McAvoy
Chief U.S. District Judge