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UNITED STATES v. YU

October 25, 1995

UNITED STATES OF AMERICA, against KWOK CHING YU, Defendant.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

 Defendant Kwok Ching-Yu ("Yu") has moved pursuant to Rule 33, Fed. R. Crim. P. for an order granting him a new trial. For the following reasons, the motion is denied.

 Procedural and Factual Background

 Following a second jury trial *fn1" , petitioner Yu was convicted on December 15, 1992 for, among other counts, possession with intent to distribute two kilograms of heroin seized by DEA agents at a Texaco gasoline narcotics bust on November 8, 1988 (the "Texaco count"). Yu was found guilty of two counts of conspiracy to import into the United States and to distribute more than one kilogram of heroin in violation of 21 U.S.C. §§ 846 and 963; of being a principal administrator of a continuing criminal enterprise in violation of 21 U.S.C. §§ 848 (a) and (b); of two counts of importing heroin into the United States in violation of 21 U.S.C. §§ 812, 952, 960(a)(1), 960(b)(1)(A) and 18 U.S.C. § 2; and of possession of heroin with intent to distribute in violation of 21 § 812, 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2. The Count at issue here is count seven from the initial indictment, the Texaco count.

 During the trial, both at the close of the Government's case and again at the end of the trial, Yu moved pursuant to Fed. R. Crim. P. 29 for acquittal on the Texaco count due to insufficiency of the evidence connecting Yu to the heroin seized at the Texaco station. Both motions were denied.

 The evidence at trial regarding the Texaco heroin was provided through testimony of Davies Yu ("Davies") and a DEA agent. It was established that Yu recruited Davies and Simon Lai to transport Yu's heroin from Hong Kong to New York. The Texaco station incident occurred on November 8, 1988 when Davies and Tony Wong ("Wong" or "Tony") were arrested at the scene of a narcotics bust on Seventh Avenue in Manhattan where several kilograms of heroin were confiscated. The Government alleged that the heroin sold by Wong at the Texaco station was part of the scheme that involved Yu. The Government alleged that Yu supplied the heroin to Wong, through Davies, that was involved in the Texaco count. With regard to the heroin from Yu for Wong, Davies testified as follows:

 
Q: Around when was that?
 
A: Around the beginning of November [1988].
 
Q: Did Tony tell you how much heroin he wanted.
 
A: He wanted ... ten to fifteen [units] ...
 
***
 
Q: And when Tony told you this, what did you tell him?
 
A: I said I will ask for him.
 
Q: Did you tell him who you would ask?
 
A: I don't remember if I told him I would ask [Yu].... [After this conversation with Tony] I called [Yu]... I told him that Tony wanted about ten units or so....He said he will think and if he had any he would call me.
 
Q: Did there come a time when the defendant called you?
 
A: Yes .... He said he will give me 20. But when we go get it, it will be more than 20. But the rest he wanted me to drive down to Chinatown for him .... [We drove to] Queens Boulevard .... He said the car was parked across the street. He said that there are two boxes of merchandise in the trunk .... And then I got into the car and drove the car back to Manhattan .... I first stopped at 28th Street ... Tony was waiting for me there .... I asked him -- asked Tony to take one box away .... ...

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