the need for a new trial lies with the defendant. United States
v. Soblen, 203 F. Supp. 542 (S.D.N.Y. 1961), aff'd,
301 F.2d 236 (2d Cir. 1962). Unlike a Rule 29 motion, in deciding whether
to grant a Rule 33 motion, a judge may weigh the evidence and
determine the credibility of witnesses. United States v.
Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The Court is not
required to view the evidence in the light most favorable to the
Government. United States v. Lincoln, 630 F.2d 1313, 1319 (8th
Cir. 1980). The Court's discretion is, however, somewhat limited
in that it 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 [such] that a serious miscarriage of justice may have
occurred." Id. Such motions are not favored and should be
granted only with great caution in exceptional circumstances.
United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958);
Soblen, 203 F. Supp. at 564. It is only where an injustice has
been done such that an innocent person may have been convicted
that there is a need for a new trial. Sanchez, 969 F.2d at
Sufficiency of the Evidence
Vilella argues that the evidence of his participation in the
Balbi robbery is insufficient to sustain his RICO conviction
because it consists solely of the incriminating testimony of
cooperating witness Rolando Lorenzo. He further argues that he
cannot be found guilty of the crack conspiracy because the
evidence (testimony from four cooperating witnesses and Elizabeth
Perez) is equally consistent with personal use and not
distribution of crack cocaine.
Regarding the Lorenzo testimony, "the jury is exclusively
responsible for determining a witness' credibility," Strauss,
999 F.2d at 696, and a reviewing court must give deference to the
jury's resolution of credibility. Desimone, 119 F.3d at 223.
Here, the jury apparently found Lorenzo to be a credible witness.
It is not my place to usurp this decision and hold otherwise.
With regard to the crack evidence, I reach a similar conclusion.
Although there was no seizure of narcotics or direct testimony as
to any drug transactions, the circumstantial evidence implicating
Vilella in a crack distribution conspiracy is overwhelming. "So
long as, from inferences reasonably drawn, the jury could have
found beyond a reasonable doubt that the defendant engaged in the
charged criminal conduct, a conviction based on circumstantial
evidence must be sustained." United States v. Sureff,
15 F.3d 225, 228 (2d Cir. 1994) (circumstantial evidence consisting,
inter alia, of taped telephone conversations using coded
language and surveillance disclosing suspicious activity
consistent with cocaine dealing supported defendant's conviction
of conspiracy to distribute cocaine when viewed as a whole). See
also Martinez, 54 F.3d at 1043-44 (inference of cocaine
distribution sufficiently supported where defendant was found
with small quantity of drugs, a scale and cut and a gun).
Accordingly, I decline to overturn Vilella's convictions based on
the alleged insufficiency of the evidence under either the
deferential standard of Rule 29 or the more liberal standard of
Kenneth Johnson's Outburst
Vilella argues that Kenneth Johnson's outburst prejudiced him
in that it sought to exculpate Johnson at Vilella's expense. The
statement: "The truth has got to come out. I want that read to
the jury" is arguably inculpatory from its very words as well as
the timing of its utterance — during Vilella's closing argument.
According to Vilella, his right to confront witnesses was
violated as Johnson was not called to the stand to explain what
he meant.*fn2 Vilella also argues that the ensuing
colloquy between the Court, Johnson and his attorney, held
outside his presence as well as that of his counsel, violated his
right to be present at trial and his right to counsel under the
Sixth Amendment of the United States Constitution. Although these
issues are better left for appellate review, I will address them
to determine if a new trial is warranted in the interests of
Unfortunately, courts have, on occasion, been confronted with
disruptive outbursts from co-defendants during the course of
multi-defendant trials. In both United States v. Aviles,
274 F.2d 179 (2d Cir. 1960), and Panico v. United States,
291 F. Supp. 728 (S.D.N.Y. 1968), aff'd, 412 F.2d 1151 (2d Cir.
1969), a defendant burst into a tirade before the jury accusing
his co-defendants. In each case, as here, the judge promptly
instructed the jury to disregard the defendant's statement.
Aviles, 274 F.2d at 193; Panico, 291 F. Supp. at 740. In
Panico, the court denied defendants' motion to vacate the
judgment noting that the trial court did everything in its power
to minimize the effects of the defendant's disruptive conduct and
that the steps taken*fn3 were sufficient to protect the rights
of the other defendants, including the movants. Panico, 291
F. Supp. at 740. In Aviles, the Second Circuit upheld the denial
of a motion for a mistrial, stating:
Manifestly it was not error to deny the mistrial
motions. If such conduct by a co-defendant on trial
were held to require a retrial it might never be
possible to conclude a trial involving more than one
defendant; it would provide an easy device for
defendants to provoke mistrials whenever they might
choose to do so. Under all the circumstances the
trial judge's instructions adequately dealt with the
situation and his denial of the mistrial motions was
Aviles, 274 F.2d at 193.
Here, as in Aviles and Panico, the jury was instructed that
Johnson's abrupt departure from the courtroom was the result of
his not feeling well and should not be considered as anything
other than that. There is no reason to assume that these
instructions were not heeded by the jury. See United States v.
Marshall, 458 F.2d 446, 452 (2d Cir. 1972). In fact, it cannot
be said that the jury did not carefully consider the evidence,
and only the evidence, against Vilella when it convicted him of
the robbery conspiracy and acquitted him of the murder
conspiracy. As Johnson himself was charged with the murder
conspiracy, one would expect his allegedly accusatory comments to
result in Vilella's conviction on the murder count. This did not
happen. Apparently, Mr. Johnson's comments, if in fact heard,
fell upon deaf ears. Although Vilella may press this issue on
appeal, the Kenneth Johnson outburst does not support acquittal
or, alternatively, a new trial.
The more serious issue is raised by Vilella's and his
attorney's absence from the colloquy following the incident. The
right to be present at trial extends to all stages of trial "`to
the extent that a fair and just hearing would be thwarted by [the
defendant's] absence.'" United States v. Canady, 126 F.3d 352,
360 (2d Cir. 1997) (quoting Snyder v. Massachusetts,
291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).
There have been, however, abridgements of this right which have
not resulted in reversal of convictions. For example, in
Yarborough v. Keane, 101 F.3d 894 (2d Cir. 1996), a hearing to
disqualify a witness was held outside the defendant's presence.
The Second Circuit conducted an in-depth examination of the
structural versus trial error dichotomy established in Arizona
v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d
302 (1991), and concluded that the error was trial error and,
hence, subject to harmless error analysis.*fn4 Yarborough, 101
F.3d at 896-98. The court noted that the defendant's absence from
the hearing, which was extremely brief and not part of the trial
proper, was of minimal importance. Id. at 898. The court then
held that any error in conducting the hearing without the
defendant present was harmless. Id. at 899. A similar
conclusion was reached by the Tenth Circuit in Luman v.
Champion, 108 F.3d 1388, 1997 WL 143594 (10th Cir. 1997), where
the judge had an ex parte communication with a juror concerning
the juror's possible prejudice or bias outside the presence of
both the defendant and his counsel. The court found any error in
the communication to be harmless, stating:
Though it may have been better practice for the judge
to have allowed counsel to read a transcript of his
meeting with the juror and to have recorded his
discussion with counsel about that meeting, it is
clear he informed counsel of the substance of his
meeting. Moreover, it was objectively reasonable for
counsel not to have cross-examined the juror, an
action that could well have been counterproductive.