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April 29, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.



At trial, the Government introduced evidence of the Balbi robbery through cooperating witness Rolando Lorenzo. Lorenzo testified that he had two distinct conversations that implicated Vilella in the robbery. The first conversation occurred prior to the murder and involved Lorenzo and Miguel Guzman. Lorenzo testified that Guzman told him that both Vilella and Kenneth Johnson were to be involved in a robbery/murder. Specifically, Guzman told Lorenzo that a "friend of someone Pablo knew" was going to come with a kilo of cocaine and they (Guzman, Johnson and Vilella) were going to rob and kill him. Trial Transcript ("Tr.") at 4027. The second conversation involved Vilella directly. According to Lorenzo, Vilella told him that he was sitting in the victim's car when Johnson pulled the trigger and that he jumped. Tr. at 4029. Specifically, "Pablo described it, like, oh, shit, when he shot him in the head, shit, I jumped. I said, goddam, this guy is bugging . . . I remember him jumping and say, when [Johnson] shot the victim behind the head, how he jumped because they [Johnson and Vilella] were the two ones inside the car." Id.

With regard to Vilella's participation in a crack conspiracy, five different witnesses testified. Elizabeth Perez testified that Vilella cooked cocaine into crack at her apartment. Tr. at 6250-51. Rafael Lebron testified that he saw Vilella and Guzman "bagging up" crack at an apartment on Trinity Avenue by "[p]utting the crack bottles in tape, sealing them, so nobody could open them." Tr. at 4859. According to Lebron, "a lot of bottles" were involved. Id. Lorenzo testified that Guzman gave Pablo cooked crack and then complained about him "coming short with the money." Tr. at 3902. Lorenzo further testified that Guzman told Lorenzo that Pablo complained about drug competition in the vicinity of the Moore Houses. Tr. at 3914-18. Specifically, Guzman said that "Pablo think [sic] that he is running shit over in this spot because there is a young man that live [sic] in the Moore Houses that want [sic] to sell crack there, and Pablo didn't like the idea. Pablo asked Miguel, How can you put this guy to crack where I got my crack at?" Tr. at 3914. Luis Soto testified that Pablo carried a bookbag containing both crack and heroin back to Union Avenue at Guzman's direction. Tr. at 1320-23. Finally, David Rivera testified that he accompanied Pablo in taking crack back to his (Pablo's) apartment where he put it in a shoebox over the refrigerator. Tr. at 2541-44.

An unfortunate incident occurred near the end of the seven-week trial in which seven defendants were jointly tried. During counsel's summation on Vilella's behalf, Kenneth Johnson, a co-defendant, stood up and said: "The truth has got to come out. I want that read to the jury." Tr. at 8653-55. He then abruptly left the courtroom. Shortly following this incident, after the jury was excused and most counsel had left the room, the Court had a brief discussion with Kenneth Johnson and his counsel regarding a proposed curative instruction to the jury. Neither Vilella nor his attorney, Richard Brewster, were present during this colloquy. Before summations resumed, the jury received the following instruction regarding Johnson's conduct: "Mr. Johnson left during the summation. He didn't feel well. He apologizes, but he had to jump and go. Don't consider that other than he just didn't feel well." Tr. at 8692. Later, during the afternoon session, Mr. Brewster moved for a mistrial. That motion was denied. Mr. Brewster did not make a request for a further curative instruction at any time after this incident.

Another point of contention occurred at the beginning of the trial. During the prosecution's opening statement, the Government told the jury that Vilella was a friend of Balbi and that he lured Balbi to the scene of the robbery/murder. During the course of the trial, however, no evidence was offered that Vilella was in fact Balbi's friend or that he lured him to his death.*fn1 This statement, according to Vilella, substantially prejudiced his right to a fair trial.


Rule 29 Standard

Rule 29 provides that a court may set aside a guilty verdict pronounced by a jury and enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. See Fed.R.Crim.P. 29. When evaluating a Rule 29 motion, a court must determine whether "a rational jury could conclude beyond a reasonable doubt that a defendant is guilty of the crime charged." United States v. Murgas, 177 F.R.D. 97 (N.D.N Y 1998) (citing United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)). "The conviction must stand if all the elements of the crime are established beyond a reasonable doubt." Id. (citing United States v. Moore, 54 F.3d 92, 100 (2d Cir. 1995)). A court must review the evidence in the light most favorable to the prosecution, United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997), resolve all reasonable inferences in favor of the Government, United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984), and resolve all issue of credibility in favor of the jury's verdict, United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991).

A defendant seeking to overturn a conviction on the ground of legally insufficient evidence "`bears a heavy burden.'" United States v. Cusimano, 123 F.3d 83, 88 (2d Cir. 1997) (quoting United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997)). The jury's verdict may be based entirely upon circumstantial evidence, United States v. Libera, 989 F.2d 596, 601 (2d Cir. 1993), which, like other evidence, is to be viewed "not in isolation but in conjunction." Strauss, 999 F.2d at 696. And while a conviction cannot rest on mere speculation or conjecture, it may be based solely on reasonable inferences drawn from circumstantial evidence. United States v. Pinckney, 85 F.3d 4, 7 (2d Cir. 1996). Furthermore, the Government need not preclude "every reasonable hypothesis consistent with innocence" United States v. Friedman, 998 F.2d 53, 59 (2d Cir. 1993) (quoting United States v. Soto, 716 F.2d 989, 993 (2d Cir. 1983)), and it is "the task of the jury, not the court, to choose among competing inferences." United States v. Martinez, 54 F.3d 1040 (2d Cir. 1995) (citing United States v. Stanley, 928 F.2d 575, 577 (2d Cir. 1991)). In short, a reviewing court "must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt." United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).

Rule 33 Standard

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