Linda Bulone testified that she received a telephone call from
Vincent around 1:00 p.m. on September 28, 1997. T. 808. Vincent
was very shaky and very hesitant and upset. T. 808. Vincent told
Bulone about an incident involving Crowley and Valjato allegedly
making unwanted sexual advances on her. T. 816. Bulone, formerly
a medical administrator assistant at the Academy, helped Vincent
get in touch with Captain Larson. T. 806, 820-21.
After the government completed its case in chief, the Court
heard argument on the defendants' Rule 29 motions. The Court
reserved decision. T. 862. Defendant Crowley then called four
witnesses to the stand, each of whom testified to Vincent's poor
character and reputation for truthfulness. 864-889. One of these
witnesses, Matthew Delaney, lived in the room directly below that
of Vincent and Bechtel in September 1997. T. 872. Delaney saw
Francis Crowley on the stairway of the building at approximately
4:30 a.m. on Sunday, September 28, 1997, as Delaney was going to
get a soda. T. 878, 873. He testified that from his room he
usually could hear sounds from the sides, above or below. T. 874.
He did not hear any indications of a struggle that morning or any
calls for help. T. 874.
Following summations and the jury charge, the jury deliberated.
T. 962-1071. During deliberations, the jury asked to hear a read
back of the testimony of Jennifer Bechtel "pertaining to what she
overheard between the hours of 4:51 and 6:12." Court Exhibit 3;
T. 1123-24. Following the read back, the jury asked for
clarification on the definition of the word "force," as discussed
in element two of Count One. Court Exhibit 5; T. 1139. The Court,
after consulting with counsel, decided to tell the jury that it
had been provided the definition of "force," and that there would
be no further instruction on this point. T. 1142. The jury was
released to resume deliberations. T. 1142.
However, counsel for the defendants made an additional
application for clarification to the jury, which was opposed by
the government. T. 1142-43. Approximately thirty minutes later,
the Court again consulted with counsel and informed them of the
Court's decision to provide an additional clarification on the
meaning of "force." T. 1143. The Court heard additional argument,
T. 1143-52, and then called the jury back into the courtroom and
told them that the Court was preparing additional material with
respect to "force," but that they nevertheless could continue
their deliberations. T. 1152.
Following fifteen minutes of additional argument, T. 1153-57,
the Court provided the jury with a clarified definition of the
term "force." T. 1157-58. The jury left the courtroom at 4:24
p.m., and sent a note out one hour later indicating that they had
reached a verdict. Court Exhibit 6. The jury returned a verdict
of guilty on Counts One and Two, and not guilty on Counts Three
and Four, as to both defendants. T. 1159-62.
I. Fed.R.Crim.P. 29 — Motion for Judgment of Acquittal
In considering a motion for judgment of acquittal pursuant to
Rule 29, the Court must view the evidence presented in the light
most favorable to the government. United States v. Guadagna,
183 F.3d 122, 129 (2d Cir. 1999) (citing Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). All
permissible inferences must be drawn in favor of the government.
Id. The Court must avoid usurping the role of the jury. Id.
"[U]pon a motion for judgment of acquittal, `the Court 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.'" Id.
(internal quotation omitted). "[I]f the court `concludes that
either of the two results, a reasonable doubt or no reasonable
doubt, is fairly possible, [the court]
must let the jury decide the matter.'" Id. (quoting Curley v.
United States, 160 F.2d 229, 233 (D.C.Cir. 1947)).
II. Fed.R.Crim.P. 33 — Motion for a New Trial
"The burden of proving the need for a new trial lies with the
defendant." United States v. Sasso, 59 F.3d 341, 350 (2d Cir.
1995); see also United States v. Ferguson, 49 F. Supp.2d 321,
323 (S.D.N.Y. 1999) (citing United States v. Soblen,
203 F. Supp. 542 (S.D.N.Y. 1961), aff'd, 301 F.2d 236 (2d Cir.
1962)). The decision to grant or deny a motion for a new trial is
firmly within the broad discretion of the trial judge. Sasso,
59 F.3d at 350; see also Ferguson, 49 F. Supp.2d at 323 (citing
United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir. 1984));
United States v. Zane, 507 F.2d 346, 347 (2d Cir. 1974)
(reviewing trial court's denial of Rule 33 motion for abuse of
discretion); United States v. Madeoy, 912 F.2d 1486, 1490
(D.C.Cir. 1990) (decision to grant post-trial relief is within
trial court's sound discretion). "[I]n deciding whether to grant
a Rule 33 motion, a judge may weigh the evidence and determine
the credibility of witnesses." Ferguson, 49 F. Supp.2d at 323
(citing United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.
1992)). Moreover, on a Rule 33 motion, "[t]he Court is not
required to view the evidence in the light most favorable to the
Government." Id. (citing United States v. Lincoln,
630 F.2d 1313, 1319 (8th Cir. 1980)). Nevertheless, the Court's discretion
is limited to the extent that Rule 33 motions for a new trial are
"not favored and should be granted only with great caution."
United States v. Gallego, 191 F.3d 156, 161 (2d Cir. 1999)
(quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.
1975) (quoting United States v. Costello, 255 F.2d 876, 879 (2d
I. Motions of Defendant Francis Crowley
A. Attacks on the Indictment
Crowley argues that the Court should set aside his convictions
on Counts One and Two of the indictment, or alternatively order a
new trial, because the Grand Jury clause of the Fifth Amendment
was violated. Specifically, Crowley contends not only that these
counts of the indictment failed to charge essential facts, but
also that the government's proof, and the Court's instructions,
constituted an impermissible constructive amendment of the
1. Sufficiency of the Indictment
The issue presented is one of first impression. The question is
whether an indictment alleging violation of 18 U.S.C. § 2241 and
2242 must set forth the specific facts alleged to constitute the
proscribed sexual act in order to comply with the Fifth
Amendment's Grand Jury clause. For the reasons discussed below,
the Court holds that such factual particularity is required. As a
result, the motion must be granted and the indictment dismissed.
The Fifth and Sixth Amendments set forth bedrock principles of
constitutional law: "No person shall be held to answer for a
capital or otherwise infamous crime, unless on a prosecution or
indictment of a grand jury," U.S. Const. amend. V., and "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be informed of the nature and cause of the accusation." U.S.
Const. amend. VI. These principles are enshrined in Fed.R.Crim.P.
7(c), which states that "[t]he indictment . . . shall be a plain,
concise and definite written statement of the essential facts
constituting the offense charged." The Second Circuit has held
that fidelity to this rule is required in order to safeguard a
defendant's constitutional rights. Compliance with Rule 7(c)
fulfills the Sixth Amendment right to be informed of
the nature and cause of the accusation; it prevents a
person from being subject to double jeopardy as
required by the Fifth Amendment; and it serves the
Fifth Amendment protection
against prosecution for crimes based on evidence not
presented to the grand jury.
United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999)
(quotation marks omitted); see also United States v. Silverman,
430 F.2d 106, 110 (2d Cir. 1970) (analyzing sufficiency of the
indictment to "insure that the defendant [was] not tried upon a
theory or evidence which was not fairly embraced in the facts
upon which the grand jury based its charges"), modified,
439 F.2d 1198 (2d Cir. 1970).
Crowley argues that the indictment handed down by the grand
jury fails to satisfy the Fifth Amendment requirement explained
in Walsh and Silverman because the indictment was silent as
to which of the four sexual acts set forth in the statute the
defendant was alleged to have attempted to commit. See
18 U.S.C. § 2246(2). Thus, according to Crowley, there is a
substantial danger that he was convicted on evidence of alleged
sexual acts that was not presented to the grand jury. Crowley
contends that the failure to allege the specific unlawful conduct
proscribed by the statute is fatal because there is no way to
determine what conduct the grand jury chose to allege as
The government responds that this argument has been waived for
Crowley's failure to raise it before trial. This argument is
without merit. Rule 12 of the Federal Rules of Criminal Procedure
requires that "[a]ny defense, objection, or request which is
capable of determination without the trial of the general issue
may be raised before trial by motion." Fed. R.Crim.P. 12(b). This
rule further requires that any objection based on a supposed
defect in the institution of the prosecution, or any objection
based on alleged defects in the indictment, must be raised prior
to trial. Fed.R.Crim.P. 12(b)(1-2). Rule 12 declares that a
party's failure to raises objections that must be made prior to
trial "shall constitute waiver thereof," although the Court, for
good cause shown, may grant relief from the waiver. Fed.
By Notice of Motion dated April 14, 1999, defendant Valjato
presented an omnibus motion seeking, inter alia, a ruling
pursuant to Fed.R.Crim.P. 12 to dismiss the indictment as vague,
or in the alternative, an order directing the government to amend
the existing indictment so that it conformed with Fed.R.Crim.P.
7(c). By Notice of Motion dated April 12, 1999, Crowley moved,
inter alia, for an order "[a]llowing Mr. Crowley to join in the
motions of his co-defendant . . . to the extent that the same
apply to him." Given that both defendants were charged under the
same indictment, it is clear that Valjato's motion to dismiss the
indictment also applied to Crowley.*fn12 Thus, there was no
waiver of this issue by the defendants. See United States v.
Berlin, 472 F.2d 1002, 1007 (2d Cir. 1973) (holding that
appellant's failure to raise insufficiency of indictment
until after completion of government's case did not constitute a
waiver). In any event, if this challenge had in fact been waived,
the Court nevertheless would grant relief from the waiver,
prejudice and good cause having been shown. See Fed.R.Crim.P.
12(f); United States v. Forrester, 60 F.3d 52, 59 (2d Cir.
1995) (decision to grant relief from waiver firmly within trial
court's discretion); United States v. Freeling, 31 F.R.D. 540,
543 (S.D.N.Y. 1962) (same); see also United States v. Sutton,
961 F.2d 476, 478-79 (4th Cir. 1992) (defendant may challenge
sufficiency of indictment at any time in the proceedings);
United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977)
(holding that appellate review of sufficiency of the indictment
claim was barred by defendant's failure to raise issue in
The government further argues that the Court is required by the
law of the case doctrine to fully adhere to its prior decision on
this issue. This argument also fails.
The Court ruled on the defendants' motion to dismiss the
indictment at a pre-trial conference held on June 10, 1999.
Specifically, the Court stated:
The fourth motion that you bring is to dismiss under
Federal Rules of Criminal Procedure, Rule 7(c)(1),
and that the basis for that is the indictment is
vague, or in the alternative with this motion you
move to weigh [sic] the government to amend, to
reflect the specific facts of what happened on the
night in question, as you request in your memorandum
of law at page 16. Rule 7(c) requires that the
indictment quote, shall be a plain, concise and
definite written statement of the essential facts
constituting the offense charged. The law in this
circuit permits an indictment essentially to track
the statutory language of the — and simply requires
that the elements of the crime be stated. And the
government cites, and I concur in that, United States
v. Citrone [sic] at 783 F.2d 307. This indictment
meets those requirements. Clearly the indictment
informs the defendant of the offense he's charged
with so that he can make a proper defense to these
charges. It advises him of the date, place and acts
that he's alleged to have committed. So this motion
is also denied.
Transcript of Conference, June 10, 1999, at 6-7. At the time of
its ruling, however, the Court was unaware of the true nature of
the evidence that was to be presented by the government and the
significant tension between the proof as it was to be presented
at trial and the allegation of a singular "sexual act" as charged
in the indictment. The Court also failed to consider the full
nature of the Fifth Amendment rights that were at issue,
particularly on the question whether the defendants were about to
be tried on evidence that had not been presented to the grand
jury. Compare Walsh, 194 F.3d at 44 (outlining three
constitutionally required functions of Fed.R.Crim.P. 7(c)).