The opinion of the court was delivered by: Kahn, District Judge.
MEMORANDUM — DECISION AND ORDER
Presently before the court is Defendant Taj Mohammed's motion
for a judgment of acquittal, pursuant to Rule 29 of the Federal
Rules of Criminal Procedure. For the following reasons his
motion is GRANTED.
Defendant was indicted on July 21, 2000 for three violations
of federal law for his alleged role in a drug conspiracy. At the
close of the Government's presentation of evidence, he moved for
a judgment of acquittal. The Court reserved its decision on that
motion and addresses it now.
A. Standard for Judgment of Acquittal Pursuant to
When deciding upon a motion for a judgment of acquittal, a
trial judge must determine whether, upon the evidence presented
and giving full play to the right of the jury to determine
credibility, a reasonable mind might fairly conclude guilt
beyond a reasonable doubt. United States v. Autuori,
212 F.3d 105, 114 (2d Cir. 2000). The Court must be careful to avoid
"usurping the role of the jury." United States v. Guadagna,
183 F.3d 122, 129 (2d Cir. 1999). As such, all evidence must be
viewed, whether direct or circumstantial, in the light most
favorable to the government and if the Court concludes that it
is "fairly possible" for either reasonable doubt or no
reasonable doubt to exist, the matter must be submitted to the
jury to decide the matter. Autuori, 212 F.3d at 114.
B. Counts 1 and 2 of the Indictment
Count 1 of the Indictment charges the Defendant with violating
21 U.S.C. § 952 and 963 while Count 2 charges him with
violating 21 U.S.C. § 841 and 846. The first charge alleges
that the Defendant knowingly and intentionally conspired with
individuals known and unknown to import heroin into this
country. The second charge alleges that the Defendant knowingly
and intentionally conspired with individuals to possess heroin
with the intent to distribute.
Because a conspiracy is "by its very nature a secretive
operation," United States v. Provenzano, 615 F.2d 37, 45 (2d
Cir. 1980), the government "need not present evidence of an
explicit agreement; proof of a tacit understanding will
suffice." United States v. Gordon, 987 F.2d 902, 906 (2d Cir.
1993) (quoting United States v. Skowronski, 968 F.2d 242, 247
(2d Cir. 1992)). Thus, the government may prove the elements of
a conspiracy, including defendant's knowledge of it and
membership in it, entirely by circumstantial evidence. See
United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989).
Circumstantial evidence indicating a conspiracy may "include
acts that exhibit a consciousness of guilt, such as false
exculpatory statements . . . and attempts to influence the
testimony of a witness." Gordon, 987 F.2d at 907 (citations
After placing it on a table in the apartment, she realized
that the return address on the package was from an address in
Pakistan that she did not recognize. She, along with her
daughter's friend and daughter, examined the package further and
concluded that it was not the books that were ordered. During
this time Defendant was asleep.
At some point over the following hour, he awoke and saw them
examining the package. He confirmed that the return address was
from an unknown source in Pakistan. He proceeded to carry the
package back to the first floor entrance-way and placed it
underneath a table near the front door without opening it. When
his wife asked Defendant about its contents, he replied by
telling her that "you women are nosy."
Approximately one hour later, law enforcement agents executed
a search warrant on the apartment and opened the package. Inside
were seventeen dresses sewn with plastic tubing filled with
1,353.6 grams of heroin. When confronted with this evidence,
Defendant allegedly made a series of contradictory statements,
including a denial that he ever touched the box. Later, he
allegedly stated that the "kilo" it contained was not his.
Particularly relevant to the Government's case regarding
Defendant's knowledge and participation in the alleged