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U.S. v. ARTHUR

November 21, 2002

UNITED STATES OF AMERICA
V.
GEORGE ARTHUR, DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

On April 10, 2002, during the trial of this matter, counsel for the defendant moved this Court for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The Court found no basis to grant the motion as to Court Two of the Indictment and reserved judgment as to Count One. Following the defendant's conviction, the Court continued to reserve judgment as to Count One in anticipation of a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Because no Rule 33 motion was made, the Court articulated its ruling on the motion on the record on November 21, 2002 shortly before the Court imposed sentence on the defendant.

In addition, the Court has received correspondences from the parties disputing the quantity of heroin attributable to the defendant for purposes of determining his sentence. The defense maintains that no more than 1.7 kilograms has been established by the evidence which merits a base offense level of 32, whereas the government maintains that the evidence establishes a six kilogram figure and, accordingly, a base offense level of 34. The Court again resolved this dispute on the record on November 21, 2002 prior to imposing sentence on the defendant.

For the reasons stated on the record on November 21, 2002, the relevant excerpts of which have been attached hereto and are incorporated herein, it is hereby

ORDERED that the defendant's motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of CriminaL Procedure as to Count One of Indictment number 01 Cr. 276 is denied; and it is further

ORDERED that the government has met its burden of establishing by a preponderance of the evidence that the defendant intended and agreed to sell six kilograms of heroin in the course of committing the offense for which he was convicted under Count One of the Indictment.

United States of America v. George Arthur

No. 01 Cr. 276

Statement by the Court Regarding Defendant's Rule 29 Motion for Judgment of Acquittal and Regarding the Parties' Dispute Over the Applicable Drug Quantity

November 21, 2002

I.

On April 10, 2002, during the trial of this matter, counsel for the defendant moved this Court for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The Court found no basis to grant the motion as to Court Two of the Indictment and reserved judgment as to Count One. Following the defendant's conviction, the Court continued to reserve judgment as to Count One in anticipation of a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Because no Rule 33 motion was made, the Court will now state its ruling on the defendant's motion pursuant to Rule 29 as to Count One.

Rule 29 requires that a Court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed.R.Crim.P. 29(a). There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying a conviction." United States v. Brewer, 36 F.3d 266, 268 (2nd Cir. 1994) (citing United States v. Rosenthal, 9 F.3d 1016, 1024 (2nd Cir. 1993)) (internal quotations omitted). This burden requires the defendant to "demonstrate that, viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Brewer, 36 F.3d at 268-69 (citing United States v. Jones, 16 F.3d 487, 490 (2nd Cir. 1994)) (internal quotations omitted). Thus, a court may only enter a judgment of acquittal if the evidence of the crime alleged is "`nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" United States v. Thomas, No. S2 01 Cr. 76, 2002 WL 986708, at *1 (S.D.N.Y. May 13, 2002) (quoting United States v. Guadagna, 183 F.3d 122, 130 (2nd Cir. 1999)). "In conspiracy cases, the deference given to the jury's verdict is especially important because `conspiracy by its very nature is a secretive operation . . . .'" Thomas, 2002 WL 986708, at *1 (quoting United States v. Pitre, 960 F.2d 1112, 1121 (2nd Cir. 1992)).

Count One of the Indictment charges the defendant with conspiracy to distribute one kilogram and more of heroin in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(a), a crime which carries a maximum statutory penalty of life imprisonment. According to the Second Circuit Court of Appeals, "[i]n order to prove a conspiracy charge against a defendant, the government must present some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it. . . . Both the existence of the conspiracy and the defendant's participation in it with the requisite criminal intent may be established through circumstantial evidence. . . The defendant need not know the identities of all of the other conspirators, nor ...


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