The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge.
MEMORANDUM-DECISION AND ORDER
In this criminal case, the Government alleged that Defendant Steven Robinson ("Robinson") and six co-defendants, including his brothers Mark and Charles, engaged in a marijuana distribution operation in Albany, New York in the 1990s. All of Robinson's co-defendants pleaded guilty, but Robinson was tried before a jury in October and November 2002. Robinson was charged with (i) conspiracy to distribute and possess with the intent to distribute more than one hundred kilograms of marijuana, in violation of 21 U.S.C. § 846; (i) two counts of using a firearm in furtherance of the marijuana conspiracy, in violation of 18 U.S.C. § 924(c); and (iii) causing the death of another in the course of using a firearm, in violation of 18 U.S.C. § 924(j). On November 18, 2002, following a 15-day trial, the jury found Robinson guilty of all four counts. Presently before the Court is Robinson's motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) or, in the alternative, for a new trial pursuant to Fed.R.Crim.P. 33. Robinson argues that the evidence presented at trial was insufficient to convict him of any of the counts.
Rule 29 of the Federal Rules of Criminal Procedure provides that "the court on the defendant's motion 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). "[A] district court can enter a judgment of acquittal on the grounds of insufficient evidence only if, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, it concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) (citations omitted). When considering a motion for a judgment of acquittal, "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). Accordingly, this Court must "`give full play to the right of the jury to determine credibility'" and may not "`substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" Id. (quoting United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984)).
The Court must be particularly careful to defer to the jury in conspiracy cases because "a conspiracy by its very nature is a secretive operation, and it is a rare case `where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.'" U.S. v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992) (quoting United States v. Provenzano, 615 F.2d 37, 45 (2d Cir. 1980)). In reaching its verdict, the jury may rely "entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citations omitted). In addition, "[w]hen making a case based on circumstantial evidence, the government need not `exclude every reasonable hypothesis other than that of guilt.'" Guadagna, 183 F.3d at 130 (quoting Holland v. United States, 348 U.S. 121, 139 (1954)). A motion for a judgment of acquittal should thus be granted "only if the evidence that the defendant committed the crime alleged is `nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" Id. (quoting United States v. White, 673 F.2d 299, 301 (10th Cir. 1982)).
Rule 33 of the Federal Rules of Criminal Procedure states that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33. The Second Circuit recently explained the standard that governs a court's review of a Rule 33 motion:
The ultimate test on a Rule 33 motion is whether
letting a verdict stand would be a manifest injustice.
The trial court must be satisfied that competent,
satisfactory and sufficient evidence in the record
supports the jury verdict. The district court must
examine the entire case, take into account all facts and
circumstances, and make an objective evaluation. There
must be a real concern that an innocent person may have
been convicted. Generally, the trial court has broader
discretion to grant a new trial under Rule 33 than to
grant a motion for acquittal under Rule 29, but it
nonetheless must exercise the Rule 33 authority
sparingly and in the most extraordinary circumstances.
United States v. Ferguson, 246 F.3d 129
, 134 (2d Cir. 2001) (internal quotation marks and citations omitted).
When considering a Rule 33 motion, "the court may weigh the evidence and credibility of witnesses." United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000) (citation omitted). However, as with a Rule 29 motion, the Court must take care not to usurp the role of the jury. Ferguson, 246 F.3d at 133. "Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, `[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.'" Id. at 133-34 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)).
B. Sufficiency of the Evidence
1. Conspiracy to distribute and possess with the intent to distribute
more than one hundred kilograms of marijuana
At trial, witnesses likened Albany's North Swan Street in the 1990s to an open-air drug market. Witnesses testified that they purchased marijuana from Robinson and his co-conspirators from buildings on North Swan Street and an apartment on Alexander Street. The defense argued that while Robinson sold marijuana on North Swan, he was not engaged in a conspiracy with the named co-conspirators. However, several witnesses offered testimony linking Robinson to his co-conspirators. James Fredricks testified that he sought marijuana at a location where Mark Robinson grew, prepared for sale, and sold marijuana. He testified that Robinson was at this location and that he told Fredricks to come back later because Robinson wasn't selling at that time. Phillip Head and David ...