The opinion of the court was delivered by: Peter Leisure, District Judge
On March 21, 2003, following a two-week jury trial, defendant Barbara Renor Jasper was convicted of one count of embezzlement, in violation of 18 U.S.C. § 657. Defendant now moves for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons stated in this Opinion, the motion is denied.
Jasper was employed as a branch manager at the Secretariat Branch of the United Nations Credit Union ("Credit Union") until her termination in May 2000. Based on the government's evidence at trial, including documents, witness testimony and a video tape, the jury found that defendant embezzled cash from the Credit Union while in the process of replenishing automated teller machines ("ATM").
Defendant makes several arguments in support of her motion, including (1) that the Court's jury instruction on willfulness was incorrect; (2) that the Court's jury instruction should have stated that embezzlement required a taking of the Credit Union's money off premises; (3) that the evidence regarding intent was insufficient to sustain a conviction; (4) that the Court should not have quashed a subpoena served on the Credit Union on the first day of trial; (5) that the Court should have granted a mistrial because of the government's alleged disparagement of defense counsel in front of the jury; (6) that the government made inappropriate unsupported allegations in summation; and (7) that the indictment is duplicitous and the Court should have reviewed the grand jury minutes to insure that any date of theft submitted to the jury was actually charged by the grand jury. The Court finds no merit in any of defendant's contentions.
I. Standards for Rule 29 and Rule 33
When a defendant moves pursuant to Rule 29, the district court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotation marks omitted). The district court must draw all reasonable inferences in the favor of the government, See id., and must resolve all issues of credibility in favor of the jury's verdict. See United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed on the motion, a defendant must persuade the court 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." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (McLaughlin, J.) (internal quotation marks omitted). A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir. 1990) (internal quotation marks omitted); see also United States v. Cervone, 907 F.2d 332, 343 (2d Cir. 1990); United States v. Tillem, 906 F.2d 814, 821 (2d Cir. 1990) (stating that motions challenging the sufficiency of the evidence for a conviction "rarely carry the day").
Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). It confers broad discretion upon a trial court to set aside a jury verdict and order a new trial in order to avert a perceived miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). A defendant seeking a new trial bears the burden of demonstrating the "essential unfairness of the [original] trial." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). In adjudicating a Rule 33 motion, a court is entitled to weigh the evidence and, in so doing, to evaluate the credibility of witnesses. See Sanchez, 969 F.2d at 1413. A court, however, should exercise its discretion under Rule 33 sparingly, granting a new trial only in exceptional circumstances. See id. at 414. Indeed, "motions for a new trial are disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
II. Defendant's Contentions
A. The Jury Instruction on Willfulness Was Correct
Defendant first argues that the Court's instruction to the jury regarding willfulness was incorrect. A criminal defendant who challenges a jury charge after a conviction must show (1) that she requested an instruction that correctly described applicable law and (2) that the "instruction actually given was, viewed as a whole, prejudicial to [her] rights." United States v. Yousef, 327 F.3d 56, 130 (2d Cir. 2003); see also United States v. Pujana-Mena, 949 F.2d 24, 27 (2d Cir. 1991). The charge should be "viewed in its entirety and not on the basis of excerpts taken out of context, which might separately be open to serious question." United States v. Clark, 765 F.2d 297, 303 (2d Cir. 1985); see also Victor v. Nebraska, 511 U.S. 1, 16 (1994) (stating that an excerpt from a jury instruction "cannot be sequestered from its surroundings"); Scarpa, 913 F.2d at 1018. Furthermore, a reviewing court should also consider the questioned jury instruction ...