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January 20, 2004.


The opinion of the court was delivered by: LEONARD SAND, Senior District Judge.


Defendant Luis Clemente has made a timely motion under Fed.R.Crim.P. 29(c) for this Court to enter a judgment of acquittal and such other relief as the Court deems appropriate on Counts Four, Six, and Seven of the Third Superseding Indictment ("Indictment"). For the reasons set forth below, the Defendant's motion is converted to a motion for a new trial under Fed.R.Crim.P. 33 and as such is granted as to all three counts.

I. Background

  Around midnight on December 31, 2002, the Defendant Luis Clemente was arrested for possession of a firearm (he was ultimately acquitted by the jury on this Count). After he was arrested, the Defendant was interrogated at length by Detective Claude O'Shea, while Officer Felix Gross translated. in the course of this questioning, the Defendant allegedly told Det. Page 2 O'Shea about his involvement in a number of robberies. Along with several others, the Defendant said he had robbed narcotics dealers of their drugs and cash. According to the these statements, the robbers would conduct surveillance of the targeted drug dealer's apartment from a Jeep parked nearby. Within the Jeep, there existed a hidden compartment in which they hid two handguns to use in the course of the robbery. One such robbery was slated to occur on January 1st, sometime between 9:30 and 11:30 AM. The robbers would arrive in a white Intrepid, retrieve the guns and additional burglary tools from the Jeep, and then conduct the robbery.

  The police, along with the Defendant, went to the Undercliff Avenue and waited. A white Intrepid drove by, but did not stop. According to the police, the Defendant hid himself from view in the back of the unmarked police car while the Intrepid drove past. Eventually, the police searched the Jeep, and found the guns and robbery tools exactly as the Defendant had described them. They returned to the police station, and at that point Detective O'Shea proceeded to write up the post-arrest statements of the Defendant.

  The Defendant was convicted by a jury on November 14, 2003 on three counts. Count Four charged the Defendant with attempted robbery in violation of the Hobbs Act. Count Six charged the Defendant with use of a firearm in furtherance of Page 3 that attempted robbery. Count Seven charged the defendant with possession of a firearm while being a convicted felon. All of these counts related to the attempted robbery that was to occur in an apartment on Undercliff Avenue in the Bronx on January 1, 2003; the Defendant was found not guilty on all other counts. The Defendant moved under Rule 29(c) to set aside the verdict as to Counts Four, Six and Seven.

 II. Discussion

 A. The Legal Standard under Rule 29(c)

  "A defendant challenging the sufficiency of the evidence to support his conviction carries a heavy burden." United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). "It is axiomatic on motion for acquittal that all reasonable inferences are to be resolved in favor of the prosecution and the trial court is required to view the evidence in the light most favorable to the Government with respect to each element of the offense." United States v. Artuso, 618 F.2d 192, 195 (2d Cir. 1980) (citing United States v. Skinner, 425 F.2d 552, 554 (D.C. Cir. 1970)); see also United States v. Moore, 208 F.3d 411, 413 (2d Cir. 2000). Furthermore, in "review of [Rule 29(c)] claims, `pieces of evidence must be viewed not in isolation but in conjunction.'" U.S. v. Benitez, 920 F.2d 1080, 1088-89 (2d Cir. 1990) (quoting United States v. Geaney, 417 F.2d 1116, 1121 (2d Page 4 Cir. 1969)). In matters of factual determinations, the Court must defer to the jury's verdict. "These strict rules are necessary to avoid judicial usurpation of the jury function. The court should not substitute its own determination of the credibility of witnesses, the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Mariani, 725 F.2d at 865.

  However, "the government must do more than introduce evidence `at least as consistent with innocence as with guilt.'" United States v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991) (citing United States v. Mankani, 738 F.2d 538, 547 (2d Cir. 1984)). A court must grant a motion for a judgment of acquittal "if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (citing United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972)). "A reasonable mind must be able to conclude guilt on each and every element of the charged offense." Id. (citing United States v. Macklin, 671 F.2d 60, 65 (2d Cir. 1982).

 B. Count Four

  Count Four of the Indictment charged the Defendant with attempted robbery pursuant to the Hobbs Act, 18 U.S.C. § 1951. The attempted robbery was to have taken place the morning of Page 5 January 1, 2003 in an apartment on Undercliff Avenue, Bronx, New York. To prove a defendant guilty of attempted robbery under the Hobbs Act, the Government must prove the following three elements beyond a reasonable doubt:
(1) that the Defendant attempted to obtain or take the personal property of another (or from the presence of another);
(2) that the Defendant attempted to take the property against the victim's will, either by actual or threatened force, violence or fear of injury (immediate or in the future); and
(3) that interstate or foreign commerce, or an item moving in interstate or foreign commerce would have been delayed, obstructed or affected in any way or degree had the robbery been completed.
  Here, the Defendant was convicted of attempting to take narcotics from drug dealers. Proving a criminal attempt requires the Government to demonstrate first that the Defendant intended to commit the substantive offense, and second, that the Defendant completed a substantial step towards the completion of that crime.

  Combining these legal rules with the facts of this case, to convict the Defendant of Count Four, the Government had to prove beyond a reasonable doubt (1) that the Defendant intended to Page 6 steal narcotic drugs belonging to another by actual or threatened force and in so doing interfere with interstate or foreign commerce, and (2) that he made a substantial step towards completing that robbery.

  In addition, the Government charged the Defendant with aiding or abetting the attempted robbery at the apartment. Under an abetment theory, the jury could have convicted the Defendant for (1) having intended to help others to steal narcotic drugs by actual or threatened force and in doing so interfere with interstate or foreign commerce, and (2) having made a substantial step towards helping them to complete that robbery.

 1. Sufficiency of Evidence to Find Participation, Not Merely Knowledge

  The Defendant argues that his conviction on Count Four must be set aside. First, the Defendant notes that uncorroborated post-arrest statements alone are insufficient to support a conviction. See United States v. Bryce, 208 F.3d 346 (2d Cir. 2000). Second, the Defendant asserts that apart from his post-arrest statements, none of the evidence introduced by the Government demonstrates actual participation in the robbery. At most, he argues, the Government's evidence demonstrates mere knowledge on his part of the planned robbery. Since Page 7 uncorroborated statements alone are insufficient, and no other evidence corroborates Defendant's participation, the Defendant asserts the evidence does not support the conviction. Accordingly, the Defendant concludes the conviction must be set aside.

  The Government argues that the evidence sufficiently corroborated the Defendant's statements, and justified the jury's inference that the Defendant intended to participate in the robbery. "The evidence at trial showed that the defendant was a participant in the planned robbery and not merely someone with knowledge of the robbery. His participation was proven through [his post-arrest statement] ...

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