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United States District Court, S.D. New York

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] and circumstantially through the depth of his knowledge about the robbery plans." Government Memo, p. 20.

  The Government attacks the second premise of the Defendant's argument. The Government does not claim that merely demonstrating the his knowledge of the robbery attempt would suffice for conviction. Rather, it argues that based upon the evidence presented demonstrating the depth of the Defendant's knowledge of the attempted crime, the jury could have reasonably inferred that the Defendant either personally participated in or aided and abetted the robbery attempt. "The jury may base its verdict entirely on inferences from circumstantial evidence." United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). Page 8 Moreover, "convictions must be affirmed, so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt." United States v. Diaz, 176 F.3d 52, 89-90 (2d Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The question for this Court is whether the inference of the Defendant's participation was reasonably drawn.

  The Government offers three examples of the evidence upon which the jury could have based its inference of participation. First, the defendant knew of numerous facts about the firearms discovered in the jeep: their number, their type, the location of the jeep within which they were hidden, and their location within the jeep. Second, the defendant described a repelling rope and a hand-held radio that the police found in the jeep. Third, the defendant knew the date, time and location of the robbery.

  Applying the standards of Rule 29(c) cited above, this Court denies the motion for a judgment of acquittal on Count Four. The Government presented evidence that corroborated the Defendant's post-arrest confession, and the Defendant's depth of knowledge of the planned robbery reasonably suggested a participatory role. While the jury was by no means compelled to find that this knowledge indicated participation, we cannot conclude they were unreasonable to do so. Page 9

 2. The Evidence Establishes that the Robbery Plot Went Beyond Mere Preparation

  Defense argues in the alternative that Count Four must be set aside because no substantial step towards the robbery occurred. Proving an attempt requires demonstration both that the Defendant intended to commit the crime, and engaged in conduct amounting to a substantial step towards commission of the crime. See United States v. Delvecchio, 816 F.2d 859, 861 (2d Cir. 1987). The Defense argues that "no rational juror" could have found that the Defendant took a substantial step in the attempted robbery on Undercliff Avenue. Defense Memorandum, p. 6.

  The Government argues that moving the Jeep to the site of the attempted robbery, storing within it guns and tools for the robbery, and conducting surveillance from it collectively constitute the requisite substantial step. "It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime." United States v. Manley, 632 F.2d 978, 988 (2d Cir. 1980)(citing United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979)). The defendant and accomplices eliminated the need to transport their Page 10 guns, radios and climbing ropes to the targeted building on the day of the robbery by storing them ahead of time in the Jeep. And to successfully commit the robbery, they required information concerning the comings and goings of those in the apartment. They used the Jeep as reasonably secure vantage point from which to conduct surveillance of the apartment.

  The Government insists that "by moving the jeep — a jeep used to conduct surveillance and filled with the tools to be used in execution of the actual robbery — to such a short distance from the targeted apartment, the planners of the robbery completed a substantial step towards commission of the robbery." Government Memo, p. 26. According to Det. O'Shea's report, the Defendant had acknowledged that "they had been in the jeep on Undercliff for a few days watching the building that they were going to do the home invasion on." Government Exhibit 3, p. 2. Thus, the Defendant admitted to having participated in the surveillance. Thus, so far as the Defendant's liability for the attempted robbery goes, the Government contends, as it must, that his admitted surveillance alone provides the requisite substantial step.

  Determining what constitutes a substantial step is a chronic difficulty in inchoate crimes. "Whether conduct represents a substantial step towards the fulfillment of a criminal design is a determination so dependent on the Page 11 particular factual context of each case that, of necessity, there can be no litmus test to guide the reviewing courts." United States v. Manley, 632 F.2d 978, 988 (2d Cir. 1980). While the issue is extremely close, this Court cannot conclude that the jury unreasonably found that the Defendant's admitted role in keeping surveillance over the targeted building constituted a substantial step.

  The Second Circuit approach to criminal attempts draws heavily upon the Model Penal Code. See United States v. Crowley, 318 F.3d 401, 415 (2d Cir. 2003) ("[This Court has frequently cited the language of the Model Penal Code, which suggests that a substantial step is one that is `strongly corroborative of the actor's criminal purpose.'"). The Model Penal Code states that "[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor's criminal purpose . . . the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law . . . (c) reconnoitering the place contemplated for the commission of the crime." Model Penal Code § 5.01(2)(c) (American Law Institute 1985). Under the Model Penal Code surveillance alone would seem to satisfy the substantial step requirement.

  The explanatory commentary partially qualifies this conclusion: Page 12


Convictions for attempt have generally been sustained when the actor has been apprehended during or after reconnoitering the place contemplated for the commission of the crime. . . . However, because other factors were present in all of these cases, such as possession of weapons or equipment, confederates, or additional activities, it is difficult to assert unqualifiedly that reconnoitering, without more, was a sufficient overt act to constitute an attempt at common law.
Model Penal Code, § 5.01(2)(c) Comment 6(b) (iii)(American Law Institute 1985)(footnotes omitted). in the instant case, the police did find weapons and burglary equipment in the Jeep from which the Defendant admitted to having conducted surveillance. While the Defendant did not explicitly say that the guns and equipment were there while he conducted his surveillance, his detailed knowledge of them may reasonably give rise to the inference that they were (as held above). And as discussed below (see infra C, this sufficed to enable the jury to reasonably conclude that the Defendant had constructive possession over the guns and equipment. Since the jury could reasonably have concluded that the Defendant constructively possessed the weapons and equipment while conducting surveillance, this satisfies even the qualified substantial step requirement under the Model Penal Code.

  The Defendant argues, however, that the case law suggests that even the combination of surveillance and possession of weapons and equipment is insufficient. In support of this Page 13 position, the Defendant relies heavily upon United States v. Buffington, 815 F.2d 1292 (9th Cir. 1987). In that case, an informant told the police that the Defendants intended to rob a bank. The police observed two vehicles driving slowly around a shopping center in which two banks were located. Five days later, the three Defendants returned to the shopping center, drove past one of the banks twice, parked the car and exited it. One of the Defendants wore heavy clothing, including a scarf that covered his face. Another wore women's clothing. However, completely fortuitously, a power outage occurred at that time. The Defendants reentered the car and drove out of the parking lot. Police officers stopped the car, and arrested the Defendants. The police found two revolvers. All three were subsequently convicted of conspiracy to commit bank robbery, attempted unarmed bank robbery, use of a firearm in the commission of a felony, and being felons in possession of a firearm.

  On appeal, the Ninth Circuit reversed, holding that the "conduct fell short of constituting a substantial step toward the commission of robbery." Id. at 1302. in reaching this conclusion, the court cited Second Circuit law:

  In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing Page 14 it in context could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to [commit a crime].

 United States v. Manley, 632 F.2d 978, 987-88 (2d Cir. 1980). The court found that even though the Defendants were armed and had appeared to be reconnoitering the bank, "none made any move toward the bank." Id. at 1303. The actions of the Defendants were "entirely tentative and unfocused." Id. The court held that it was unreasonable for the jury to have concluded beyond a reasonable doubt — based merely upon the Defendant's actions in the parking lot — that they were casing the bank with the intent to rob it. Absent some purposeful movement towards the bank, their conduct did not "cross the boundary between preparation and attempt." Significantly, the court suggests that had the prosecution made use of the informant's testimony at trial, the jury would have been able reasonably to see this conduct as "strongly corroborative" of the intent to rob the bank. That testimony was suppressed at trial. Without it, the jury lacked the necessary context to conclude reasonably that a substantial step towards commission of the robbery had occurred.

  Here, the Defendant argues that the Government offered no evidence that anyone — let alone the Defendant — approached the apartment, displayed weapons, or tried to enter an apartment in that vicinity. Defendant's Memo, p. 7. However, Buffington cannot be read simply to mean that movement towards the target Page 15 of a robbery is necessary to satisfy the substantial step requirement, or even that such movement, plus surveillance and weapons, adds up to the minimum requirement of a substantial step. Rather, Buffington suggests that the conduct of a defendant, taken in context of all the evidence presented to the jury, must clearly manifest his intention to commit the robbery. The same act that in one context means nothing may in another strongly manifest his intention and so constitute a substantial step.

  Here, the evidence available to the jury consisted of the Defendant's statement that he conducted surveillance from the Jeep (corroborated by his detailed knowledge of the Jeep's location and contents), along with the with guns and burglary tools themselves. Admittedly, the Defendant never moved towards the apartment, and sitting in a parked Jeep — even one with guns concealed within it — is not inconsistent with innocence. However, observing the activities of a particular building in a Jeep with hidden guns takes on a particular significance when viewed within the context of the Defendant's corroborated post-arrest statements. Whereas in Buffington the informant's testimony concerning the robbery attempt was suppressed, the jury in this case heard evidence concerning the Defendant's statements about the attempted robbery. The Defendant's statements provided a context in which the evidence of the guns, Page 16 burglary tools, and his act of surveillance could conceivably become corroborative of an attempt to effect a robbery. The strength of this evidence surely did not compel the jury to reach this conclusion, but neither can this Court conclude that it was unreasonable for them to have done so.

 C. Counts Six and Seven

  Count Six of the Indictment charged the Defendant with using, carrying, or possessing a firearm in furtherance of the attempted robbery charged in Count Four, pursuant to 18 U.S.C. § 924(c). Count Seven of the Indictment charged the Defendant with being a felon in possession of a firearm in connection with the attempted robbery charged in Count Four, pursuant to 18 U.S.C. § 922(g). The Defendant argues that he did not use, carry or possess a firearm as required for conviction under § 924(c), and that he did not possess a firearm as required for conviction under § 922(g). The Government argues that the Defendant did constructively possess a firearm in satisfaction of the requirements of both statutes. Thus, for both Counts Six and Seven, the Defendant's conviction may be set aside if the jury unreasonably concluded that the Defendant constructively possessed the guns in the Jeep parked at Undercliff Avenue.

  "The government need not prove that [a defendant] physically possessed the firearm to establish a § 922(g) Page 17 violation; proof of constructive possession is sufficient." United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998). Moreover, the legal definition of constructive possession is broad. "Constructive possession exists when a person has the power and intention to exercise dominion and control over an object, and may be shown by direct or circumstantial evidence. . . . The government need not disprove that the weapon was subject to the dominion and control of others." Id. According to the Defendant's post-arrest statements, he sat in the Jeep in which the guns were hidden while conducting surveillance. The police recovered the guns from their hiding place based upon the Defendant's statements. Based on this evidence, the jury could reasonably conclude Defendant's knowledge of and access to the hidden guns constituted constructive possession of them.

 D. Analysis of the Proceedings Under Rule 33

  Federal Rule of Criminal Procedure 33 states that "the court may grant a new trial to [a] defendant if the interests of justice so require." Fed.R.Crim.P. 33. The Rule gives trial courts "broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). "In the exercise of its discretion, the court may weigh the evidence and credibility of witnesses . . . [but] the court may not Page 18 wholly usurp the jury's role." United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000). "The ultimate test on a Rule 33 motion is whether letting a guilty 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." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citing United States v. Sanchez, 969 F.2d at 1414). "The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. . . . 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.'" Id. (citing Sanchez, 969 F.2d at 1414). "There must be a real concern that an innocent person may have been convicted." Sanchez, 969 F.2d at 1414).

  While we believe that the convictions on the three counts in question just barely survive the Rule 29 Motion, we conclude that the combined consequence of all of the circumstances of this case have operated to deprive the Defendant of a fair trial. Where a court concludes that "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set Page 19 aside the verdict, grant a new trial, and submit the issues for determination by another jury." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). See also Tibbs v. Flordia, 457 U.S. 31 (1982). Here, we conclude that permitting that verdict to stand under the facts of this case would result in a manifest injustice to the Defendant.

  After the Defendant had told the arresting officers virtually all of the facts upon which the final Indictment was ultimately based, the Government determined to ask the grand jury to indict only on the single count of possession of a firearm on December 31, 2002. See Original Indictment, 03 Cr. 150, Feb. 4, 2003. The Defendant refused to plead guilty to that Count, and the jury subsequently acquitted him of it. Moreover, there were good grounds for that jury acquittal. The jury obviously rejected an officer's eyewitness identification of the Defendant after having heard and seen from a defense witness, the poor lighting conditions at the time when the identification took place. The jury also heard from a defense witness that defendant, accompanied by another, visited his child in the apartment at the relevant address shortly before a firearm was discharged. Immediately after the arrest, defendant vociferously asserted that the gun was not his and that the police should check for fingerprints. There was no evidence of his fingerprints on the gun. See Transcript, Nov. 10, 2003 p. Page 20 55-56 & 61. The jury may well have concluded that the Defendant's companion, not he, fired the gun in what was apparently New Year's Eve revelry. The Defendant may have refused to plead guilty to Count One because he believed with good cause that he was innocent.

  Subsequent to the Defendant's determination not to plead to the single felon in possession gun charge, the Government charged him in an eight count Indictment, adding the following counts to the initial felon in possession charge:

(a) one count of narcotics conspiracy under 21 U.S.C. § 846;
(b) three counts of Hobbs Act robbery under 18 U.S.C. § 1951;
(c) two counts of possession of a firearm in furtherance of narcotics trafficking under 18 U.S.C. § 924(c)(1)(A)(i); and
(d) one additional count of felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
See First Superceding Indictment, s(1) 03 Cr. 150, March 24, 2003. These additional counts were based entirely upon the Defendant's post-arrest statements, which themselves were corroborated solely by the physical evidence discovered in the Jeep. Later, the Government filed another superceding indictment. That indictment added four additional counts to the First Superceding Indictment:
(a) an additional Hobbs Act robbery count;
(b) two additional counts of possession of a firearm in furtherance of narcotics trafficking; and
(c) one count of witness tampering under 18 U.S.C. § 1512(b)(1)
The last is the only Count based on information obtained by the Government subsequent to the Defendant's post-arrest statements Page 21 to Det. O'Shea. See Second Superceding Indictment, s(2) 03 Cr. 150, June 25, 2003. Curiously, while it retained the felon in possession charge that had been added in the First Superceding Indictment, the Second Superceding Indictment actually dropped the initial felon in possession Count. Later, this was said merely to have been a typographical error. See Transcript, Sept. 22, 2003 p. 3-4.

  The Government thus filed a final Indictment, which restored the initial felon in possession count and dropped two of the possession in furtherance of narcotics trafficking counts. See Third Superceding Indictment, s(3) 03 Cr. 150, Nov. 5, 2003. It was under this ten count Indictment that the Defendant was tried. During the suppression hearing, the Government stated that it did not received the DD5 (the transcript of the Defendant's post-arrest statements to Det. O'Shea) until after the first indictment had been filed. Transcript, Oct. 7, 2003 p. 76. Moreover, the Government obliquely indicated that it had discussed the possibility of Defendant's pleading to a single count of the Indictment. Id. The implication is that the Government continued to offer the Defendant the opportunity to plead to the initial gun possession charge. The concern, in light of the jury verdict acquitting the Defendant of that Count on the basis of extremely weak Page 22 evidence, is that the Defendant was actually innocent of that charge, and therefore could not plead guilty to it.

  For good reason, charging decisions are left to the sound discretion of the United States Attorney's Office and are beyond the purview of the Court. Apart from all other considerations, the Court plays no role in plea negotiations and is apprised of only those facts which the parties bring before it. It is not for this Court to pass judgment on the appropriateness of the procedural history of this case.

  Nonetheless, under the totality of circumstances approach required under Rule 33, the Court must consider the impact of these occurrences. The final Indictment charged the Defendant with ten Counts, of which he was convicted of three. Of the rest, Count Ten (witness tampering) was dismissed with the Government's consent (see Transcript, Nov. 13, 2003 p. 290), after it rested; Count Four of the original Third Indictment (a Hobbs Act count arising from the alleged 188th Street robbery) was dismissed by the Court because there was a total lack of evidence to support it (id. at 296), after the Government rested; the jury acquitted the Defendant on the five remaining Counts (Counts One, Two, Three, Six and Nine of the original Third Indictment).

  The question which troubled the Court (see Transcript, January 12, 2004) is whether the Defendant has been prejudiced Page 23 with respect to the trial of the three counts on which he was convicted because of the foregoing circumstances. We recognize that some of the evidence introduced with respect to the other counts might have been introduced in any event under the rubric of consciousness of guilt testimony, but the quantity and impact of that testimony would be far less than what was introduced in this trial.

  We also recognize that a conscientious jury perceived some of the deficiencies in the Government's case (e.g. the total absence of any evidence of a single conspiracy encompassing robberies at an apartment on 188th Street, an apartment on Undercliff Avenue, and in the vicinity of 170th and College Streets as alleged in Count Two). But, where as here, the quantum of corroboration of Defendant's post-arrest statements made at a time at which he was trying to impress the officers of his potential usefulness to them, just barely survives analysis under United States v. Bryce, 208 F.3d 346 (2d Cir. 2000) and the Government is compelled to resort to such attenuated arguments as the concept of "aiding and abetting constructive possession," we conclude that the spillover prejudice from the seven counts unduly prejudiced Defendant's right to a fair trial on the remaining three counts.

  Moreover, contrary to the Government's assertion that the circumstances surrounding the Defendant's admissions furnish Page 24 assurance of their credibility, we are of the opinion that his efforts to curry favor with the arresting officers enhances the need for independent corroboration. We reject the Government's claim that, under United States v. Bryce, the Defendant's admissions may be deemed self-corroborating.

  This is especially troubling given how extensively the Government's case depended on the essential accuracy of the confession. The physical evidence supporting and corroborating the Defendant's statements, as discussed above, consisted exclusively of the physical evidence found in the Jeep. In and of itself, that physical evidence cannot prove that an attempted robbery was in progress. Rather, the same evidence essential to corroborating the Defendant's post-arrest statements constitutes a "substantial step" in an otherwise undocumented attempted robbery only when viewed in light of the Defendant's post-arrest statements. The guns and tools corroborate the Defendant's statements, and then his statements in turn create a context in which the guns and tools appear to manifest his intention to participate in the attempted robbery. While this is not inevitably circular (and so survives the Rule 29(c) motion), the thinness of this evidence weighs heavily against finding beyond a reasonable doubt that the Defendant intended to aid and abet the attempted robbery for which he was convicted. Page 25

  In determining whether spillover prejudice has tainted convictions, the courts of the Second Circuit have considered a number of factors, the most relevant of which here is the strength of the Government's case on the surviving counts. See United States v. Hamilton, 334 F.3d 170, 182 (2d Cir. 2003) ("we have articulated a three-part test for determining whether there was likely prejudicial spillover from the evidence submitted in support of convictions that were set aside after trial. We consider . . . (3) whether the government's evidence on the remaining counts was weak or strong."). See also United States v. Wapnick, 60 F.3d 948, 953-54 (2d Cir. 1995); United States v. Rooney, 37 F.3d 847, 855-56 (2d Cir. 1994). Although legally sufficient evidence existed to support the conviction, the potential for prejudicial spillover was high due to the extraordinary weakness of the evidence on the remaining counts noted above.

 E. Sua Sponte Conversion of a Rule 29 Motion to a Rule 33 Motion

  Defendant moved under Rule 29 for a judgment of acquittal which we deny, but he has also moved for such of the relief as the Court deems warranted. See Defendant's Notice of Motion, Nov. 21, 2003, p. 1 (seeking "an Order to set aside the guilty verdicts rendered against Mr. Clemente . . . and for such other relief as the Court deems just and proper."). We believe that Page 26 this alone constitutes a sufficient and timely request for a new trial. Even if it did not, however, this Court has the discretion to convert a timely motion under Rule 29(c) to a motion under Rule 33. "The language of [Rule 33] precludes the filing of a motion for a new trial after seven days, but does not address the district court's authority to deny a timely motion for acquittal, while nonetheless concluding that the arguments underlying the motion justify a new trial . . . [the Rules themselves] do not preclude the district court's [conversion]." United States v. Taylor, 176 F.3d 331, 335 (6th Cir. 1999). Having determined that the verdict survives — but only just Defendant's Rule 29(c) motion, this Court has the power sua sponte to convert the Defendant's motion to a Rule 33 motion for a new trial:

  Since the Rules do not preclude a district court from sua sponte converting a Rule 29 motion into a Rule 33 motion, the court finds the following standard to be proper: (1) if the defendant timely files a Rule 29 motion and if under the Rule 29 standard, which views the evidence in the light most favorable to the Government, the court finds there are insufficient grounds to grant a Rule 29 motion; yet (2) to allow the verdict to stand would result in a serious miscarriage of justice; then (3) the court may review the evidence, sua sponte, under the Rule 33 standard; and (4) if the court finds that "the evidence preponderates sufficiently heavily against the verdict," . . . then (5) the court may sua sponte convert the timely filed Rule 29 Page 27 motion into a Rule 33 motion to avoid a miscarriage of justice.

 United States v. Navarro Viayra, 206 F. Supp.2d 1057 (E.D.Cal. 2002)(internal citations omitted). Here, the Defendant's Rule 29 motion was timely. And while this Court has denied that motion, it has serious concerns that a miscarriage of justice would result if the verdict were permitted to stand. For the reasons described above, this Court's review of the evidence under the Rule 33 standard strongly supports the conclusion that a new trial is warranted. This Court converts the Defendant's Rule 29(c) motion of acquittal to a motion for a new trial pursuant to Rule 33. The Court hereby sets aside the conviction on Counts Four, Six and Seven and determines that the Government may, if it sees fit, retry the Defendant on those counts.

 III. Conclusion

  In summary, we find therefore that where (as here):

(1) the Defendant is acquitted on the original charge to which he refused to plead guilty;
(2) superceding indictments named the Defendant in additional counts, two of which were dismissed by the Court at the close of the Government's case, and only one of which was based upon information not available to the prosecuting authorities at the time of the Defendant's arrest; and
(3) of paramount importance, where the evidence supporting the three counts on which the Defendant was convicted is so weak as to barely survive a motion for judgment of acquittal, and the threat of spillover prejudice is present to such a large extent,
Page 28

 this Court concludes that the convictions as to Counts Four, Six and Seven must be set aside. The Government may retry the Defendant on those counts, if it so chooses. The Government is to advise the Court and the Defendant by February 23, 2004 as to what further action it proposes to take in this case.



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