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
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.
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 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
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.
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
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).
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
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
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
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
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] ...