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U.S. v. ADENIYI

May 12, 2004.

UNITED STATES OF AMERICA -v- ADEWALE ADENIYI, Defendant


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

MEMORANDUM OPINION AND ORDER

On March 2, 2004, Defendant Adewale Adeniyi ("Adeniyi" or "Defendant") was convicted, after a jury trial, of one count of conspiracy to commit wire fraud and pass fictitious instruments, one count of wire fraud and one count of passing fictitious instruments. Defendant moves for an order setting aside the guilty verdict and granting a judgment of acquittal pursuant to Fed.R.Crim.P. 29, or, in the alternative, vacating the judgment and granting a new trial pursuant to Fed.R.Crim.P. 33. Defendant claims that he was denied his Sixth Amendment right to confront the witnesses against him when the Court sustained the Government's objection to certain questions asked by defense counsel of Special Agent John Bross ("Bross") during cross-examination. Defendant also contends that he was denied his right to an impartial jury when the Court failed to excuse a particular juror for cause after that juror disclosed information after the completion of voir dire that the juror thought might have been responsive to a question asked of him during voir dire. Finally, Defendant argues that the Court improperly allowed into evidence, as a possible indicator of Defendant's consciousness of guilt, Bross's testimony regarding a non-hearsay out-of-court statement made just prior to Defendant's arrest by Defendant's common-law adeniyi.posttrial.vvpd version 5/12/04 wife, Yinka Wilkerson ("Wilkerson").

The Court has considered thoroughly all of the parties' submissions relating to the instant motion. For the following reasons, Defendant's motion is in all respects denied.

 Rule 29 Standard

  A district court is authorized to enter a judgment of acquittal pursuant to Rule 29 if the evidence is insufficient to sustain a conviction. United States v. Kwan, No. 02 CR. 241 (DAB), 2003 WL 22973515, *2 (S.D.N.Y. Dec. 17, 2003) (quoting United States v. Reyes, 302 F.3d 48, 50 (2d Cir. 2002)). A court "will grant a motion to enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). A defendant "bears a heavy burden" in challenging the sufficiency of the evidence to support his conviction. Id. (quoting United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001) (internal quotations omitted)). "Not only must the evidence be viewed in the light most favorable to the Government and all permissible inferences drawn in the Government's favor . . . but the jury verdict must be upheld if `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson, 335 F.3d at 180 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). The Second Circuit has "emphasized that courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal." Id "[A] court may grant a judgment of acquittal only `if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.'" Jackson, 335 F.3d at 180 (quoting United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal quotations omitted)). Rule 33 Standard

  Rule 33(a) provides, in pertinent part, 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." "Rule 33 confers broad discretion upon a trial court 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). "The test is whether it would be a manifest injustice to let the guilty verdict stand." Id. at 1414 (internal citations omitted). "`Manifest injustice1 means that `there must be a real concern that an innocent person may have been convicted.'" United States v. Arroyo, 301 F. Supp.2d 217, 225 (D. Conn. 2004) (quoting Sanchez, 969 F.2d at 1414)). "A court, however, should exercise its discretion under Rule 33 sparingly, granting a new trial only in exceptional circumstances." United States v. Jasper, No. 00 CR. 0825 (PKL), 2003 WL 21709447, *2 (S.D.N.Y. July 23, 2003) (citing Sanchez, 969 F.2d at 1413). "`[M]otions for a new trial are disfavored in this Circuit.'" Jasper, 2003 WL 21709447 at *2 (quoting United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995)).

 Defendant's Contention That His Rights Under the Confrontation Clause of the Sixth Amendment Were Violated

  Defendant argues that he was denied his Sixth Amendment right to confront the witnesses against him when the Court sustained the Government's objection to certain questions asked by defense counsel during cross-examination of Special Agent John Bross on the ground that the questions were beyond the scope of Bross's direct testimony. Defendant contends that the questions objected to were not beyond the scope of the witness' direct testimony. Defendant further asserts that since the questions at issue were "designed to illustrate significant inconsistencies" between Bross's Grand Jury testimony and the testimony of other witnesses at trial, such questions should have been permitted on the premise that prior inconsistent statements may be used to impeach the credibility of a witness. Both of Defendant's contentions are without merit.

  The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ." U.S. Const. Amend VI. "The primary purpose of this guarantee is to secure for the defendant the opportunity for cross-examination." Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir. 2003). "`Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.'" Cotto, 331 F.3d at 229 (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). Thus, "`the opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the fact-finding process.1" Cotto, 331 F.3d at 229 (quoting Kentucky v. Stincer, 482 U.S. 730, 736 (1987)).

  Notwithstanding its importance, the right to cross-examine a witness is by no means absolute. Fuller v. Gorezvk, 273 F.3d 212, 219 (2d Cir. 2001). "`[T]rial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness1 safety, or interrogation that is repetitive or only marginally relevant.'" Id at 219-20 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Accordingly, a district court has the authority to determine that a certain area of inquiry is beyond the scope of the witness1 testimony on direct examination and therefore is foreclosed on cross-examination pursuant to Fed.R.Evid. 611(a) and (b). United States v. Koskerides, 877 F.2d 1129, 1136 (2d Cir. 1989). Rule 611(b) provides, in relevant part, that "cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." A district court is afforded "broad discretion to determine the scope of cross-examination." Koskerides, 877 F.2d at 1136.

  Special Agent Dross's testimony on direct examination was limited in scope to his preparation of a photo array and the circumstances of Defendant's arrest. (Trial Tr. Vols. 5-6 at 644:14-661:12) No other details of the Government's investigation were the subject of direct examination. Nonetheless, Defendant maintains that defense counsel's inquiries about the substance of Bross's grand jury testimony and other facets of the investigation were within the scope of direct given that Bross had testified during direct examination that he had conducted an investigation into Defendant's alleged wrongdoing and had engaged in conversations with witnesses. Defendant contends that, as a result, he should have been permitted to "cross-examine Agent Bross regarding the investigation and the conversations with the witnesses that were part of that investigation" leading up to Defendant's arrest. (Def's Mem. of Law in Supp. of Motion for Judgment of Acquittal and New Trial at 6, n. 1.)

  Contrary to Defendant's assertion, Bross did not testify on direct examination about any prior conversations he had engaged in with other witnesses who testified at trial.*fn1 The Court is also unpersuaded by Defendant's apparent contention that Bross's acknowledgment during direct examination that he had participated in an investigation of Defendant, coupled with Bross's testimony regarding certain specific aspects of that investigation, combined to give defense counsel carte blanche to inquire into any subject related to the investigation of Defendant. The Government's direct examination of Bross was limited to two very specific aspects of the investigation, and the Court acted well within the discretion afforded to it under Fed.R.Evid. 611 and the relevant case law when it prohibited defense counsel from inquiring on cross-examination into additional aspects of the investigation that were far afield from those covered during direct examination.*fn2

  Defendant contends that his goal in pursuing the line of inquiry that the Court curtailed was to attack Dross's credibility by demonstrating that his prior Grand Jury testimony was inconsistent with the testimony of other witnesses at trial that he had interviewed during the course of the investigation. Defendant, citing United States v. Hale, 422 U.S. 171, 176 (1975), maintains that "it is axiomatic that prior inconsistent statements may be used to impeach the credibility of a witness." (Def's Mem of Law in Supp. of Motion for Judgment of Acquittal and New Trial at 6.) That principle is inapposite, however, because it relates only to prior statements made by a witness that are inconsistent with statements made by the same witness during trial. In this case, Defendant was trying to demonstrate that Bross's prior statements were inconsistent with the trial testimony of other witnesses.

  Finally, even if Defendant's rights under the Confrontation Clause had been violated by preclusion of the proposed cross-examination, the Court finds that the error would have been harmless. An error is considered to be harmless "when the Court is able to `declare a belief that it was harmless beyond a reasonable doubt.'" Concepcion v. United States, 181 F. Supp.2d 206, 223 (E.D.N.Y. 2002) (quoting Chapman v. California, 386 U.S. 18, 26 (1967)). In the context of a confrontation clause violation, a court applying the harmless error doctrine "should consider a `host of factors' that include `the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" United States v. Dhinsa, 243 F.3d 635, 650 (2d Cir. 2001) (quoting Delaware, 475 U.S. at 684). Based on the overall strength of the prosecution's case, as well as the ...


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