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United States District Court, S.D. New York

May 12, 2004.


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


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 fact that the aspect of Bross's potential testimony at issue was of marginal importance given the weight of the other evidence presented by the Government at trial, the Court believes beyond a reasonable doubt that even if the Court had erred, such error would have been harmless.

 Defendant's Contention That He Was Denied His Right To An Impartial Jury When the Court Declined to Excuse Juror No. 4 For Cause

  Defendant contends that his right to an impartial jury was violated when the Court declined to excuse Juror No. 4 for cause when, during the morning of the second day of testimony, Juror No. 4 informed the Court that he had neglected to disclose certain information that he believed might have been responsive to a question asked of him during voir dire. Juror No. 4 told the Court, in the presence of counsel and Defendant, that he had been in business for many years, and that during his experience as a businessperson, people have bounced checks on him in a manner which he would consider to be "kind of fraudulent." (Trial Tr. Vol. 2 at 162:13-18.) He said that he had recalled his experiences with bounced checks before going to sleep the night before, although he did not think that the information was "that relevant." He also said twice that he believed his prior experiences with check bouncing would not impinge on his ability to be fair. (Id. at 162:21-163:6.) When asked whether he could put such prior experiences out of his mind and make decisions in connection with Defendant's trial based on the evidence presented in the courtroom and the law according to the instructions to be given by the Court at the end of the trial, he replied, "I'm sure I can." (Id. at 163:7-12.)

  "A party moving for a new trial based on juror nondisclosure or misstatements" must satisfy a two-pronged test: 1) "the party must show that a `juror failed to answer honestly a material question on voir dire'"; and 2) "the party must show that `a correct response would have provided a valid basis for a challenge for cause.'" United States v. Green 285 F.3d 158, 170 (2d Cir. 2002) (quoting McDonough Power Equip., Inc. v. Greenwood 464 U.S. 548, 556 (1984)). Defendant has failed to satisfy either prong of the test.

  As to the first prong, Juror No. 4 did not fail to answer honestly a material question because the information he provided was not directly responsive to any of the questions asked of him by the Court during voir dire. The Court did ask questions about whether any of the prospective jurors had been victims of fraud. But those questions only called for information from those prospective jurors who had been victims, or had family members who were victims, of specific types of fraud, or who had experiences with fraud which they believed could impair their ability to be fair and impartial in performing their duties as a juror in the instant case. Check bouncing was not one of the categories of fraud inquired about by the Court; in that Juror No. 4 repeatedly stated that he did not believe that his prior experiences with check bouncing would negatively impact his ability to be fair and impartial, the information Juror No. 4 disclosed about his experiences with check bouncing was not responsive to any of the questions posed to him during voir dire. Thus, there was no failure to respond honestly to a material voir dire question.

  As to the second prong, the Sixth Amendment guarantees a criminal defendant a trial by an impartial jury. "`One touchstone of a fair trial is an impartial trier of fact — a jury capable and willing to decide the case solely on the evidence before it.'" United States v. Torres, 128 F.3d 38, 42 (2d Cir. 1997) (quoting McDonough, 464 U.S. at 554 (internal quotations omitted)). "`[I]n each case a broad discretion and duty reside in the court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality. . . .'" Torres, 128 F.3d at 43 (quoting Frazier v. United States, 335 U.S. 497, 511 (1948)). The trial judge, thus, "has the authority and responsibility, either sua sponte or upon counsel's motion, to dismiss prospective jurors for cause." Torres, 128 F.3d at 43 (emphasis in original).

  Challenges for cause have been divided into three categories — actual bias, implied bias and inferable bias. Id. Defendant contends that Juror No. 4 should have been excused on the basis of inferable bias.


Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias. There is no actual bias because there is no finding of partiality based upon either the juror's own admission or the judge's evaluation of the juror's demeanor and credibility following voir dire questioning as to bias. And there is no implied bias because the disclosed fact does not establish the kind of relationship between the juror and the parties or issues in the case that mandates the juror's excusal for cause.
Torres, 128 F.3d at 47 (emphasis in original). According to Defendant, the fact that Juror No. 4 was thinking of the check bouncing incidents just before going to bed the previous night was an indication "that the fraud was heavy on his mind." (Def's Mem. of Law in Supp. of Motion for Judgment of Acquittal and New Trial at 8.) Defendant further contends that, because fraud outside the circumstances of Defendant's case was weighing heavily on Juror No. 4's mind, the Court should have disqualified Juror No. 4 for cause in light of the fact that Defendant was charged with fraud in the instant case. (Id.)

  The Court did not abuse its discretion in deciding not to excuse Juror No. 4 for cause because his disclosure regarding his prior experiences with check bouncing did not indicate a risk of partiality significant enough to warrant disqualification. Juror No. 4's experiences with check bouncing involved a very different type of fraud than the fraudulent activities of which Defendant was accused, and of which Defendant has since been convicted, in the instant case. Further, upon disclosing the information to the Court, Juror No. 4 indicated repeatedly, first without any direct prompting and then again in response to pointed questions posed to him by the Court, that he did not believe such experiences would prevent him from being fair and impartial or prevent him in any way from making decisions solely in accordance with the evidence presented at trial and the law as explained to him by the Court. On the basis of these representations and the vast differences between check bouncing and the complicated type of advance fee fraud at issue in this case, the Court concluded then, and continues to believe now, that no sound basis exists for a finding that Juror No. 4 operated under any sort of bias, inferable or otherwise, that prevented him from engaging in his duties as a juror in a fair and impartial manner. The Court, therefore, acted properly in not excusing Juror No. 4 for cause.

 Defendant's Contention That the Court Erred in Admitting Agent Bross's Testimony as to Yinka Wilkerson's Non-Hearsay Statements Made Just Prior to Defendant's Arrest

  The Defendant contends that the Court erred in allowing Agent Bross to testify regarding statements made by Defendant's common-law wife Yinka Wilkerson in the moments just before Defendant was arrested. Bross testified that on the date of Defendant's arrest, he and several other agents knocked several times on the door of Defendant's residence, announcing "police" and "secret service" a number of times. (Trial Tr. Vol. 5 at 657:9-658:3.) Bross further testified that, after a "long pause" of about 3-4 minutes, Wilkerson answered the door. (Id. at 658:4-5; Trial Tr. Vol. 6 at 687:2-16.) According to Bross's testimony, he and the other agents inquired as to the whereabouts of Defendant, and Wilkerson replied that Adeniyi was traveling on business. (Id. at 658:12-13.) When the agents inquired further into the nature of Defendant's business travel, Wilkerson, according to Dross's testimony, paused, looked down, shrugged her shoulders, and said she did not know where Adeniyi was traveling since all he said was that he was traveling on business. (Id. at 658:15-21.) Bross further testified that the agents asked permission to enter and look for Defendant, and Wilkerson replied affirmatively. The agents then entered the home. (Id. at 658:22-25.) A short time later, according to Bross's testimony, several of the agents went downstairs into the basement, where they found Defendant hiding crouched or semi-crouched behind a couch in the darkness. (Id. 659:2-660:4.)

  Defendant argues that the Court should not have permitted Bross to testify as to the statements made by Wilkerson because it is improper for a third-party's statements to be used as evidence of consciousness of guilt of a defendant "absent some showing by the Government that the defendant arranged, orchestrated or authorized the third party to make the statement." (Def's Mem. of Law in Supp. of Motion for Judgment of Acquittal and New Trial at 9.) Defendant cites no authority whatsoever to support this contention. The case law clearly supports the admission of evidence of the actions or statements of third parties in order to demonstrate a Defendant's consciousness of guilt, see, e.g., United States v. Biaggi, 909 F.2d 662, 692 (2d Cir. 1990) (alluding to fact that Government had presented evidence of defendant's consciousness of guilt at trial consisting "primarily of the action of [defendant's] wife, shortly after the cooperating witness pled guilty, in withdrawing $3.5 million from a joint account she and her husband maintained and using it to purchase gold bars and other investments in her own name"), and Defendant has failed to point out, nor does the Court know of, any case which limits the admission of such evidence of third-party activity or statements to situations where the Government has provided affirmative evidence that the third-party's actions/statements occurred at the behest of, or were somehow sanctioned by, the defendant. Furthermore, a rational factfinder could conclude that Bross's testimony as to the delay between the agents' announcement of their affiliations and the opening of the door was indicative of an opportunity to orchestrate concealment of Defendant's whereabouts and, thus, constituted circumstantial evidence of orchestration.

  In this case, Bross's testimony regarding Wilkerson's statements clearly passes the relevancy test under Fed.R.Evid. 401. As stated by the Court on the record during trial, in light of the other evidence presented by the Government concerning the circumstances of Defendant's arrest (i.e., that the residence where Wilkerson made the statements was known to be the residence of both Wilkerson and Defendant, that there was an unusually long delay between the knocking at the door and Wilkerson's response, and that the law enforcement officers announced themselves as "police" and "secret service agents" prior to the delay, the door eventually being opened and the statements at issue being made), the statements made by Wilkerson were, indeed, relevant to the issue of consciousness of guilt and therefore were properly admitted by the Court.

  Finally, even if the testimony as to Wilkerson's statements had been admitted in error, the substantial weight of the other evidence presented by the Government at trial would preclude entering a judgment of acquittal pursuant to Rule 29, or setting aside the jury verdict and granting a new trial pursuant to Rule 33, on the basis of that error.

  Thus, having considered thoroughly all the arguments advanced in Defendant's motion papers as well as the trial record, the Court finds the properly-admitted evidence more than sufficient to support Defendant's conviction. The Court also concludes that there has been no manifest injustice warranting a new trial. CONCLUSION

  For all the foregoing reasons, Defendant's motion for a judgment of acquittal pursuant to Rule 29 or, in the alternative, for an order setting aside the jury verdict and granting a new trial pursuant to Rule 33, is denied in its entirety.


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