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.
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 ...