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May 5, 2005.


The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Defendant Ingrid Zapata ("Zapata") filed a motion for a new trial under Federal Rule of Criminal Procedure 33 ("Rule 33") on March 18, 2005, after being found guilty on February 17, 2005 of participating in a narcotics conspiracy in violation of 21 U.S.C. ยงยง 812, 841(a)(1), 841(b)(1)(A) and 846.*fn1 The Government opposed the motion by letter brief dated April 18, 2005.

The Court finds that the interests of justice would not be served by upsetting the jury verdict entered against Zapata. For the reasons stated herein, the Court denies Zapata's motion for a new trial under Rule 33. I. BACKGROUND*fn2

  Evidence at trial suggested that as early as February 2002, Nestor Fabian Londono ("Londono") was dealing in the traffic of narcotics. A number of associates assisted Londono in running his narcotics business: Steven Cuevas ("Cuevas") was recruited in the Summer of 2002 to work for Londono as his chauffeur; Pedro Duran Londono ("Duran") introduced Londono to a drug supplier in Colombia and accompanied Cuevas to Florida to pick up drugs; and Oscar Ceballos ("Ceballos") ran his own narcotics operation and lent Londono narcotics and money when Londono needed them. Londono's operation brought kilogram quantities of heroin into New York for distribution and sale.

  Zapata met Londono in October of 2002 when he began dating her cousin, Carolina Rios ("Rios"), also known as "Marilyn Ortega." Zapata lived with Rios at that time in Rios's apartment in Queens. Zapata and Rios would socialize at nightclubs and at Rios's apartment with Londono, Duran, Cuevas and Ceballos, with whom Zapata allegedly became romantically involved. On these social occasions, Londono would spend large amounts of cash, sometimes over a thousand dollars in an evening. Rios testified that she overheard Londono discuss "trabajo," or "work," with Duran and Cuevas while they were socializing in her apartment, and that she understood this phrase to refer to their drug business.

  Eventually, Londono asked Rios and Zapata to do "favors" for him. In one instance, he requested that Rios fly to Florida to meet a man with a suitcase and to hold the suitcase in a hotel in Florida where Cuevas and Duran would retrieve it from her. On another occasion, Londono asked Zapata to fly to Florida with several thousand dollars which she was to give to Cuevas. On November 26, 2002, Londono had Zapata and Rios wire approximately $2,000 in two payments of under $1,000 each to Cuevas and Duran in Florida. Although hard copies of the forms used to send these payments were not presented at trial, the Government produced documents from the central Western Union computer database (the "Western Union records") which were admitted, over Zapata's objection, for the limited purpose of showing that someone using the names "Ingrid Zapata" and "Marilyn Ortega" wired the money to Cuevas and Duran at the times and places indicated.

  Finally, on November 27, 2002, Londono asked Zapata and Rios to fly to Florida to give money to an individual there. Rios testified that Londono told her that the money was to pay for drugs that were being held by Londono's "only client." Londono rolled $8,500 in several eyeglass cases in Rios's purse and gave Zapata $8,000, which she put in her wallet. Londono bought them two plane tickets, one in Zapata's name and one in the name of Rios's alias, Marilyn Ortega. Zapata and Rios flew the money to Florida, and met with a gentleman named "El Gordo" at approximately ten o'clock in the evening on the street to give him the $16,500. Zapata and Rios flew back to New York City the next day.

  When Zapata and Rios landed at LaGuardia Airport, they were approached by federal agents and placed under arrest. Rios and Zapata were separated and seated in an empty passenger lounge. The agents questioned Rios, who identified herself as Marilyn Ortega and acknowledged that she and Zapata had just delivered money in Florida for a drug transaction, but did not question Zapata. In the holding cells at LaGuardia, Rios told Zapata "that the money was to buy an apartment." (Tr. at 590.) Zapata was questioned early the next morning at Drug Enforcement Agency ("DEA") headquarters by a Spanish-speaking officer. Zapata stated that she was given $8,000 by "Marilyn Ortega" to fly to Florida for the purpose of purchasing an apartment for Londono. Rios, when questioned at DEA headquarters, changed her story and also stated that the purpose of the trip was to purchase an apartment.

  Zapata maintained at trial that her understanding of the purpose of the trip was to purchase real estate and that she was unaware that Londono was a drug dealer. She said that she did not know that the purpose of her trips to Florida were related to the purchase or sale of narcotics. With respect to her first flight to Florida, she stated that she flew there primarily to retrieve her winter clothing from her mother's house, and did Londono the favor of flying the money he asked her to carry to Cuevas.

  On February 17, 2005, a jury found Zapata guilty of conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin. The jury found that one kilogram or more of heroin was involved in the conspiracy. Zapata has moved for the Court to overturn this verdict and to grant a new trial under Rule 33 in the interests of justice.


  Under Rule 33, a motion for a new trial may be granted "if the interests of justice so require." Fed.R.Crim.P. 33. Rule 33 "gives the trial court `broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.'" United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). A defendant who makes such a motion has the burden of proving the necessity for a new trial. See United States v. Ferguson, 49 F. Supp. 2d 321, 323 (S.D.N.Y. 1999) (citing United States v. Soblen, 203 F. Supp. 542 (S.D.N.Y. 1961)). In considering a Rule 33 motion, a district court must strike a balance between weighing the evidence and credibility of witnesses and not "wholly usurping" the role of the jury. United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000).

  Because a court generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, "[i]t is only where exceptional circumstances can be demonstrated" that a trial judge may intrude upon a jury's factual determinations. Sanchez, 969 F.2d at 1414. One example of an exceptional circumstance is when testimony is "patently incredible or defies physical realities," although a district court's rejection of particular trial testimony by itself does not automatically warrant a new trial under Rule 33. Ferguson, 246 F.3d at 134.

  Generally, a trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Federal Rule of Criminal Procedure 29 ("Rule 29"). For example, the Court is not required to view the evidence in the light most favorable to the Government, unlike its role under the standard governing a Rule 29 motion. See Ferguson, 49 F. Supp. 2d at 323 (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)). A trial court must be satisfied that "competent, satisfactory and sufficient evidence" in the record supports the jury verdict. Ferguson, 246 F.3d at 134. Nonetheless, a trial court must exercise its Rule 33 authority "sparingly" and in "the most extraordinary circumstances." Sanchez, 969 F.2d at 1414. The ultimate test on a Rule 33 motion is "whether letting a guilty verdict stand would be a manifest ...

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