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. §§ 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
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