The opinion of the court was delivered by: LAWRENCE McKENNA, District Judge
On February 4, 2004, the above defendant was found guilty by a
jury on Count One of the redacted sixth superseding indictment
and not guilty on Count Two. Count One charged defendant and
others with conspiring, between about 1997 and about June of
2002, to distribute and to possess with intent to distribute 50
grams and more of cocaine base in a form commonly known as
"crack," in violation of 21 U.S.C. §§ 812, 841(a)(1) and
841(b)(1)(A). The jury found that the amount of cocaine involved
in the conspiracy was 50 grams or more of crack cocaine. Count
Two charged defendant with using and carrying a handgun during
and in relation to the conspiracy charged in Count One, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). Defendant moves, pursuant to Fed.R.Crim.P. 29, for judgment
of acquittal, or, in the alternative, pursuant to id. 33, for a
"In considering a motion for judgment of acquittal,
the court must view the evidence presented in the
light most favorable to the government." United
States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999)
(citations omitted). "`[T]he Court "must determine
whether upon the evidence, giving full play to the
right of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, a
reasonable mind might fairly conclude guilt beyond a
reasonable doubt."'" Id. (quoting United States v.
Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (quoting
Curley v. United States, 160 F.2d 229, 232 (D.C.
United States v. Castro, No. 00 Cr. 549, 2003 WL 23518114, at
*1 (S.D.N.Y. May 19, 2003).
Here, the evidence without counting the guilty plea
allocutions of co-defendants Gardner, Burl, Phillips and Murray,
see § 4 of this Memorandum and Order, infra was sufficient
to support the jury's verdict of guilt on Count One. The motion
for judgment of acquittal must be denied. "For it to succeed, the
Court would have to disregard the substance of the testimony of
the government's cooperating witness[es] as having been
untruthful, but that would impermissibly usurp the jury's
function." Id. (citing United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002)); see
also (Government's Letter Brief, March 3, 2005, at 7-8)
(marshalling evidence other than plea allocutions).
In the alternative, defendant seeks a new trial. "The ultimate
test on a Rule 33 motion is whether letting a guilty verdict
stand would be a manifest injustice." United States v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001).
A little more than a month after the jury's verdict, the
Supreme Court decided Crawford v. Washington, holding that
"[w]here testimonial evidence is at issue . . . the Sixth
Amendment [in the Confrontation Clause] demands what the common
law required: unavailability and a prior opportunity for
cross-examination." 541 U.S. 36, 68 (2004). "Testimonial"
evidence includes, at a minimum, "prior testimony at a
preliminary hearing, before a grand jury, or at a former trial;
and . . . police interrogations." Id. Defendant argues that
Crawford was violated in several ways.
At trial, on motion of the government, the Court admitted the
guilty plea allocutions of four co-defendants (redacted of
references to defendant, if any), instructing the jury that those
allocutions were to be considered only for the purpose of
determining whether the conspiracy charged in Count One existed,
and were not evidence of defendant's membership in the
conspiracy. See United States v. Williams, 927 F.2d 95, 98-99 (2d Cir.),
cert. denied, 502 U.S. 911 (1991). Crawford not having been
decided, defendant did not object. The government now, of course,
acknowledges that, under Crawford, admission of the allocutions
was error. (Gov't Letter Mem., March 3, 2005, at 6.)
Violations of Crawford, however, are (in the Second Circuit,
in any event) subject to harmless error analysis. United States
v. McClain, 377 F.3d 219, 222-23 (2d Cir. 2004). Admission of
the plea allocutions does not require a new trial "as long as
`the government can show beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." Id.
at 222 (quoting United States v. Casamento, 887 F.2d 1141, 1179
(2d Cir. 1989). Here, in view of all of the evidence other than
the plea allocutions, the government has made such a showing.
Defendant also assigns as error the admission into evidence of
recorded telephone conversations (Gov't Exs. 310 & 311) on the
part of a co-conspirator, Cleon Rowe, which tended to prove the
existence of the charged conspiracy. (The Court instructed the
jury that the transcripts did not mention defendant, that there
was no contention that defendant was one of the persons to whom
Rowe was speaking, and that the transcripts were admitted for the
limited purpose of showing the existence of the charged
conspiracy.) The recorded conversations were properly admissible under
Fed.R. Evid. 801(d)(2)(E), and do not implicate Crawford. While the
precise boundaries of the sort of testimonial statements within
the holding of Crawford have not been finally and fully
determined, the Second Circuit's understanding "[t]he [Supreme]
Court's brief discussion suggested . . . that the term was
intended to include sworn evidentiary statements, such as
affidavits, depositions, grand jury testimony, and trial
testimony, as well as unsworn declarations ...