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June 16, 2005.

KOJO JOHNSON, Defendant.

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 new trial.*fn1


"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. Cir. 1947))).
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 ...

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