United States District Court, S.D. New York
August 3, 2005.
UNITED STATES OF AMERICA,
ANGELO DIPIETRO ET. AL., Defendants.
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION & ORDER
After approximately ten weeks of trial and four days of
deliberations, a jury found the five defendants in this matter
guilty on July 12, 2005.*fn1 The defendants now move,
pursuant to Federal Rule of Criminal Procedure ("Fed.R. Crim.
P.") 29(c), for a post-conviction judgment of acquittal.
Additionally, defendant Angelo DiPietro moves, pursuant to
Fed.R.Crim.P. 33, for a new trial.*fn2
Rule 29(c) Motions
In support of their Rule 29(c) motions, the defendants make the
following arguments: Harold Bringman
Bringman's Rule 29 motion is based on five grounds: (1) as to
Counts Two and Five, the evidence was insufficient, both
factually and legally, to convict him; (2) the Court's
instruction on Count Ten was erroneous; (3) the evidence was
insufficient to sustain a conviction on Count Ten; (4) the
evidence was insufficient on Counts Fourteen and Fifteen; and (5)
bodywire evidence introduced against Bringman was not properly
Capalbo's Rule 29 motion is based on two contentions: (1) the
Court's jury instructions with respect to Count 10 were "fatally
flawed;" and (2) the evidence was insufficient to sustain a
conviction under the Hobbs Act (and the corresponding conspiracy
counts) because the Government failed to prove the existence of
interstate commerce, as is required by the statute. See Capalbo
July 25, 2005 Letter at 1-4.
DiPietro's Rule 29 motion is also based on the alleged
insufficiency of the evidence. Specifically, DiPietro contends
that "the jury was thus presented only with the testimony of
motivated cooperating witnesses and professionally biased
government agents, whose allegations were uncorroborated by physical evidence." DiPietro July 29, 2005
Letter at 2.
Genua joins in the submissions of his co-defendants, but does
not raise any independent arguments.
Pizzuti's Rule 29 motion is based on three arguments: (1) the
Court's jury instruction with respect to Count 10 was "patently
erroneous;" (2) the evidence was insufficient against Pizzuti on
Counts Two and Five;*fn3 and (3) there was no evidence that
the rifle involved in Count Six "was capable of firing a
projectile as required under 18 U.S.C. § 921." Pizzuti July 25,
2005 Letter at 1-2.
I. The Rule 29(c) Motions Are Denied
In deciding a Rule 29 motion, the court must resolve all
inferences in favor of the prosecution, and view the proof in the
light most favorable to the Government. See United States v.
Mariani, 725 F.2d 862, 865 (2d Cir. 1984). The court may not
assess witness credibility, resolve inconsistent testimony
against the verdict, or otherwise weigh the significance of the
evidence. See United States v. Autuori, 212 F.3d 105, 114 (2d
Cir. 2000). The court must grant the motion "if there is no evidence upon which a
reasonable mind might fairly conclude guilt beyond a reasonable
doubt." United States v. Taylor, 464 F.2d 240, 243 (2d Cir.
1972). Otherwise, "it must let the jury decide the matter." Id.
The Second Circuit has observed that "[t]hese strict rules are
necessary to avoid judicial usurpation of the jury function."
Mariani, 725 F.2d at 865.
Applying the Second Circuit's "strict rules" to the instant
Rule 29 applications, it is clear that the motions based on
insufficient evidence are without merit. When viewing the proof
in the light most favorable to the Government, the Court finds
that there was a significant amount of evidence in this case,
including witness testimony, documents, and intercepted phone
conversations, upon which a reasonable mind might fairly conclude
guilt beyond a reasonable doubt. Accordingly, the Rule 29(c)
motions based on insufficient evidence are denied.
The defendants also move for a post-conviction judgment of
acquittal under Rule 29(c) based on what they claim was the
Court's erroneous interpretation of Arthur Andersen LLP v.
United States, 125 S. Ct. 2129 (2005), in its jury instruction
on Count Ten. Yet again, the Court rejects these arguments. The
defendants' "interpretation" of Andersen, a case that, factually, is entirely distinct from
this case, is seriously wide of the mark. Further, to the extent
that Andersen imposed new requirements, i.e., the
foreseeability of an official proceeding, the Court's charge
Finally, Bringman's argument that body wires involving
cooperating witness Richard Signore were not properly
authenticated is belied by the record and is rejected.
II. The Rule 33 Motion For A New Trial Is Denied
In support of his Rule 33 motion, DiPietro claims that,
"viewing the record as a whole, [the Court] repeatedly undermined
his Constitutional rights, and denied him a fair trial and due
process of law." DiPietro July 29, 2005 Letter at 2. To bolster
this contention, DiPietro resubmits seven pages of previously
rejected argument interspersed with an occasional new
Fed.R.Crim.P. 33 permits a defendant to move for a new trial
"in the interest of justice." In contrast to a challenge to the
legal sufficiency of the evidence under Fed.R.Crim.P. 29, a
motion for a new trial under Rule 33 permits the court to evaluate the weight of the evidence and the
credibility of witnesses. United States v. Sanchez,
969 F.2d 1409, 1413 (2d Cir. 1992). However, only in "exceptional
circumstances" may the Court reject the jury's assessment of
witness credibility, such as where the testimony is "patently
incredible or defies physical realities." Id. at 1414. And even
when the court concludes that a government witness was not
credible, it should not grant a new trial unless it would be a
"manifest injustice" to let the verdict stand, i.e., where, in
light of the record as a whole, there is "a real concern that an
innocent person may have been convicted." Id.
Since the Court has already ruled on all of the
mistrial-related applications made by DiPietro, it will not
re-address them here. Some general observations in response to
DiPietro's claim that he "was denied a trial which even
approximated fairness," DiPietro July 29, 2005 Letter at 10,
however, are appropriate. The Court went to great lengths to
afford each of the defendants in this case a fair trial.
Cross-examinations were allowed to continue for days, parties
were given almost unlimited time and opportunity to make
objections, and argument, including re-argument, was virtually unfettered.*fn5 Despite all of that, Mr. Bondy
consistently and deliberately (apparently in the hopes of
procuring a mistrial) attempted to create a circus-like
atmosphere in the courtroom.*fn6 When his tactics were not
tolerated, Mr. Bondy moved for a mistrial; when the mistrial
applications were denied, Mr. Bondy claimed, and continues to
claim, that his client was denied a fair trial. In that sense,
Mr. Bondy's claim that "the entire proceeding bordered on surreal," DiPietro July 29, 2005 Letter at
10, is not altogether inaccurate.
Put simply, it would not be a "manifest injustice" to let the
verdict against DiPietro stand. The evidence upon which a
reasonable mind might (and did) fairly conclude guilt beyond a
reasonable doubt against DiPietro was abundant. Accordingly, the
motion for a new trial is denied. SO ORDERED.