United States District Court, S.D. New York
September 26, 2005.
UNITED STATES OF AMERICA
NANCY FEARON-HALES, Defendant.
The opinion of the court was delivered by: LAURA SWAIN, District Judge
MEMORANDUM OPINION AND ORDER
On April 13, 2005, Defendant Nancy Fearon-Hales ("Defendant" or
"Fearon-Hales") was found guilty by a jury of one count of
conspiracy to import one and more kilograms of heroin into the
United States. At the close of all evidence on April 12, 2005,
Defendant moved pursuant to Federal Rule of Criminal Procedure 29
("Rule 29") for a judgment of acquittal. See Trial Tr. ("Tr.")
at 353.) The Court denied the motion on that date, on the basis
that "the evidence offered by the government and admitted for
consideration by the jury is evidence from which the jury could
reach a conclusion of guilt." (Id. at 353-54.) Defendant now
moves to set aside the jury's verdict and seeks a new trial
pursuant to Rule 33 of the Federal Rules of Criminal Procedure
("Rule 33"). The Court has considered carefully the Defendant's
motion, the Government's response, and the evidence presented at
trial and, for the reasons that follow, the motion is hereby
Fearon-Hales argues that "a rational trier of fact could not
convict [her] based on the evidence at trial." (Letter from B.
Alan Seidler to Judge Laura Taylor Swain, at 2 (May 11, 2005)
("Def.'s Mot.").) That is, the evidence introduced against her at
trial "was insufficient, and even if reviewed in a light most favorable to the Government, . . . it
falls short of the standard for reasonable doubt."*fn1
(Id. at 2-3 (citation omitted).) Specifically, Fearon-Hales
asserts that: (1) the testimony of her alleged co-conspirators
was of "no evidentiary value," particularly that of Alexander
Becker ("Becker"), who failed to positively identify Defendant as
the "Nancy" involved in the crime of which Defendant was
convicted, (2) Defendant "was never observed committing an
unlawful act," and (3) Defendant's voice was never identified by
an expert on tape recordings submitted into evidence. Id. at
4.) These arguments are without merit.
Rule 33 of the Federal Rules of Criminal Procedure provides in
pertinent part that, "[u]pon the Defendant's motion, the Court
may vacate any judgment and grant a new trial if the interest of
justice so requires." Fed.R.Crim.P. 33(a). "By its terms, Rule
33 confers broad discretion upon a trial court to set aside a
jury verdict and order a new trial to avert a perceived
miscarriage of justice." United States v. Sanchez,
969 F.2d 1409, 1413 (2d Cir. 1992). However, Defendant is correct in her
acknowledgment that, "in challenging the sufficiency of the
evidence to support [her] conviction, [s]he bears a heavy
burden." (Def.'s Mot. at 4.) Indeed, "[i]t is well settled that
motions for new trials are not favored and should be granted only
with great caution." United States v. Costello, 255 F.2d 876,
879 (2d Cir. 1958). The district court's examination of the
evidence must be objective, "tak[ing] into account all facts and
circumstances." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citation omitted). Furthermore, "[t]he
district court must strike a balance between weighing the
evidence and credibility of witnesses and not `wholly usurp[ing]
the role of the jury.'" Id. at 133 (quoting United States v.
Autuori, 212 F.3d 105, 120 (2d Cir. 2000)). "The ultimate test
on a Rule 33 motion is whether letting a guilty verdict stand
would be a manifest injustice." Id. at 134 (citing Sanchez,
969 F.2d at 1414).
The Court will now turn to Defendant's arguments.
Alleged Co-Conspirator Testimony
When examining witness testimony upon a Rule 33 motion, "the
courts generally must defer to the jury's resolution of
conflicting evidence and assessment of witness credibility."
Ferguson, 246 F.3d at 133. Nonetheless, "[t]o say that a trial
judge cannot make his or her own evaluation of the testimony of a
witness in the context of a Rule 33 motion is to ignore the
overwhelming weight of authority to the contrary." Sanchez,
969 F.2d at 1413. The court may disregard witness testimony where it
"is patently incredible or defies physical realities." Id. at
1414. Thus, "[i]t is only where exceptional circumstances can be
demonstrated that the trial judge may intrude upon the jury
function of credibility assessment." Id.; see also United
States v. Ramerez, 313 F. Supp. 2d 276, 280 (S.D.N.Y. 2004).
After an objective evaluation of the testimony at issue, the
Court finds that no exceptional circumstances exist such as to
justify intrusion upon the jury's assessment of the credibility
of Defendant's alleged co-conspirators' testimony.
During the course of the trial, the Government presented
testimony from two witnesses, Becker and Nak Kusi ("Kusi"), who
were the Defendant's alleged co-conspirators in the conspiracy to
import heroin into the United States. Both witnesses testified
before the jury, Becker in the courtroom, and Kusi via live video
conference from Germany. Becker and Kusi were asked whether the
Defendant was the woman named "Nancy" who, they had testified,
was involved with them in the conspiracy. (Tr. at 320 (Kusi); id. at 188
(Becker).) Kusi was able to positively identify Defendant. (Id.
at 321.) Becker, however, was not able to make a positive
identification of the Defendant (id. at 188-89), despite the
fact that he "testified he met the criminal `Nancy' on multiple
occasions during the course of the conspiracy, and under
circumstances where Becker had the time and opportunity to
observe Nancy carefully." (Def.'s Mot. at 4.) Defendant argues
that the jury should have dismissed Kusi's positive
identification because he "had the motive to fabricate his
testimony to protect his girlfriend, and co-conspirator, from
prosecution in Germany." (Id.) Defendant further argues that
"Kusi's testimony was otherwise so vague as to be of no
evidentiary value as to the guil[t] of Ms. Fearon-Hales." (Id.)
Defendant's challenge to the identification testimony is
insufficient to demonstrate insufficiency of the evidence or a
miscarriage of justice. While Becker did not identify the
defendant as the "Nancy" with whom he had dealt, Nak Kusi did,
and did so unequivocally. (See Tr. at 321.) Further, Kusi's
very specific testimony as to his dealings with the defendant was
not "so vague as to be of no evidentiary value," and was
corroborated by telephone and wire transfer records, as well as
hotel records. The jury heard Defendant's arguments as to Kusi's
alleged motive to testify falsely to protect his girlfriend and
the discrepancy between his testimony and that of Becker on the
identification issue, and was nonetheless persuaded by the
evidence, which was substantial, of Defendant's guilt. The jury
was specifically instructed to examine this accomplice witness's
testimony carefully and cautiously. (See id. at 417-25.) This
Court finds no extraordinary circumstances indicative of a
miscarriage of justice warranting vacatur of the verdict by
reason of the discrepancy in the identification testimony or
Kusi's alleged motive to falsify.
Observation of Commission of Unlawful Act
Fearon-Hales next asserts that she "was never observed
committing an unlawful act." (Def.'s Mot. at 4.) If by this assertion Defendant is arguing
that a conviction cannot be had unless there is direct testimony
by law enforcement or non-accomplice witnesses regarding personal
observation of clearly illegal conduct, the argument is
unfounded. Circumstantial evidence is equally as valuable as
direct evidence, and it is the law that "the jury's verdict may
be based entirely on circumstantial evidence." United States v.
Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citation omitted).
The circumstantial evidence in the instant case is overwhelming,
including Kusi's specific testimony as to his dealings with
Fearon-Hales and her instructions directing the commission of
illegal conduct, and is more than sufficient to support a
reasonable jury finding of guilt beyond a reasonable doubt of
participation in the charged conspiracy.
Accordingly, the Court denies Defendant's motion on the basis
that there was sufficient and competent evidence from which the
jury could have found beyond a reasonable doubt that Fearon-Hales
committed an unlawful act, namely, participating in a conspiracy
to import heroin into the United States.
Fearon-Hales lastly argues that "[n]o expert identified her
voice as being on the evidentiary taped conversations." (Def.'s
Mot. at 4.) Referring to the recorded conversations from the
wiretaps, Defendant claims that, without expert identification,
the recorded conversations were not sufficient evidence from
which the jury could make a competent determination that hers was
the voice that belonged to the female on the tape whom Kusi
addressed as "Auntie." However, under the Federal Rules of
Evidence, it is not necessary for an expert to authenticate or
identify a person's voice on a recording for it to be competent
evidence for the jury. See Fed.R.Evid. 901(b)(5)
("Identification of a voice, whether heard firsthand or through
mechanical or electronic transmission or recording, [may be made]
by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker."); United States v.
Sliker, 751 F.2d 477, 499-500 (2d Cir. 1984).
The Court finds that the jury was competent to make a
comparison between an authenticated recording of Fearon-Hales'
voice and the female's voice on the wiretaps. Therefore, the
Court denies Defendant's motion to the extent it is premised on
lack of expert witness testimony regarding the voice
This is not a case where, in order to find Fearon-Hales guilty,
"the jury must have engaged in false surmise and rank
speculation." United States v. Wiley, 846 F.2d 150, 155 (2d
Cir. 1988). The Court finds that the issues raised in Defendant's
motion are not, individually or collectively, indicative of any
exceptional circumstances warranting intrusion upon the jury
functions of credibility assessment and evaluation of the
evidence, much less of a miscarriage of justice. After
consideration of the matter in totality, as well as Defendant's
specific arguments, the Court finds that the guilty verdict
reached by the jury was well supported by competent,
satisfactory, and sufficient evidence properly admitted during
the course of a fair trial.
Accordingly Defendant's post-trial motion pursuant to Federal
Rule of Criminal Procedure 33 to vacate the verdict of the jury
and order a new trial is denied in its entirety.
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