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September 26, 2005.


The opinion of the court was delivered by: LAURA SWAIN, District Judge


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 denied.


  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, ...

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