The opinion of the court was delivered by: Leisure, District Judge
On April 20, 2006, following a one-week trial, defendants Musfafa Ozsusamlar ("Mustafa") and Osman Ozsusamlar ("Osman-) were convicted of one count of conspiracy to commit a murder-for-hire, in violation of 18 U.S.C. § 1958(b); one count of murder-for-hire, in violation of 18 U.S.C. §§ 1958, 2; and one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951. Defendant Osman now moves for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, in the alternative, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the following reasons, the motion is denied.
The defendants are father and son; Mustafa is the father and Osman is the son. The three-count indictment charged and the Government adduced evidence at trial, through the use of an undercover agent and a government informant, that Mustafa and Osman conspired to hire someone to collect a debt from, and subsequently murder, a husband and wife. Based on the Government's evidence, which included witness testimony and audiotape recordings and transcripts, the jury found the defendants guilty of murder-for-hire, conspiracy to commit murder-for-hire, and conspiracy to commit extortion.
Specifically, the evidence at trial established that Mustafa told a cooperating witness named Mohamed Mabrouk at the Metropolitan Correction Center (the "MCC")*fn1 that he sought assistance in locating someone who could kill a person (the "Victim") who owed him approximately 5283,000, offering to pay the killer ten percent of the money collected from the Victim. (Trial Tr. 142:7-14, 152:7-21.) Mabrouk indicated to Mustafa that he was interested in the job, and then reported this conversation to the Government. (Tr. 143:22-148:4.) Mabrouk, at the Government's behest, provided Mustafa with the telephone number for a Federal Bureau of Investigations ("FBI") agent who, using the name "Joe," posed as Mabrouk's associate by pretending to arrange for the collection of the debt and the Victim's murder. (Tr. 60:3-61:18, 160:1-161:11.) Mustafa passed on this information to his son, Osman (Gov't Exs. 13, 13T; Tr. 63:3-18), who then had a number of conversations with "Joe" regarding the scheme (Gov't Exs. 21-22, 21T, 22T-1, 22T-2). Finally, "Joe" called Osman to tell him that the job was done and that he had the money, and the two made arrangements to meet. (Gov't Exs. 23, 23T-2, 23T-3; Tr. 320:5-321:18; 324:9-325:15.) Osman was arrested when he arrived at the agreed-upon location that night (Tr. 326:17-19, 410:16-411:7), and subsequently made a number of admissions and false exculpatory statements (Tr. 411:9-414:6).
In support of his motion for a judgment of acquittal pursuant to Rule 29, defendant argues that the evidence was insufficient to support his conviction for conspiracy to commit murder-for-hire. In support of his motion for a new trial pursuant to Rule 33, defendant argues that the Court's admission of certain prior-act evidence deprived defendant of a fair trial. I. Standards for Rule 29 and Rule 33
When a defendant moves pursuant to Rule 29, the district court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotations omitted). The district court must draw all reasonable inferences in favor of the Government, see id., and must resolve all issues of credibility in favor of the jury's verdict, see United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed on the motion, a defendant must persuade the court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (McLaughlin, J.) (internal quotations omitted). A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir. 1990) (internal quotations omitted); see also United States v. Cervone, 907 F.2d 332, 343 (2d Cir. 1990); United States v. Tillem, 906 F.2d 814, 821 (2d Cir. 1990) (stating that motions challenging the sufficiency of the evidence for a conviction "rarely carry the day").
Rule 33 of the Federal Rules of Criminal Procedure provides 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). It confers broad discretion upon a trial court to set aside a jury verdict and order a new trial in order to avert a perceived miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). A defendant seeking a new trial bears the burden of demonstrating the "essential unfairness of the [original] trial." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). In adjudicating a Rule 33 motion, a court is entitled to weigh the evidence and, in so doing, to evaluate the credibility of witnesses. See Sanchez, 969 F.2d at 1413. A court, however, should exercise its discretion under Rule 33 sparingly, granting a new trial only in exceptional circumstances. See id. at 1414. Indeed, "motions for a new trial are disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
II. Defendant's Arguments
A. There Was Sufficient Evidence to Support Defendant's Conviction
Defendant first argues that there was insufficient evidence to support a reasonable inference that he knowingly and unlawfully joined a conspiracy with Mustafa to commit murder for hire. (Osuna Aff. 12.) According to defendant, the Government presented no evidence that the conspiracy was ever discussed between Mustafa and Osman. Therefore, defendant argues, the jury was led to speculate, ...