MEMORANDUM-DECISION AND ORDER*fn1
Defendant Kofi Yevakpor ("Defendant") was indicted on two (2) felony counts: (a) attempted importation of a controlled substance from Canada - namely heroin, a Schedule I controlled substance - in violation of 21 U.S.C. §§ 952, 960 & 963; and (b) possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841. See Indictment (Dkt. No. 5). The amount of heroin exceeded one (1) pound - actually weighing about 5.8 pounds. See id.; Complaint (Dkt. No. 1). Defendant had a trial by jury, and was convicted on all counts on February 22, 2006. See Dkt. Nos. 30, 32, 34, 36-37, 41.
Following the verdict, Defendant received extensions of time within which to file any post-trial motions. See Dkt. Nos. 47, 49. On May 26, 2006, Defendant filed a Motion for a New Trial, with supporting memorandum of law, pursuant to Federal Rule of Criminal Procedure 33. See Motion & Deft's Mem. of Law (Dkt. No. 62, Attachs. 1 & 2); FED. R. CRIM. P. 33. Defendant's main contention in the present Motion is that the Government's drug expert at trial, New York State Police Senior Investigator Samuel Mercado ("Mercado"), violated Defendant's due process rights by testifying beyond the permissible parameters set forth in this Court's Memorandum-Decision and Order ("MDO") of February 14, 2006 - in which this Court addressed Defendant's Motions in Limine. See Deft's Mem. of Law (Dkt. No. 2, Attach. 2). See also February 2006 MDO (Dkt. No. 31). Furthermore, Defendant argues that Mercado's testimony was unnecessary given the "expert testimony" presented through the border patrol agents as to smuggling techniques and interdiction -with Defendant suggesting that the Government used unrelated testimony from Mercado as "scotch tape... to seal the holes in the proof" and convict Defendant by use of stereotypes and guilt by association. See Deft's Mem. of Law (Dkt. No. 2, Attach. 2) at 9-11.
The Government has filed briefing in opposition to Defendant's Motion, with exhibits, arguing that Mercado's testimony clearly did not breach the restrictions imposed by this Court, and that, in any event, the Government did not heavily or solely rely on Mercado's testimony during closing arguments. See Govt's Mem. of Law & Exs. (Dkt. No. 65, Attachs. 1-3).
After review of the record, and the submissions of the parties, and for the reasons that follow in the Discussion, the Court finds that there are no grounds for granting Defendant a new trial. Defendant's Motion for a new trial is, therefore, denied.
Federal Rule of Criminal Procedure 33 provides, in relevant part: "(a) Defendant's Motion. Upon 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).
Indeed, Rule 33 by its terms gives the trial court "broad discretion... to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice."... The district court must strike a balance between weighing the evidence and credibility of witnesses and not "wholly usurp[ing]" the role of the jury....
United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001) (citing, inter alia, United States v. Sanchez, 969 F.2d 1409, 1413-14 (2d Cir. 1992)).
[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice.... The trial court must be satisfied that "competent, satisfactory and sufficient evidence" in the record supports the jury verdict.... The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation.... "There must be a real concern that an innocent person may have been convicted."... Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority "sparingly" and in "the most extraordinary circumstances."... Indeed, this standard has been described as a "heavy burden,"... and "[i]t is well-settled that motions for new trials are not favored and should be granted only with great caution."... "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice."
United States v. Schlesinger, 390 F. Supp. 2d 274, 275-76 (E.D.N.Y. 2005) (citing, inter alia, FED. R. CRIM. P. 33; Ferguson, 246 F.3d at 133-34; Sanchez, 969 F.2d at 1414; United States v. Costello, 255 F.2d 876, 879 (2d Cir. 1958)). See also ...