The opinion of the court was delivered by: Richard M. Berman, U.S.D.J.
On June 22,2006 Ramon Dominguez ("Defendant" or "Dominguez") was convicted by a jury of one count of conspiracy to distribute or possess with intent to distribute five kilograms or more of cocaine. By motion, dated July 13,2006 ("Defendant's Motion"), Dominguez moved for a judgment of acquittal pursuant to Federal Rules of Criminal Procedure 29 ("Fed. R. Crim. P. 29" or "Rule 29") on the grounds of (i) insufficient evidence, alleging that the Government "failed to prove beyond a reasonable doubt that the (sic) Ramon Dominguez conspired or agreed with anyone other than a government agent or a government informant, to violate the law."
Defendant's Motion at 1; and (ii) denial by the Court of a fair trial: (a) by "allow[ing] inadmissible hearsay into evidence"; (b) through "a series of bad faith questions posed by the government during cross examination of the defendant [which] inevitably led the jury to conclude that Mr. Dominguez was a bad man who had committed heinous crimes including murder, murder for hire, robbery of drug dealers, robberies from stash pads, and membership in a criminal organization or crew."; (c)"during the government's cross-examination, the court gave no limiting instruction to the jury that it was the answers and not the questions that were evidence." Id. at 2. By response, dated July 28, 2006 ("Government's Response"), the Government opposed the Defendant's Motion. The Government argues that the Court should deny the Defendant's Rule 29 Motion because: (i) the Government proved convincingly that Dominguez conspired with individuals other than government informants or agents to commit the drug-robbery charged in the Indictment. The evidence supporting this result includes Dominguez's post-arrest confession, his recorded statements, and the testimony of four witnesses; i.e. Confidential Source No. 2 ("CS2" or "CS-2")' Special Agent Rene Tirado ("Tirado"), Special Agent Robert Barrett ("Barrett"), and Senior Investigator John O'Keefe ("O'Keefe"); and (ii) the Decendant received a fair trial: (a) the Court properly admitted testimony of law enforcement agents that was offered to explain their actions and to rebut defense counsel's argument that they had improperly targeted the Defendant; (b) the Government did not ask questions in bad faith during Dominguez's cross examination, and requested and obtained the court's specific approval regarding certain lines of questions; and (c) the Court properly instructecl the jury that a witness's answers, and not counsel's questions, constitute evidence and gave the jury this explicit instruction both at the start of and at the end of the trial. Government's Response at 2.
"If the jury has retunled a guilty verdict, the court may set aside the verdict and enter an acquittal," Fed. R. Crim. P. 29 (c), if the Court first determines that the evidence was insufficient to sustain a conviction. The Court is required to view the evidence "in the light most favorable to the government" drawing all reasonable inferences in the government's favor. United States v. Autouri, 212 F.3d 105, 114 (2d Cir. 2000). The Court may not assess the credibility of witnesses and "must uphold the jury's verdict if.. .'any rational trier of fact could have found the essential elements of the crirne beyond a reasonable doubt."' Id. (quoting Jackson v. Virginia, 443 U.S. 307, 3 19 (1979)). "In assessing sufficiency, we are obliged to view the evidence in its totality and in the light most favorable to the prosecution, mindful that the task of choosing among permissible c0mpetin.g inferences is for the jury, not a reviewing court." United States v. Florez, 447 F.3d 145, 154- 155 (2d Cir. 2006) (internal citation omitted).
(i) Sufficiency of the Evidence
"With respect to whether there is sufficient evidence of a defendant's intent to participate in the conspiracy with knowledge of its unlawful objectives, there are two separate inquiries: the prosecution must show a) that the defendant had some knowledge of the unlawful object of the conspiracy, anal b) that the defendant intended to engage in the unlawful scheme." United States v. Martinez-Sandoval, 2003 WL 1442454, *4 (S.D.N.Y. 2003).
During the trial, the Court heard testimony from Agent Rene Tirado, Agent Robert Barrett, Senior Investigator John O'Keefe, Confidential Source No. 2 and Defendant Ramon Dominguez. The Court finds that the testimonial and exhibit evidence in the record supports the jury verdict and that, viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in the Government's favor, any rational trier of fact could have found - - and, in this case, the jury did find - - the Defendant guilty of conspiracy to distribute or possess with intent to distribute at least five kilograms of cocaine beyond a reasonable doubt, under the (intent) standard set forth above. Specifically, the Cou:rt finds that the following evidence adduced at trial supports the jury verdict against Mr. Dominguez:
1) CS-2 testified that he (CS,-2), his cousin who was a confidential source for the government ("CS 1" or "CS-1 "), and the Defendant first met in August 2005 and discussed (on several occasions) stealing between 10- 15 kilos of cocaine. See Transcript dated June 20,2006 at 132- 135;
2) CS-2 testified that the Defendant stated to him: "Let me know as soon as you have the location and the address where the kilos would be, let me know as soon as you know so I can get my crew ready." Id. at 134;
3) CS-2 testified that he overheard the Defendant talking to his cousin (CS-1) on the telephone and he heard the Defendant ask "whether the kilos were ready, whether they had arrived. Id. at 137;
4) Recorded conversations among CS- 1, CS-2, and Dominguez were admitted into evidence which corroborated the testimony of CS-2 that Dominguez agreed to steal approximately fifteen kilograms of cocaine. (a(3X 109-T at 3 "You have to tell me where it is, because we have to see, we have to plan to see if1 have to break in, maybe we have to do something." and GX 104-T at 5 "It's 15 . . . supposedly, yes.");
5) Recorded conversations among CS- 1, CS-2, and Dominguez were admitted into evidence which corroborated the testi~nonyo f CS-2 that Dominguez agreed he would enlist the aid of others (his "crew") to rob thle cocaine. (See GX 104-T at 7 "I'll bring people and ...