The opinion of the court was delivered by: John F. Keenan, United States District Judge
Defendant Victor Lorenzano moves for:
(i) a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure; and
(ii) a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
Lorenzano was charged by indictment with a total of ten counts. Count One charged him with participating in a conspiracy from at least in or about 1995 through in or about 2001 to commit armed robberies and attempted armed robberies of persons engaged in narcotics trafficking and/or commercial activities that affected interstate commerce, in violation of 18 U.S.C. § 1951. Counts Two, Three, and Five each charged particular Hobbs Act robberies, in violation of 18 U.S.C. §§ 1951 and 2. Counts Six, Seven, and Nine each charged him with using, carrying and brandishing a firearm during and in relation to particular robberies, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Count Ten charged Lorenzano with participating in a conspiracy from at least in or about 1995 through in or about late 2001 to distribute and possess with intent to distribute five kilograms and more of cocaine and one kilogram and more of heroin, in violation of 21 U.S.C. §§ 846, 812, 841(a)(1), and 841(b)(1)(A). Counts Eleven and Twelve each charged Lorenzano with money laundering, in violation of 18 U.S.C. §§ 1956(a) (1)(B)(i) and 2.
Trial against Lorenzano and a co-defendant Ramon Reyes began on June 1, 2005. On June 29, 2005, the jury convicted Lorenzano of all counts, except for Count Twelve, the second money laundering count. The co-defendant Ramon Reyes was acquitted by the jury.
The evidence against Lorenzano was overwhelming. It established that he was a long-time member of a vicious and violent armed robbery crew that targeted mainly drug dealers. From 1995 through 2001, the crew committed dozens of armed robberies in New York City. They stole cocaine and heroin worth millions of dollars using violence, intimidation, and torture to accomplish their ends.
Lorenzano was a main member of the crew and one its most dangerous members. During robberies, Lorenzano brandished loaded firearms, "locked down" victims, searched apartments, and pistol-whipped victims. When one victim was unwilling to disclose the whereabouts of a drug stash, he stabbed the victim in the leg with a large knife, causing the victim to bleed heavily. An accomplice had to fashion a tourniquet to stem the bleeding.
The evidence showed that Lorenzano participated in many robberies, attempted robberies, and burglaries. Four were specifically set forth in the indictment.
(1) The May 7, 1996 burglary of a narcotics stash apartment in the vicinity of 170th Street and Audubon Avenue in Manhattan.
Lorenzano was a lookout for the burglary. Three accomplices were arrested during this burglary.
(2) The October 30, 1998 armed robbery at a bakery wholesaler on East 180th Street in the Bronx. Lorenzano displayed a gun and stood guard over bakery workers during the robbery. He threatened to kill them if they tried to set off an alarm.
(3) The March 14, 2000 armed robbery in the Crystal House apartment building, located at Matthews and Lydig Avenues in the Bronx. This was the robbery in which Lorenzano stabbed a victim in the thigh with a large knife. (supra).
(4) The May 18, 2000 armed robbery of passengers inside a livery cab near 228th Street and Kingsbridge Avenue in the Bronx. Lorenzano and his accomplices stole over 30 kilograms of cocaine during this robbery. They then stole the cab and set it on fire.
There was also evidence of a fifth charged robbery in which the crew stole 40 kilograms of cocaine in or about early 2000 from individuals in an apartment at 177th Street and Amsterdam Avenue in Manhattan. Lorenzano was to participate in this robbery, but he arrived late. However, he received a share of the robbery proceeds.
The Government called twenty-three witnesses at trial. Five were long-time associates of Lorenzano who each participated in several robberies with him. There were also victims of Lorenzano's robberies, law enforcement officers who responded to robberies and collected crime scene evidence, an NYPD detective who took part in court-ordered searches of accomplices' residences and vehicles, and an ATF Special Agent who conducted surveillance of Lorenzano prior to his arrest. He testified about Lorenzano's post-arrest statements. There was a car dealership representative who provided documents related to a new vehicle that Lorenzano purchased with a large cash payment using robbery proceeds, and a witness who reviewed extensive phone records detailing connections between Lorenzano and his co-conspirators.
The Government also introduced many seized firearms and ammunition, including six firearms that were found at one of Lorenzano's prior residences, tools used during robberies which included radios, walkie-talkies, scanners, cable ties, handcuffs, a bulletproof vest, crowbars, and crime scene photographs. Evidence of fake identification of Lorenzano and seized notebooks reflecting disbursements of stolen drugs to Lorenzano and others following successful robberies were also introduced.
The Government argument that the motion is untimely is rejected and the Court will address the merits of the various parts of the motion.
There are two separate matters raised by this motion. First, Lorenzano claims that he was deprived of his right to be present during all material stages of his trial when the Court conducted interviews of a juror outside of his presence. He further claims he was denied effective assistance of counsel because his trial attorney allegedly failed to advise him of what happened during those interviews. (See Lorenzano Decl. Nov. 9, 2006.) Second, Lorenzano challenges the Court's jury instructions regarding the interstate ...