The opinion of the court was delivered by: Gershon, United States District Judge
On May 24, 2006, defendant Shahawar Matin Siraj was convicted by jury of four counts of conspiracy, arising from a plot to bomb the New York City subway station at 34th Street in Manhattan. Specifically, defendant was convicted of conspiring to: (1) damage or destroy by means of an explosive, any building or other real property used in interstate commerce, in violation of 18 U.S.C. §§ 844(i) and (n); (2) wreck, derail, set fire to, or disable a public transportation vehicle, in violation of 18 U.S.C. §§ 1993(a)(1) and (a)(8); (3) place a destructive device in a facility used in the operation of a public transportation vehicle without previously obtaining the permission of the public transportation provider, in violation of 18 U.S.C. §§ 1993(a)(3) and (a)(8); and (4) unlawfully deliver, place, discharge, or detonate an explosive device in a public transportation system with the intent to cause extensive destruction of such system, likely to result in major economic loss, in violation of 18 U.S.C. §§ 2332f(a)(2) and (a)(1)(B). Defendant now moves for a judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial in the interests of justice and on the ground of "newly discovered" evidence, pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
Defendant, whose sole theory of defense at trial was that he was entrapped by a confidential informant, Osama Eldawoody, argues that the court should enter a judgment of acquittal because the defense of entrapment was established as a matter of law. (Defendant does not argue that the evidence was insufficient with respect to the crimes charged.) Specifically, he argues that: (1) there was evidence of inducement, i.e., defendant's testimony that it was the confidential informant who talked him into taking steps to engage in violent conduct; (2) there was no evidence of defendant's predisposition in the government's direct case; and (3) the government's rebuttal evidence, i.e., testimony by the undercover officer, was insufficient to meet the government's burden of proving predisposition beyond a reasonable doubt.
Rule 29(a) provides that "the court on the defendant's motion must enter a judgment of acquittal on any offense for which the evidence is insufficient to sustain a conviction." FED. R. CRIM. P. 29(c). In cases where "the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Id. The defendant bears a heavy burden on a motion pursuant to Rule 29, and his conviction must be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Florez, 447 F.3d 145, 154 (2d Cir. 2006); United States v. Artuso, 618 F.2d 192, 195 (2d Cir. 1980). In deciding a Rule 29 motion, this court must view the evidence in its totality and in the light most favorable to the prosecution. Florez, 447 F.3d at 154; Artuso, 618 F.2d at 195.
A brief discussion of the entrapment defense is helpful to deciding defendant's motion. Entrapment is an affirmative defense that requires a defendant to make an initial showing that the government induced him to commit the crime charged. United States v. Brand, 467 F.3d 179, 189 (2d Cir. 2006). If a defendant does so, the burden then falls on the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id.; United States v. Bala, 236 F.3d 87, 94 (2d Cir. 2000) ("If a defendant presents credible evidence of government inducement, then the prosecutor must show predisposition beyond a reasonable doubt.").
The first element of the entrapment defense, namely, inducement, requires a defendant to show that it was the government, not he, that originated "the criminal design." Brand, 467 F.3d at 189 (citing Jacobson v. United States, 503 U.S. 540, 548 (1992)). A defendant's burden of proof on inducement should not be treated as a hollow requirement in those cases where the government has not conceded the issue. Brand, 467 F.3d at 190. A defendant cannot satisfy his burden on inducement simply by pointing to the government's use of an undercover agent or confidential informant. Id. To satisfy the "relatively slight" burden, the defendant must demonstrate that "the government initiated the crime." Id. Inducement by the government includes "soliciting, proposing, initiating, broaching or suggesting the commission of the offense charged." Id. That government agents merely afford opportunities or facilities for the commission of the offense does not constitute entrapment; entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials. Sherman v. United States, 356 U.S. 369, 372 (1958). Likewise, the mere fact of deceit will not defeat a prosecution; it is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. United States v. Russell, 411 U.S. 423, 436 (1973).
If a defendant meets his burden as to inducement, then the government must prove that defendant was predisposed beyond a reasonable doubt. Brand, 467 F.3d at 191. Predisposition may be shown by evidence of: (1) an existing course of criminal conduct similar to the crime for which the defendant is charged; (2) an already formed design on the part of the accused to commit the crime for which he is charged; or (3) a willingness to commit the crime for which he is charged as evidenced by the accused's ready response to the inducement. Id. (citing United States v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995)). With respect to a defendant's "ready response" to the inducement, a defendant is predisposed to commit a crime if he is "ready and willing" without persuasion to commit the crime charged and awaiting any propitious opportunity to do so. Id. at 194. In other words, as the Court stated in Sherman, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. at 372.
The government's evidence at defendant's lengthy trial included the testimony of a cooperatingwitness, James Elshafay; a confidential informant, Osama Eldawoody; and the New York City police detective supervising him, Steven Andrews; an undercover New York City police officer identified as Kamil Pasha; and many hours of recordings of conversations between the defendant, the cooperating witness, and the confidential informant. The evidence, viewed in the light most favorable to the prosecution, not only established all the elements of the crimes charged, but it also amply established that defendant was predisposed to commit the crimes charged beyond a reasonable doubt.
Before addressing the evidence of predisposition, I note that defendant's evidence of inducement at trial was scant. The only evidence defendant offered on this subject was his own testimony that the confidential informant constantly talked to him about the war in Iraq and inflamed his anger against the United States and its treatment of Muslims, for example, by showing him pictures of the prisoners at Abu Ghraib. It is questionable whether the statements relied upon by defendant are properly viewed as "soliciting, proposing, initiating, broaching or suggesting the commission of the offense charged." Moreover, defendant's testimony was rebutted by the undercover officer's testimony that defendant discussed the same types of issues before meeting the confidential informant. See Trial Tr. at 3269-73. Most importantly, the defendant's own testimony (as well as the testimony of the cooperating witness and the confidential informant and the recordings) established that it was the defendant who originated the plan to blow up the 34th Street subway station, that is, it was the defendant who originated "the criminal design" and not the government.*fn1
With respect to predisposition, the evidence in the government's direct case proved not only the existence of a course of conduct by defendant similar to the crimes of which defendant was charged, but it proved that, even if inducement had occurred, defendant was ready and willing to commit the crimes. The evidence of predisposition came, in the government's direct case, through the testimony of cooperating witness James Elshafay and of the confidential informant, through the recordings of defendant's statements, and, in the government's rebuttal case, through the testimony of the undercover officer, Kamil Pasha, regarding defendant's statements. To restate all the evidence introduced at trial relevant to predisposition would be impractical and is unnecessary; the following is sufficient to decide defendant's motion.
Elshafay testified that defendant made statements indicating his willingness to do a bombing in New York City as revenge for America's ill treatment of Muslims. Trial Tr. at 1973-76. Elshafay also testified that when he told defendant of his plan to blow up the bridges connecting to Staten Island, defendant stated he would see what he could do to get the plan going. Trial Tr. at 1976. Elshafay's testimony, which was not contradicted by defendant, established that defendant participated actively in analyzing and refining the plan Elshafay proposed. Elshafay's plan was eventually abandoned when, as defendant himself testified, defendant came up with the plan to blow up the 34th Street subway station. The recordings of defendant's statements regarding the 34th Street subway plan also showed that defendant was the principal designer of the plan. He surveyed the 34th Street subway station with Elshafay and the confidential informant, as well as on his own, in order to determine where best to place bombs and how to avoid detection. In addition, during the government's rebuttal case, the undercover officer testified that defendant made statements, before he met the confidential informant, that he supported and, under the right circumstances, was willing to engage in a revenge bombing. See, e.g., Trial Tr. at 3270-71. Unlike Jacobson, 503 U.S. at 551, where the Court held that the conduct in which the defendant expressed interest was insufficient to prove predisposition because the conduct was legal at the time, here the conduct defendant expressed interest in was illegal at the time he made the statements. Trial Tr. at 3522-23. Thus, defendant's argument that the undercover officer's testimony was, "for the most part," testimony about defendant's particular political point of view and did not include statements by defendant tending to show a willingness to engage in the type of conduct charged is incorrect.
In sum, the jury could have concluded that there was no evidence of inducement. However, even if it found inducement, there was ample evidence for a rational trier of fact to conclude beyond a reasonable doubt that defendant was predisposed to commit the crime. Accordingly, defendant's motion for entry of a judgment of acquittal pursuant to Rule 29 is denied.
A. Motion for a New Trial In the Interests of Justice
Defendant moves for a new trial pursuant to Rule 33 on four grounds: (1) lack of pre-trial discovery of the defendant's statements made to the undercover officer; (2) the admission of the testimony of the undercover officer and the government's arguments based on such testimony; (3) the court's response to the jury's question regarding the word "ready" in the jury charge; and (4) the improper admission of bad character evidence.
Rule 33 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). In other words, a court may set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice. United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). A trial court must exercise its Rule 33 authority sparingly and in only the most extraordinary circumstances. Id. at 134. "There must be a real concern that an innocent person may have been convicted." Id.
Defendant was not entitled to discovery of statements he made to undercover officer Kamil Pasha under Rule 16.
Rule 16(a)(1)(A) provides that "the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial." FED. R. CRIM. P. 16(a)(1)(A) (emphasis added). As the court in United States v. Viserto stated, "[a] non-recorded conversation [o]verheard by a Government agent whose presence is not known does not come within [this provision]." 596 F.2d 531, 538 (2d Cir. 1979) (emphasis added).*fn2 Defendant admitted he did not know the undercover officer was a government agent. Thus, according to the plain terms of the rule, defendant was not entitled to discovery of his statements.
Similarly, defendant was not entitled to any discovery pursuant to Rule 16(a)(1)(B)(i). ...