The opinion of the court was delivered by: John G. Koeltl, District Judge
On March 13, 2007, the jury in this case returned a verdict finding the defendant, Ramon Morales, guilty of both counts of a two-count indictment. Count One charged that from in or about 2003 up to and including April 2005, Morales conspired with others in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute one kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Count Two charged that on or about April 28, 2005 Morales possessed with intent to distribute 500 grams and more of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B).*fn1
Morales now moves for a judgment of acquittal notwithstanding the jury verdict pursuant to Federal Rule of Criminal Procedure 29(c)*fn2 and for a new trial pursuant to Rule 33. For the reasons that follow, the motions are denied.
Morales first contends that the evidence was insufficient to support the jury verdict and hence that the Court should enter a judgment of acquittal pursuant to Rule 29(c). A defendant "bears a very heavy burden" in challenging the sufficiency of the evidence. United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002); see also United States v. Macklin, 927 F.2d 1272, 1277 (2d Cir. 1991) (collecting Second Circuit cases). The defendant must show that "no rational trier of fact, viewing the evidence in the light most favorable to the government, could have found him guilty beyond a reasonable doubt of the essential elements of the crimes charged." Desena, 287 F.3d 170, 176-77 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
In considering the sufficiency of the evidence, the Court must "view the evidence presented in the light most favorable to the government, and . . . draw all reasonable inferences in its favor." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000); see also United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). The Court must analyze the pieces of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others," Guadagna, 183 F.3d at 130. "[T]o avoid usurping the role of the jury," the Court must "not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 114 (citation omitted). Thus, the Court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). "[T]he jury's verdict may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995); see also United States v. Aleskerova, 300 F.3d 286, 292-93 (2d Cir. 2002) (elements of conspiracy can be established by circumstantial evidence); Macklin, 927 F.2d at 1277 (same).
To the extent that Morales also moves for a new trial pursuant to Rule 33 based on an alleged insufficiency of the evidence, the standard is also an exacting one. A court will grant a new trial only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (citing United States v. Imran, 964 F.2d 1313, 1318 (2d Cir. 1992)). In evaluating the sufficiency of the evidence for purposes of Rule 33, the Court "must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). "There must be a real concern that an innocent person may have been convicted." Id. (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). While the Court has "broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29," it must nonetheless "exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" Id. (quoting Sanchez, 969 F.2d at 1414).
Morales argues that the evidence was insufficient to support his conviction for several reasons, including that it did not suggest he had "physical contact" with the heroin found in his car, that the Government did not call as a trial witness the confidential informant who placed the heroin under Morales' car seat prior to his arrest on April 28, 2005, and that the cooperating witnesses Lenny Jimenez and Edinson Belalcazar were admitted liars whose testimony was without corroboration. The evidence presented at trial and summarized below, however, was more than sufficient to support the jury's verdict.
Special Agent Richard Walsh of the Drug Enforcement Administration ("DEA") testified that immediately prior to Morales's arrest on April 28, 2005, Special Agent Walsh observed first Jaime Londono, and then a confidential informant who was a "trusted member" of Londono's organization, approach Morales while he sat in his car near his residence in the Bronx. (Tr. 182-84.) After the informant left Morales's car, he telephoned Special Agent Walsh. (Tr. 184, 202-03.) Under Special Agent Walsh's direction, a team of agents moved in and arrested Morales. (Tr. 184-85.) DEA Special Agent Marlow Luna testified that he searched Morales's car and found glassine envelopes inside a black pouch in the driver's side sun visor that contained what the parties stipulated was approximately 1.9 grams of heroin. (Tr. 408-09; Gov't Ex. ("GX") 904.) DEA Special Agent Matthew O'Brien testified that he found underneath the front passenger seat a large Ziploc bag containing smaller bags holding what the parties stipulated was approximately 498.4 grams of heroin. (Tr. 419-21; GX 904.)
Special Agent Walsh testified that after Morales was arrested on April 28, 2005, Morales consented to a search of his residence, where agents found approximately $40,000 in cash packaged in bundles with rubber bands and sealed inside a plastic bag. (Tr. 185-88.) Special Agent Luna testified that he participated in the search of Morales's apartment and that he found a bag containing an off-white powdery substance, which Special Agent Walsh identified as "cut," or a cutting agent. (Tr. 412-13, 186-89.) Special Agent Walsh also testified that after Morales's arrest on April 28, 2005, Morales said he had received heroin from a Columbian male named "Jimmy" on three or four occasions and that "Jimmy" had brought the money the agents found in Morales's apartment to Morales on the previous day. (Tr. 191-92.) The Government introduced into evidence the heroin and the "cut" seized from Morales's car and residence on April 28, 2005, as well as photos of the $40,000 cash. (GXs 101-106.)
The evidence showed that Morales had been arrested in possession of heroin a previous time on March 16, 2005. New York State Police Trooper Muharem Hasan testified that on that date, he and other officers were conducting surveillance near Morales's residence. (Tr. 397-98.) When Trooper Hasan approached Morales on the street with his police shield in view, Morales reached into his upper left jacket pocket. (Tr. 399.) Trooper Hasan searched the pocket and found several small packages or "decks" of heroin, and a more thorough search revealed more than $1,000 in cash concealed in Morales's socks and a black pouch containing additional decks of heroin in the sun visor of Morales's car. (Tr. ...