The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Defendant Corbin Douglas, Sr. was charged in a ten count Indictment. Defendant was charged with seven counts of distribution of a controlled substance (Counts 1 - 7) and three counts of possession of a controlled substance (Counts 8 - 10). On August 16, 2007, Defendant was convicted on all counts except for Count 7. Defendant now moves pursuant to Fed. R. Crim. P. 29 seeking a judgment of acquittal and pursuant to Fed. R. Crim. p. 33 seeking a new trial.
Defendant moves for judgment of acquittal pursuant to FED. R. CRIM. P. 29 asserting that the trial evidence was insufficient as a matter of law to support the jury's guilty verdict. See FED. R. CRIM. P. 29(c). On such motions, the Court must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
"[C]courts must be careful to avoid usurping the role of the jury when confronted with a motion for acquittal." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). In this regard, the Court must avoid substituting its own determination of the weight of the evidence presented and the reasonable inferences that may be drawn from that evidence. Id. "Indeed, it is the task of the jury, not the court, to choose among competing inferences that can be drawn from the evidence." Id. The Court must "credit[ ] every inference that the jury might have drawn in favor of the government," United States v. Temple, 447 F.3d 130, 136-37 (2d Cir. 2006), and resolve "all issues of credibility in favor of the jury's verdict." United States v. Desena, 260 F.3d 150, 154 (2d Cir. 2001); see also United States v. Florez, 447 F.3d 145, 154-155 (2d Cir. 2006)("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 competing inferences is for the jury, not a reviewing court."). The Court must "bear in mind that the jury's verdict may rest entirely on circumstantial evidence." United States v. Jackson, 335 F.3d at 180 (internal quotation marks and citation omitted).
Although a defendant's burden on such a motion is not insurmountable, a judgment of acquittal will only be granted if "no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Cassese, 428 F.3d 92, 98 (2d Cir. 2005). Put another way, a Rule 29 motion must be denied if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Temple, 447 F.3d at 136 (emphasis in original).
Rule 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). This rule 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 usurping the role of the jury.
Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, it is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment. An example of exceptional circumstances is where testimony is patently incredible or defies physical realities, although the district court's rejection of trial testimony by itself does not automatically permit Rule 33 relief.
The 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.
United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001)(internal quotation marks and citations omitted).
a. Count One - Distribution of Heroin
Defendant moves for relief on Count One essentially claiming that the government witnesses (admitted drug users) were unreliable and that the testimony of the three witnesses who testified regarding this Count was inconsistent. The issues raised by Defendant pertains primarily to issues of credibility. Such issues are within the province of the jury. For example, the jury was entitled to credit the testimony of Chelsea Richheimer who testified that, approximately one week before the death of Corbin Douglas, Jr., she went to Defendant's house to purchase heroin from Jimmy Loncor, Jimmy Loncor was not present at the time Chelsea Richheimer arrived at Defendant's home, Chelsea Richheimer inquired of Defendant whether he knew where she could find heroin, and Defendant responded by selling a bag of heroin to Chelsea Richheimer for $20.00. Tr. at 614-16. This testimony establishes the elements of the charged offense. Based on the Court's own familiarity with the trial and the testimony of Chelsea Ricchheimer, the Court finds that her testimony was not so untrustworthy as to warrant Rule 29 or Rule 33 relief.
b. Counts Two (Distribution of Morphine) and Three (Distribution of Morphine to a Minor)
Defendant moves to dismiss Counts Two and Three on the ground that there is insufficient evidence that he distributed the morphine. It is Defendant's contention that, because he, Kallin Richards, and Gillian Douglas used the drugs jointly with the intent to share it amongst themselves, they cannot be found guilty of possessing with the intent to distribute. See United States v. Swiderski, 548 F.2d 445, 447 (2d Cir. 1977).
At Defendant's request, the Court instructed the jury on the issue of joint possession. Defendant also argued this point to the jury. The jury apparently rejected Defendant's contention that the three individuals jointly obtained the morphine with the intent to share it amongst themselves. Although all three individuals were present when the drugs were obtained, there was a factual basis for the jury to reasonably conclude that the drugs were not obtained jointly and, therefore, that this case falls outside the holding in Swiderski. The jury could reasonably have come to this conclusion by rejecting Gillian Douglas' trial testimony and, instead, crediting her prior sworn testimony wherein she stated that Defendant stole 24 morphine pills from their mother and then gave two to Gillian and six to their cousin, Kallin Richards. Such a conclusion is supported by the trial testimony of Kallin Richards, who testified that it was Defendant who offered that "he can get some pills," Tr. at 760, that Richards had never taken morphine before, that Defendant obtained "a lot" of pills from his mother's dresser, Tr. at 760-62, and that Defendant "gave me some and he gave his sister some and the rest went in the pocket." Tr. at 762. Richards further testified that he obtained the morphine from Defendant. Tr. at 845.*fn1
Based on this testimony, the jury reasonably could have concluded that the drugs were obtained solely by Defendant (and, thus, that Richards, Gillian Douglas, and Defendant did not jointly acquire the morphine). Specifically, it could reasonably be concluded from this evidence that there was not a joint intent to acquire morphine, that Defendant acquired the morphine himself, that Defendant provided some of the morphine to Richards and Gillian Douglas, and that Defendant retained the remainder for his own personal use at a later time or, possibly, to distribute to others. Based on the quantity of the pills taken ("a lot"), the jury could reasonably have concluded that Defendant intended to distribute the pills to other persons. This evidence was further corroborated by the evidence before the jury that, in a prior proceeding, Defendant himself testified that he obtained the morphine from his mother. These fact distinguish this case from Swiderski and provided a basis upon which the jury could reasonably have concluded that Defendant distributed the morphine to Richards and his minor sister, Gillian Douglas. The Court, therefore, find no basis for post-trial relief on these Counts.
c. Counts Four (Distribution of Heroin, Morphine, Oxycodone, and Hydromorphone to a Minor) and Five (Distribution of Morphine and Hydromorphone Resulting in Death)
Defendant moves for a judgment of acquittal or a new trial on Counts Four and Five contending that there was "no evidence . . . presented either directly or circumstantially to establish how any controlled substance got into or on the child [Corbin Douglas, Jr.]." Def.'s Mem. of Law at 14. Defendant contends that the testimony of Kallin Richards was completely fabricated and that the prosecutor relied upon unsupported inferences, conjecture and speculation.
The prosecution responds that there was ample circumstantial evidence upon which the jury could reasonably have concluded beyond a reasonable doubt that Defendant distributed the drugs to his son. These facts include: (1) heroin, morphine, oxycodone, hydromorphone, and olanzapine were found in Corbin Douglas, Jr.'s bodily fluids and/or tissues; (2) Corbin Douglas, Jr. died as a result of an overdose of morphine; (3) there was overwhelming evidence that Defendant had access to, and routinely possessed, acquired and consumed morphine, oxycodone, and hydromorphone in and around the time of Corbin Douglas, Jr.'s death; (4) Defendant admitted that he was the primary caretaker of, and the only person who prepared the bottles for, Corbin Douglas, Jr.; (5) Defendant admitted that, during the days leading up to Corbin Douglas, Jr.'s death, only he and Elicia Longor fed the baby; (6) two days prior to Corbin Douglas, Jr.'s death, Defendant obtained a large quantity of morphine from his mother's house; and (7) Defendant admitted that, on the day of Corbin Douglas, Jr.'s death, he fed the baby bottles at 8:00 a.m., 10:00 a.m., and at noon. The government argues that, in addition to the foregoing evidence, Kallin Richards testified that, on Sunday morning, he observed Defendant pour something from a little white bottle (the same type of bottle in which the evidence demonstrated that the liquid morphine was kept) into Corbin Douglas, Jr.'s baby bottle, and that, at the hospital, Defendant stated to Elicia Longcor "I'm sorry, I'm sorry, I did this." The government further contends that there was circumstantial evidence of motive and opportunity - that Defendant was an unemployed drug user who was responsible for caring for a fourteen month old child and Defendant spent his days at home getting high on the very types of drugs found in the baby. The government further suggests that Corbin Douglas, Jr. suffered from a potentially painful fractured arm that may have given Defendant reason to try to "comfort" the baby.
Even excluding the testimony of Richards, the seven points set forth above, all of which are supported by the record evidence, provide a sufficient basis upon which a jury could reasonably conclude beyond a reasonable doubt that Defendant distributed the drugs to his son, which drugs resulted in the death of his son. Further supporting this conclusion is evidence suggesting that it was Defendant, and not Kallin Richards, who had ready access to, and was a ...