The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Defendant Dean Sacco moves pursuant to Fed. R. Crim. P. 29 and 33 seeking a judgment of acquittal or, in the alternative, a new trial. For the following reasons, the motions are DENIED.
After a jury trial, Defendant Dean Sacco was convicted of (1) buying a child to produce child pornography; (2) sex trafficking of a child; (3) production of child pornography; (4) traveling in interstate commerce to engage in sexual conduct with a minor; and (5) the possession of child pornography. Defendant now moves for relief pursuant to Fed. R. Crim. P. 29 and 33.
Rule 29 "imposes a heavy burden on the defendant, whose conviction must be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." U.S. v. Florez, 447 F.3d 145, 154 (2d Cir. 2006) (internal quotations and citation omitted). "In assessing sufficiency, [the Court is] 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." Id. "A court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999) (internal quotation marks omitted).
With respect to the motion pursuant to Rule 33, as the Second Circuit has explained:
Rule 33 itself states that "the court may grant a new trial to [a] defendant if the interests of justice so require." Fed. R. Crim. P. 33. The 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." United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The district court must strike a balance between weighing the evidence and credibility of witnesses and not "wholly usurp[ing]" the role of the jury. [United States v. Autori, 212 F.3d 105, 120 (2d Cir. 2000)]. Because the courts generally must defer to the jury's resolution of conflicting evidence and assessment of witness credibility, "[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." Sanchez, 969 F.2d at 1414. 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. Id.
The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. See Sanchez, 969 F.2d at 1414. The trial court must be satisfied that "competent, satisfactory and sufficient evidence" in the record supports the jury verdict. Id. (internal quotation marks omitted). The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. See id. "There must be a real concern that an innocent person may have been convicted." Id. 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." Sanchez, 969 F.2d at 1414.
a. Credibility of the Minor Victim
Defendant first contends that the testimony of the minor victim is incredible as a matter of law. The basis for Defendant's contention is that the minor victim suffered from certain emotional problems, was on certain medications, and is believed to have made certain inconsistent and erroneous statements.
"It is well established that '[b]ecause 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.'" United States v. Thompson, 528 F.3d 110, 121 (2d Cir. 2008) (quoting United States v. Ferguson, 246 F.3d 129, 133-34 (2d Cir. 2001) (internal quotation marks omitted)). Although Defendant points to some factors that might cause a jury to question a witnesses's veracity, they do no present exceptional circumstances that would permit the Court to intrude upon the jury's function of credibility assessment. There is no indication that the minor's testimony was perjurious, patently incredible, or defied physical realities. Id. The credibility issues raised in the instant motion were brought to the jury's attention and it ...