The opinion of the court was delivered by: Denise Cote, District Judge
Defendant Joseph Ray Jordan ("Jordan") was indicted on February 14, 2008, and is charged in a twelve-count superseding indictment ("Indictment") filed on August 26, 2008. Trial on five of the counts, the counts related to witness tampering and transmitting threatening communications, began on October 6, 2008.*fn1 The jury reached its verdict on October 16, finding Jordan guilty on all five counts. Jordan has now moved pursuant to Rules 29 and 33, Fed. R. Crim. P, to set aside the verdict on these five counts and to dismiss the counts or, in the alternative, to grant a new trial. For the following reasons, the motion is denied.
The motion presents a myriad of issues, although it emphasizes three: that the Court deprived Jordan of his right to represent himself; that there was insufficient evidence to support the verdict on the three threat counts; and that defense counsel did not consult with Jordan sufficiently regarding the decision to testify at trial. This Opinion will therefore begin with a recitation of the defendant's communications with the Court on the issue of self-representation before summarizing the evidence at trial.
I. The Defendant's Representational History
Jordan was arrested on January 11 on a fugitive warrant from Connecticut, and was held in state custody until March 3, when he was brought into federal custody on the original indictment in this case, which had been filed on February 14. Fiona Doherty of the Federal Defenders was appointed on March 3 to represent Jordan. At a conference on May 8, Jordan was arraigned on the first superseding indictment and the parties requested a trial date in August. Trial was scheduled for August 4. On July 2, the Court held a conference with the parties to address the defendant's request for an adjournment of the trial date so that a competency examination of the defendant could be undertaken. With the parties' consent, the Court scheduled a suppression hearing for July 23 -- a date that was later adjourned to August 21 -- and adjourned the trial date to October 6. Ms. Doherty informed the Court that someone else from her office would have to take over the case because she would be starting maternity leave in September. The Court stated that it would "expect that person to take over immediately to join you today in representing the defendant." Ms. Doherty agreed.
Julia Gatto of the Federal Defenders joined the case, and within a couple of weeks, Sabrina Shroff from the same office joined as well. At the next conference, held on July 30, both Ms. Gatto and Ms. Shroff were present along with Ms. Doherty. At the suppression hearing held on August 21, all three defense attorneys appeared, and Ms. Doherty continued to work on the case until at least the week of September 15.
Ms. Gatto and Ms. Shroff continued their representation of Jordan through the end of the October 6 trial. After the verdict was rendered and the jurors excused, the Court told the parties that it wished to appoint new counsel for the defendant. It explained, "At the latter stages of this trial, as the record reflects, the defendant had several complaints about his representation. I don't find they were well founded. . . .
[B]ut I think it would be a burden on the defendant and defense counsel in these circumstances to continue with each other." CJA attorney Henry Steinglass was assigned to represent the defendant that same day, and the parties met the next day --with Ms. Gatto and Ms. Shroff present as well -- to address Mr. Steinglass's scheduling concerns and to settle on a schedule for the instant motion.
II. The Defendant's Communications with the Court
Jordan sent numerous letters directly to the Court over the course of this case, despite repeated instructions from the Court informing Jordan that so long as he was represented by counsel any communications with the Court would have to come through his attorneys. The defendant's letters are summarized here in the order in which they were received by this Court's Chambers.
The first set of letters arrived soon after the defendant's arraignment on the original indictment. One submission was dated March 7, 2008, and a second was dated March 10, 2008. They were received by the Court on March 12. Among other things, in these letters Jordan made several requests concerning his representation, the charges against him, discovery, and subpoenas he wished the Court to issue.*fn2
Next, on July 24, 2008, this Court's Chambers received a letter dated July 18 from the defendant.*fn3 In it, he stated that he had "begun the process of making the decision as to whether or not to represent myself at trial. I understand that such a motion must be made in a timely fashion. Therefore, do kindly inform me as to the deadline date -- if any -- for such a motion." Jordan also noted that he anticipated filing other motions in his case and requested a copy of "the Attorney's file." The July 24 letter was the subject of a conference held with the parties on July 30. At the conference, the Court informed the defendant that he has a right under the Constitution to represent himself, but that in all instances in which a defendant wishes to represent himself, the Court must first conduct "a complete and thorough inquiry to make sure that a defendant is waiving or giving up his right to counsel in a way that is knowing and voluntary and intelligent." The Court therefore instructed the defendant that, if he wishes to represent himself at trial, he should communicate that fact to one of his attorneys, who would then promptly notify the Court so that the necessary hearing could be scheduled and independent counsel could be appointed to advise the defendant with respect to that decision. The Court emphasized, however, that the trial date had already been moved once and "will not be moved again."
The next submission sent by Jordan to the Court was dated August 11, 2008, but postmarked August 20, received by this Court's Pro Se Office on August 21, and received by this Court's Chambers on August 22. The submission was addressed to the attention of "Administrative Justice," and it included a typewritten letter with a handwritten "addendum" attached. In this submission, Jordan complained principally that he did not have enough information about the charges against him and that he did not believe he or his attorneys could be adequately prepared for the October 6 trial date.
Jordan also sent a second letter dated August 11, 2008. This seventeen-page handwritten letter was received by this Court's Pro Se Office on August 25, and by this Court's Chambers on August 26.*fn4 In this letter, which was also addressed to the attention of "Administrative Justice," Jordan complained mainly about the limited access he had to voluminous discovery materials pertaining to Counts Four to Ten and his concern that he would not have time adequately to review the materials ahead of the October 6 trial date. Jordan also claimed to have received notice that the Federal Defenders would ask to withdraw from his case due to a conflict of interest. Finally, while not the focus of Jordan's letter, the issue of his possible self-representation is mentioned as well. He stated that although he had notified the Court that he had begun the process of deciding whether to represent himself, "I feel restricted in my ability to do so by the fact that I have not had adequate opportunity to review discovery materials." Additionally, Jordan wrote in a footnote, "Should I opt to represent myself at trial, my decision shall not be based on whether or not I am or am not satisfied with counsel's ability to do so."
The Court addressed the two letters from the defendant received on August 22 and August 26 at a conference held with the parties on August 26. The Court advised the defendant he should not be communicating with the Court ex parte, but should instead talk to his lawyers, who will then write to the Court or file motions on his behalf. Jordan was told that if he sent anything further to the Court, the Court would "send it back to him." The Court also addressed the defendant's references to the possibility of proceeding pro se, telling the defendant that it would not advise him of any deadline for that decision. The Court reiterated that the defendant "has certain rights in this regard, which, if he did make an application, I would discuss with him in great detail, but that application will not change the trial date should the defendant decide to proceed pro se." With regard to the defendant's reference to a possible conflict of interest for the Federal Defenders that would require their withdrawal from the case, the Court inquired of defense counsel whether they would indeed seek to be relieved. They responded that there was no conflict of interest and that their client "does understand that there is no conflict of interest." The Court also inquired about the defendant's references to the frequency of his meetings with counsel and the opportunities to review discovery material, and defense counsel represented that they spoke with Jordan after receiving a copy of his letter, "and he informed us that he is satisfied with the number of opportunities he's had to meet representatives from our office, specifically in the last couple of weeks."
Subsequently, the Court received a letter from the defendant dated August 27, 2008 but addressed to his attorney. The letter was attached to a cover sheet titled "Copy Ex Parte to the Court To Be Kept in Case File 08-CR-124 / This Is Not A Letter To The Judge." The submission was postmarked September 11, 2008, was received by this Court's Pro Se Office on September 12, and by this Court's Chambers on September 19 ("September 19 Letter"). The Court made a copy of the September 19 Letter, and by Order dated September 19, instructed the Pro Se Office to mail the September 19 Letter back to the defendant.*fn5
Jordan next sent two motions to the "U.S. District Court, Clerk," with a letter dated September 12, 2008 explaining, "Although I have not yet made a decision as to whether or not to represent myself at trial, given the time constraints I must file these papers at this time." These motions -- one titled "Defendant's Request for Discovery or, in the Alternative, Motion for Discovery," and the other "Ex Parte Motion for Order of Court To Secure Evidence for Trial" -- were received by this Court's Clerk's Office on September 15 and entered onto the docket report for this action on September 24. They were received by Chambers on the morning of September 25, after they had been docketed. The Court provided the parties with copies of the two motions at a conference held the morning of September 25, and it stated, "I am not further addressing these. As I advised the defendant if there are motions to be made or communications to be made on his behalf, it will be through counsel."
Another motion, this one dated September 20, 2008, was received by this Court's Pro Se Office on September 23, and by this Court's Chambers on October 1 ("October 1 Motion"). The October 1 Motion, titled "Ex Parte Notice to Court Regarding Right To Proceed Pro Se," was attached to a cover sheet directing the Clerk of Court to file "the enclosed notice regarding self-representation," and to "bring to the attention of the Court, at your earliest convenience." Jordan requested in the submission that "in advance of the announcement of his decision on whether or not he will represent himself at trial . . . that, should there be any question as to his mental competency to do so, the issue be addressed at this time." Jordan stated near the end of the letter that "[h]e has not yet made the decision [to represent himself] -- but he is leaning toward self-representation."
The Court provided counsel with copies of Jordan's October 1 Motion and scheduled a conference to address the submission. Later on October 1, the Court also received a letter from defense counsel dated October 1 requesting a status conference because Jordan had informed counsel that he wished to represent himself at trial. The conference was held on October 2. The Court asked defense counsel, "does the defendant, as you understand it right now, wish to represent himself at his trial?" Counsel stated that they had spoken to him briefly before the conference and that he told them "his mind was not made up." The Court then explained that it had prepared a five-page detailed allocution "to pursue with the defendant if and when he decides he would like to represent himself at trial." The Court further advised the defendant that if he wished to explore the issue further, he should discuss it with his counsel, and that, if the defendant wished, the Court "would be happy to appoint independent counsel to sit down and talk with him about that option. And the pros and cons of making that decision." The Court, however, reiterated that "our trial is going forward on Monday no matter what." It also explained the basis for its own perception that the defendant was "being very ably represented in this case by counsel." The Court then asked defense counsel to consult with Jordan once more as to "whether he wishes me to appoint independent counsel now to consult with him on this issue or whether he wants to proceed to trial pro se or not." After consulting with their client, counsel represented that "he does not feel the need to consult with independent Criminal Justice Act Counsel at this time." The Court inquired again whether the defendant was "asking me at this time to proceed pro se at trial." Counsel consulted with Jordan once more and reported that "Mr. Jordan informs us that he has not yet made that decision."
Four more motions, these dated October 1, 2008, were mailed by Jordan to the "Pro Se Clerk" on October 2, received by this Court's Pro Se Office on October 3, and entered onto the case's docket report on October 8. They were received by this Court's Chambers on October 9. The first of these motions was to sever Counts One to Three from Counts Eleven to Twelve; the second was a motion to dismiss; the third was a "renewed motion to suppress evidence"; and the fourth was titled a "Motion for Continuance and Notice to Court." In the last of these motions, Jordan, among other things, complained of problems with his representation and stated that "[h]e's placed in a Constitutionally unfair position: He must proceed to trial with current counsel, and suffer the consequences of a partially-prepared defense; . . . or represent himself without the opportunity to remedy first the significant shortcomings in trial preparation."
The Court addressed these four motions before the trial resumed on the morning of October 14.*fn6 The Court repeated its instructions to the defendant that he should "not send anything to the court, clerk of court, me. . . . You have lawyers. They are the ones who should communicate on your behalf." Defense counsel asked that the Court address on the record the defendant's claims concerning the adequacy of his representation and his communications with counsel. Defense counsel represented that they had visited the defendant multiple times before and during the trial, and had reviewed all relevant documents with him. The Court stated its view that the defendant "has been represented aggressively by defense counsel during the pretrial period." That representation "had a substantial effect on the shape of this trial. Counts were severed. Evidence was kept from being admitted in this trial. . . . The cross-examinations by defense counsel of the government's witnesses have been vigorous and sustained, showing a detailed knowledge of the evidentiary record, including all the documents."
With respect to the defendant's discussion about his ability to proceed pro se, the Court stated that "[a]t no time before the trial period did he ever communicate through counsel to me that he wished to proceed pro se. I advised him from the time this first arose that if he wanted to proceed pro se, it was his right, but I would be conducting an inquiry to make sure that he understood the ramifications of that decision. He never asked for that inquiry to be undertaken." The Court also referenced its repeated warnings to the defendant "from the beginning" that the trial date, which had already been moved once to accommodate defense counsel's request for a competency examination, would not be moved again. The Court advised the defendant that it would not interrupt the trial to conduct the necessary inquiry, and that "if the defendant wished to proceed pro se," the Court could have conducted the inquiry during the five-day break in the trial; in any event, the Court still did not "have a clear statement from the defendant that he wishes to proceed pro se in this trial."
Jordan's counsel handed the Court two additional letters from Jordan during the course of the trial on October 15; they were marked as Court Exhibits. The first of these letters, marked as Court Exhibit 6, was a four-page typed letter titled "Request To Plead No Contest," passed up to the Court just before the day's lunch break. In this letter, dated October 10, 2008, Jordan provided several reasons for wanting to plead no contest, including a poor relationship with his counsel and his belief that the stipulation his counsel wished that he sign to eliminate the need for his ex-wife's testimony contained several falsehoods. Before handing this letter up to the Court, Jordan's counsel informed the Court -- after consulting with Jordan -- that "he will stand by the stipulation. . . . [W]hat he tells me now is different than what is in the letter." The second letter was given to the Court during the charging conference, which the Court held with the parties during the lunch break on October 15, and was marked as Court Exhibit 8. In this thirteen-page handwritten letter, dated October 14, 2008, Jordan again complained principally of his counsel, stating, "Let it be hereby known . . . that I cannot proceed with current counsel -- . . . I am convinced that they dislike me, I am convinced that I cannot communicate with them, and I am convinced that I cannot now . . . willfully make any decisions in this case." Elsewhere in the letter, Jordan wrote, "I want to testify, but am not prepared."
At the end of the charging conference, the Court addressed the letter marked as Court Exhibit 6. It confirmed with defense counsel that they had advised their client that a plea of no contest in this district could only be entered with the consent of the Government. The Court then addressed Jordan's complaints about counsel, and noted that he seemed "very well advised about the case," and that independent counsel who had consulted with him earlier that day had also advised the Court that Jordan "thoroughly" understood his rights with respect to the decision to testify.*fn7 The Court further noted that the defendant "hasn't suggested that there is any evidentiary surprise that has occurred during the course of this trial." Moreover, "The letter identifies no line of cross that should have been undertaken that was not, no exhibit that should have been introduced that is not being introduced, no defense witness that should have been called that is not being called, no question that he put to counsel that has not been responded to." The Court also noted defense counsel's "vigorous" cross-examinations, and their thorough preparation and knowledge of the relevant documents and expected testimony.
The letter marked as Court Exhibit 8 was addressed by the Court the next day, after the verdict was read. Among other things, the Court noted that "at no time" had the defendant requested the opportunity to proceed pro se. Despite "frequent references in his communications to the fact that he was considering that decision," and the Court's explanations "on several occasions" [of] his right to take that step if he requests to do so, . . . no request was ever made." The Court, furthermore, found no basis from its observations for Jordan "to be feeling disappointed in the quality of his representation." Rather, the Court attributed the defendant's growing attacks on his counsel to "the weight of the government's evidence [at trial], which was overwhelming," and "the increasing likelihood that there would be a conviction here, that there was no real defense to the evidence which was in large part documentary and irrefutable." The defendant thus became "desperate, so he lashed out at his counsel, complained that he wanted to testify but was unready or unprepared to testify, unprepared to proceed with his trial despite months of preparation by both him and his attorneys for this trial." The Court also repeated an earlier request that defense counsel provide the Court with a history of their visitation and consultations with the defendant.
Finally, this Court's Chambers received a "Notice of Motion Regarding Self-Representation" from Jordan on October 17 ("October 17 Motion").*fn8 This submission -- addressed to the Pro Se Clerk -- was postmarked October 6, received by this Court's Pro Se Office on October 7, and entered on the docket report for this case on October 16, which was the day that the jury returned its verdict. The submission only came to the Court's attention on the morning of October 17, after it was docketed by the Clerk's Office. In the filing, Jordan gave "notice that he shall move the Court to allow him to represent himself at trial in this matter." He wrote that he "shall orally make the motion for self-representation."
The Court addressed the October 17 Motion at a conference held later that same day with the parties and Jordan's newly appointed counsel. After it gave counsel copies of this submission, the Court explained to incoming counsel that "[p]rior to trial and during trial, . . . the defendant either directly or through his attorney brought to my attention that he was considering making a request to represent himself, but he never actually made such a request."
The first three counts tried at the October 6 trial addressed the period from December 2007 through January 11, 2008. Count One charged that the defendant knowingly transmitted by email, facsimile, and through telephone calls threats to kidnap or injure a former girlfriend, Simone Thenault, or members of her family; Count Two charged that he knowingly threatened to assault and kidnap Thenault's aunt, Glenda Morean-Phillip, who at that time was an ambassador from the Republic of Trinidad and Tobago to the United Kingdom and thus an "internationally protected person" as that term is defined under the law; and Count Three charged that he knowingly and with intent to harass Thenault and place her in reasonable fear of serious bodily injury made telephone calls that caused Thenault emotional distress and placed her in reasonable fear of serious bodily injury. This third count was limited at trial to the time period from December 5, 2007 and up to and including December 17, 2007.
The last two charges, which were tried at the October 6 trial as Counts Four and Five of a redacted Indictment,*fn9 concerned the period from February through June 2008. They were that the defendant knowingly used intimidation and threats with the intent of influencing or preventing the testimony of Thenault and Morean-Phillip, respectively, in this criminal prosecution.
IV. The Evidence at Trial
The trial lasted from October 6 to October 16, with a five- day break in the middle for holidays and the weekend. At the end of proceedings on October 8, when the five-day break was to begin, the Government represented on the record that it expected to rest no later than lunchtime on October 15.*fn10 During the six days of trial, the Government called fifteen witnesses, including Thenault, Morean-Phillip, Thenault's mother Diane Dodson, Thenault's sister Kyiana Patrice Adams, Thenault's brother-in-law Roderick Adams, Thenault's former boyfriend David Weller, Jordan's friend Dr. Sebastian Mayer, and a notary named Frederick Ford, as well as several British and American law enforcement officers. Jordan did not put on a defense case.
Viewed in the light most favorable to the Government, the evidence presented at trial established the following. Jordan met Thenault at a bar in New York City in July 2007, and the two began to date shortly thereafter. Their relationship quickly became verbally and physically abusive. On one occasion, Jordan and Thenault were walking down a street when Jordan became agitated and directed Thenault to pick someone on the street for him to slash with the knife he carried. She refused. One night, Thenault attempted to lock herself in a bathroom to protect herself from Jordan's violence, but he got into the bathroom and pushed Thenault into the bathtub, injuring her back. On another occasion, the defendant was out with Thenault when he became agitated and began threatening strangers on the street with his knife. He then took Thenault to a hotel room, and proceeded to beat her and force her to have sex with him. In addition to the abuse he inflicted, Jordan instilled fear in Thenault by telling her, for instance, that he had killed someone in Mexico and that he had spent time in prison for trying to get his children from his ex-wife. He told her that if she reported the abuse to anyone, he would take Thenault and her family "off the face of the planet." Jordan's abuse and Thenault's fear escalated to the point that, on December 2, Thenault told her mother that Jordan was abusing her and that she believed that she would die if she did not leave by the next day. Early on the morning of December 3, Thenault fled from Jordan, together with her mother, first to a friend's home and then to her sister's house in Virginia.
While she was in Virginia, Thenault received numerous telephone calls on her cell phone from the defendant at all hours of the day and night. The defendant also discovered the Adamses' telephone number and repeatedly called their Virginia home, as well as calling Mr. Adams at work. Mr. Adams testified that Jordan stated to him during one of the calls, "I will have you wiped off the map." Ms. Dodson testified that in one of the calls she received on her cell phone while in Virginia before changing her number, Jordan said "he will kill and take me off the face of the earth." Also during this time, many strangers were calling the Adams house in response to advertisements for sex and for housing that Jordan had posted listing the Adamses' home telephone number on the website Craig's List. The Adamses changed their home telephone number as a result, but the defendant then began calling the new number. He also called Ms. Adams's cell phone. Thenault, Dodson, Ms. Adams, and Mr. Adams each testified that they were afraid of what the defendant might do to them, and they feared that he had already or would soon come to Virginia.*fn11 Officers who spoke with the victims during this time testified that they were visibly shaken and distressed.
While Thenault was in Virginia, Jordan told her, among other things, that he would hurt her ex-boyfriend David Weller.
Mr. Weller testified that during this time, he received telephone calls in which the caller threatened to hunt him down in the street and hire men to come get him, as well as calls from many strangers responding to Craig's List and print advertisements for sex and housing.
Also during this time, on December 7, 2007, Jordan registered the domain name SimoneThenault.com, and on the publicly available website he described his relationship with Thenault. Among other things, he wrote, "I hurt her -- both physically and emotionally," and after she left, "I reacted with anger. I said angry words I would never mean, but I frightened her . . . . I also said foolish things to some members of her family . . . people who have always treated me with kindness and respect." He added, "For the past few days, without sleep, I have been researching . . . domestic violence and anger management." The jury was shown printouts of the website.
As the threats and harassment persisted, Thenault continued to fear for her life and, in about the middle of December, she fled to London, to the official residence of her aunt, Ambassador Glenda Morean-Phillip. By around December 27, Jordan began calling Morean-Phillip's official residence, as well as her Embassy. When making these calls, Jordan purported to be --among other people -- an ex-boyfriend of Thenault's, David Weller. Upon being told of the content of one of the calls that her Embassy received, Morean-Phillip "immediately" called the police and, by December 31, had the telephone number of her official residence changed.
Morean-Phillip and Thenault then began receiving facsimiles at the Embassy, as well as e-mails and text messages, which contained threats to attack Morean-Phillip's official residence and to kidnap Thenault. Some of the facsimiles contained allegations of misconduct by Morean-Phillip's husband Oscar.*fn12
The communications -- which were shown to the jury -- placed Thenault and Morean-Phillip in such fear that they turned these messages over to law enforcement. Law enforcement witnesses from London testified to the victims' frightened demeanors.*fn13
Jordan was arrested by FBI agents on January 11, 2008.*fn14 He soon began to write letters in an effort to discourage or prevent Thenault and Morean-Phillip from testifying against him at trial. While Jordan sent some of these communications in his own name, he forged the names of others to several of them.*fn15
These communications included an affidavit purporting to be by his ex-wife, Robyn Foss ("Foss affidavit"),*fn16 stating that the years of her marriage to Jordan were "the happiest in [her] life," and seeking to explain the circumstances that led to Jordan's conviction for assaulting her and attempting to kidnap their children.*fn17 The affidavit also stated that she intended to testify at trial as to the defendant's good character. These assertions, as well as Ms. Foss's purported authorship of the affidavit and signature on it, were refuted by a testimonial stipulation of Ms. Foss, entered into by the Government, defense counsel, and Jordan himself.*fn18
Jordan also tried to send a letter to Thenault which purported to be from one of his sisters, Elyse Shoemaker.*fn19 This letter urged Thenault to "write to the judge and tell her that the allegation is a mistake," because she would be "put through so much stress" and "trauma" at trial, and her mother would also "be under awful pressure at trial." Another letter that was actually mailed to Thenault, which purported to be from Jordan's sister Carol Nestlebush and which was postmarked May 3,*fn20 stated that Jordan's defense team included private investigators who were being paid for "partly by his ex-wife Robyn," and advised Thenault that "giving up on what you two had and loosing [sic] someone who is probably meant for you is something that will probably not work out well for anyone." Among the letters that Jordan wrote to Thenault under his own name was one postmarked May 29 where he wrote, "Problem I see is you seem to be easily tricked or controlled by what others say or think. . . . No one respects or wants to be around a 'victim.' Even the cops are saying to me 'what were you doing f------ around with a (racial slur).' Typical cops."*fn21
The defendant also sought to interfere with MoreanPhillip's participation at trial by sending fabricated documents to Trinidad and Tobago government offices. These communications included a purported "press release" from "Jordan Family Media Relations." One such "press release" was sent in May 2008 to Trinidad's consulate in New York, which then forwarded copies to Trinidad's Minister of Foreign Affairs and to Morean-Phillip. The "press release" made defamatory allegations about MoreanPhillip's husband and predicted that those allegations would be explored at Jordan's impending trial, and it further stated that Morean-Phillip's transfer to the United States "has been delayed pending discussions to resolve the legal case without trial -- a trial that may prove a huge embarrassment for the government of Trinidad and Tobago."*fn22 A copy of the same document was sent to "High Commissioner Trinidad and Tobago Press Secretary" in London. Morean-Phillip testified to the emotional distress and professional humiliation that these communications caused.
In a pre-trial motion, the defense sought, among other things, to preclude evidence of Jordan's abusive relationship with his ex-wife, Ms. Foss. Jordan's counsel argued that the Court should limit any testimony by Ms. Foss to the single question of whether she wrote, signed, or otherwise adopted the Foss affidavit. At a pre-trial conference on September 25, the Court noted that any limitation on Ms. Foss's testimony would depend on the scope of cross-examination and whether it put her credibility in issue. The Court suggested that the parties consider entering into a stipulation to avoid Ms. Foss's live testimony entirely. By the next pre-trial conference, held on September 29, the parties had exchanged drafts of a proposed stipulation with respect to Ms. Foss's testimony. They handed their respective versions of the stipulation to the Court. The defendant's draft was marked as Court Exhibit 1, and the Government's draft was marked as Court Exhibit 2. The Court noted that the parties had "made a lot of progress," and that it seemed they would "be able to work through the remaining issues and that Ms. Foss will not need to be called as a witness. . . . I think this is very much in the defendant's interest."
In the second week of trial, on October 14, counsel for the defendant informed the Court that Jordan was "not inclined to sign the stipulation that would prevent Ms. Foss from taking the witness stand." The Court responded that it was "not entirely surprised. The defendant has a right to refuse to stipulate. He has a right to stipulate. . . . [H]is stipulation would have had the impact of severely restricting the evidence that defense counsel have argued could be harmful to the defendant in coming in." Ms. Foss therefore flew into town and arrived at the courthouse on October 15 prepared to testify. On the morning of October 15, defense counsel informed the Court that the defendant had signed the Foss stipulation.*fn23
The defendant moves pursuant to Rules 29 and 33, Fed. R. Crim. P., to set aside the verdict, dismiss the five counts on which the defendant was convicted, or for a new trial. Rule 29 permits a defendant to move for a judgment of acquittal on the basis of the insufficiency of the evidence. Fed. R. Crim. P. 29(c). A judgment of acquittal should only be entered if the court concludes that "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) (citation omitted). Rule 33 authorizes a district court to grant a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). A motion for a new trial may be granted only "sparingly and in the most extraordinary circumstances." United States v. Triumph Capital Group, Inc., 544 F.3d 149, 159 (2d Cir. 2008) ...