Hon. HAROLD BAER, JR., District Judge
On October 21, 2008, a jury rendered a verdict that found Defendants Antonio Scott ("Scott") and O'Kene White ("White") guilty of robbery conspiracy, attempted robbery, attempted possession of marijuana with attempt to distribute, and using or carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a crime of violence or narcotics trafficking crime. Scott moves for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure ("Fed. R. Crim. P."). White moves for a judgment of acquittal pursuant to Rule 29(c) or, in the alternative, for a new trial pursuant to Fed. R. Crim. P. 33(b)(2). For the reasons set forth below, Scott's and White's motions are denied.
The reader's familiarity with the underlying facts of this case is assumed.*fn1 On September 2, 2008, a Grand Jury returned a five-count superseding indictment against Scott and White.*fn2
The superseding indictment charged Scott and White with: conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) (Count 1); attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) (Count 2); attempted possession with intent to distribute marijuana in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 3); and using or carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the offenses charged in Counts 1, 2 and 3 in violation of 18 U.S.C. § 924(c)(1)(A)(ii) & (iii) and 18 U.S.C. § 2 (Count 4).*fn3
The trial took place on October 14, 15, 17 and 20, 2008, with the jury retiring to deliberate during the afternoon of October 20. At the end of the day on October 21, 2008, the jury returned guilty verdicts against Scott and White on all four counts.
Fed. R. Crim. P. 29(c) permits a district court, in certain circumstances, to set aside a guilty verdict and enter an acquittal upon the defendant's motion. "[T]he 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 citation and quotation omitted). The court must not disturb the jury's verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
In Jackson, the Supreme Court articulated that
[t]his familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
Id. (emphasis in original).
The Second Circuit has consistently held that the court must "review challenges to the sufficiency of the evidence underlying a criminal conviction 'in the light most favorable to the government,' crediting 'every inference that could have been drawn in its favor.'" United States v. Downing, 297 F.3d 52, 56 (2d Cir. 2002) (quoting United States v. Diaz, 176 F.3d 52, 89 (2d Cir.), cert. denied, 528 U.S. 875 (1999)); see also United States v. Walker, 191 F.3d 326, 333 (2d Cir. 1999). The court must "review the evidence as a whole . . . and 'resolv[e] all issues of credibility in the government's favor.'" Downing, 297 F.3d at 56 (quoting United States v. Abelis, 146 F.3d 73, 80 (2d Cir.), cert. denied, 525 U.S. 1009 (1998), and citing United States v. Desimone, 119 F.3d 217, 223 (2d Cir.), cert. denied, 525 U.S. 874 (1998)).
Fed. R. Crim. P. 33 permits the district court to grant a defendant's motion for a new trial "if the interest of justice so requires." The standard applicable to a motion for a new trial is "strict." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995). While the district court has "broad discretion" to decide a Rule 33 motion, see id., "[g]enerally, a motion for a new trial should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice," United States v. Triumph Capital Group, Inc., 544 F.3d 149, 159 (2d Cir. 2008) (quotation marks and citations omitted). Unlike a motion for a judgment of acquittal, a motion for a new trial permits the court to weigh the evidence and evaluate the credibility of witnesses. See id. However, in so doing, the court "must strike a balance between weighing the evidence and credibility of witnesses and not 'wholly usurp[ing]' the role of the jury." Id. (quoting United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (alteration in original) (citation omitted)). The court must exercise its authority to grant a new trial pursuant to Rule 33 "sparingly and in the most extraordinary circumstances." Id. (quotation marks and citation omitted).
A. Interstate Commerce Element of Hobbs Act Robbery
1. Sufficiency of the Evidence
Defendants argue that the evidence at trial was insufficient to prove the interstate commerce element of the offenses in Counts 1 and 2, i.e., conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery.
The Hobbs Act provides, in pertinent part:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this ...