The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On July 31, 2009, defendant O'Neal Roberts moved, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a judgment of acquittal notwithstanding the jury verdict of guilty entered against him on June 30, 2009 on charges of cocaine importation conspiracy, cocaine importation, cocaine distribution conspiracy, and attempt to distribute cocaine. In the alternative, defendant moved to vacate the convictions and for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons set forth below, defendant's motions are denied in their entirety.
Defendant, a former American Airlines employee at John F. Kennedy airport in Queens, New York ("JFK"), was arrested on October 11, 2006, subsequent to a seizure of cocaine and a wiretap investigation by Immigration and Customs Enforcement ("ICE") agents. He was initially charged with possession of five kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). On June 5, 2009, defendant was arraigned on a superseding indictment charging additional counts of cocaine importation, cocaine distribution, conspiracy to distribute cocaine, conspiracy to import cocaine, conspiracy to launder money, and money laundering. A jury trial on these charges commenced on June 22, 2009.
A. Opening Statements, Testimony of Officer Michael Roessel, and First Request for Admission of Roberts' Statements
During its opening statement, the government indicated, among other things, that the jury would hear from co-conspirator Clive Beckford, who would describe the events surrounding the November 5, 2005 importation and seizure of approximately five kilograms of cocaine. (T. 291-292.) Defense counsel, in turn, stated that the government had relied on bad information provided by Beckford, portions of which did "not add up," which called his account of the November 5th seizure into question. (T. 294-296.) He further described the government's use of information provided by Beckford in its investigation as "reckless." (T. 293-294.)
The government's first witness, United States Customs and Border Protection ("CBP") Officer Michael Roessel, testified that, on November 5, 2005, he witnessed the unloading of American Airlines Flight 1384 from Barbados by a man operating a loader used to remove containers from the plane. (T. 299-307.) In one of these containers were several duct-taped bricks inside a bag, later determined to contain just over five kilograms of cocaine. (T. 302-06.) The defense then questioned Officer Roessel about other people besides the defendant who might have been working on the flight from which the drugs were seized. (T. 313, 319.)
The government then sought leave to introduce into evidence certain statements made by defendant during proffer sessions with the government conducted subsequent to his arrest.*fn1
(T. 321-22.) The meetings were conducted pursuant to a standard agreement with the government, which provided that the U.S. Attorney's Office was authorized to use any statements made by [the defendant] (B) as substantive evidence to cross-examine [the defendant], should [the defendant] testify, and (C) as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [the defendant] at any stage of a criminal prosecution. (Proffer Agreement dated 10/31/06 (Def.'s Br. Ex. A) ("Proffer Agmt.") ¶ 3 (the "waiver clause").). During these meetings, the defendant admitted, among other things, his involvement, as well as that of Beckford and other American Airlines employees, in the importation of narcotics. He specifically admitted his involvement in the thwarted November 5th importation.
The government argued that, through his opening statement and cross-examination of Officer Roessel, the defendant had implied that Beckford's account of what happened on the night of November 5, 2005 was false. (T. 321-22.) The government contended that this implication was contradicted by the defendant's prior statements, and that, pursuant to the court's June 16, 2009 ruling on the government's motion in limine, the government should be allowed to introduce the statements as evidence at trial.*fn2 (T. 321-22, 326-27.)
The court denied the government's request without prejudice, reasoning that it was premature based on the record before the court at that point. (T. 343.) However, the court noted that, during its opening statement and cross-examination of Officer Roessel, the defendant had posited the theory that "the government agents were reckless in their investigation of the case," and "were putting forth testimony from a cooperator whose information they did not corroborate." (T. 324.) The court further noted that "there are statements from the defendant about that event in question that in fact support the testimony of the government's witnesses" and contradict the "theory put forth before the jury by the defense based on the opening statement." (T. 331-32.) The court warned the defense that "should this . . . or some other theory emerge that is contrary to the admissions that were made by the defendant during the proffer statements," it would allow the government to renew its application for their admission.
B. Clive Beckford's Testimony and the Government's Second Request for Admission of Roberts's Statements
Cooperating accomplice Clive Beckford testified on behalf of the government about the drug smuggling operation and the roles that he, the defendant, and others played in the cocaine importation and distribution conspiracies. (T. 356-57.) Beckford indicated that he was an American Airlines employee at JFK, and the defendant used his position as crew chief at American Airlines to assign members of the conspiracy to offload drugs from certain flights.
(T. 357.) Beckford also testified that the defendant paid him between $2,000 and $10,000 on several occasions for his work in furthering the conspiracy and the two had conspired to put drug proceeds on a plane returning to Jamaica. (T. 369-71.)
With respect to the cocaine seizure, Beckford testified that, when he reported to work during the afternoon of November 5, 2005, he saw and spoke with the defendant at the beginning of his shift. (T. 375-76.) According to Beckford, the defendant told him that "something [was] coming off" a Barbados flight that evening, which Beckford understood to mean that drugs would be on that flight. (Tr. 376.) He further testified that he loaded and unloaded baggage from airplanes until his lunch break, and, towards the end of his lunch break, he saw and spoke with another co-conspirator, Victor Bourne, also an American Airlines employee at JFK.
(T. 377-78.) That evening, he and Bourne drove a tractor to the gate where the Barbados flight bearing the drugs was stationed, and observed that the gate was swarming with customs agents.
(T. 379.) Before driving away, he said he observed the defendant unloading the plane with a "Cochran," a vehicle used by airport employees to remove containers from planes. (T. 379-382.) Finally, he testified that, if all had gone as planned, the defendant would have given the drugs, which were hidden in a gym bag, to Beckford and Bourne to remove from the airport. (T. 382-83.)
On cross-examination, Beckford could not recall whether Bourne or the defendant ever used the word "drugs" in describing the contents of the November 5, 2005 Barbados flight.
(T. 409.) Defense counsel also questioned whether Beckford had actually been in Miami during the November 5, 2005 seizure. (T. 415.) Beckford adhered to his direct testimony, even when confronted with a Passenger Activity Report showing that he had been in Miami earlier on November 5th.*fn3 (T. 415-417.) Defense counsel also asked Beckford whether he was working or even scheduled to work on November 5, 2005. (T. 417.) Beckford responded that he was not scheduled to work but nonetheless was at the airport during the day. (T. 417-18.) He indicated that he never opened the smuggled bricks to determine their content. (Tr. 420.)
On re-direct examination, Beckford testified that Bourne and the defendant had told him that the brick objects that they were removing from the flights contained cocaine (T. 431-32.) Beckford also reasserted that he was at the JFK on November 5, 2005 when the seizure occurred.
Following Beckford's testimony, the government renewed its motion to introduce the defendant's proffer statements into evidence. The government contended that the defense counsel's questioning inferred, contrary to defendant's proffer statements, that Beckford had fabricated his testimony about the events of November 5 and had not been present at JFK to observe the seizure. (T. 444.)
The court agreed with the government that Beckford's cross-examination, especially concerning his whereabouts on November 5 and the production of the Passenger Activity Report, could cause the jury to infer that the defense had proof Beckford was not at JFK at the time of the seizure, contrary to defendant's admission that Beckford was there. (T. 445, 449.) However, in balancing the probative value of the statements against prejudice to the defendant, the court denied the motion, without prejudice, finding that the government could still argue at closing that, even if Beckford had been in Miami on November 5, 2005, he could have returned to JFK in time to observe the seizure. (T. 451-52.)
C. Third Request for Admission of Roberts's Proffer Statements and Testimony from Charles Schmidt and Special Agent Heather Shand O-Malley
After the court denied its second request for admission of the defendant's statements at the proffer sessions, the government moved for reconsideration of the issue. (T. 462.) The court adhered to its prior decision in denying the motion. (T. 462-63, 480.) However, defense counsel indicated that the government had provided him with additional evidence regarding Beckford's whereabouts on November 5, 2005, namely, American Airlines passenger flight records and records showing Beckford's swipe card access activity at JFK. (T. 464.) The defense argued that "[t]here's nothing to prove [Beckford] was there [at JFK] other than his own statements which have now been contradicted," since "obviously [he] wasn't there until 9:38 p.m. if he was there at all." (T. 470.)
After hearing further argument, the court ruled that, "[i]f defense counsel pursues this avenue and puts in other evidence pertaining to whether Beckford was there or not," it would allow the government to introduce the proffer statements on rebuttal. (T. 481.) The court reasoned the defense had called into question "whether or not Mr. Beckford ever spoke at all to Mr. Roberts and also whether or not he was . . . where he said he was in relation to the international flight . . . that contained the drugs" seized on November 5, 2005. (T. 473-74.) Defense counsel indicated that he wanted to proceed with admission of records relating to Beckford's travel activities on November 5, 2005 notwithstanding the court's ruling. (T. 481-82.) Accordingly, the court indicated held it would allow the government to introduce relevant portions of the proffer statements in issue. (T. 481-82.)
The government subsequently introduced testimony from American Airlines senior security representative Charles Schmidt, the custodian of the employee travel and swipe card access records. (T. 482.) Schmidt testified the documents showed that, on November 5, 2005, Beckford traveled on a flight from Kingston, Jamaica to Miami, Florida, and then on a flight from Miami to JFK, arriving at 9:38 p.m. (T. 491-94.) He further testified that, according to the access records, Beckford had not used his employee swipe card at JFK until shortly after midnight on November 6, 2005. (T. 495.) Schmidt indicated that it is impossible for an employee to go between a terminal where flights arrive and the secure ramp area where planes are unloaded without using a swipe card to gain access, unless he "piggybacks," that is, by following a person entering the secure area without swiping himself. (T. 496-97.) On cross-examination, defense counsel elicited testimony that Beckford did not arrive at JFK until 9:38 p.m. on November 5, 2005. Schmidt also ...