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United States v. Donald

November 12, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge



On July 30, 2009, defendant, Albert Donald ("Donald"), was convicted after a jury trial of several narcotics offenses and a firearms offense. Donald was remanded after the verdict and sentencing is now pending. At the conclusion of the evidence, the Court reserved decision on defendant's Rule 29(a) motion for a judgment of acquittal as to Count 2.

After the verdict, Donald filed a motion for judgment of acquittal under Fed. R. Cr. P. 29(c) or in the alternative for a new trial under Rule 33 (Dkt. #95). The Government filed its opposition to the motion (Dkt. #98), as well as an affidavit (Dkt. #104) from Floretta Alston, a trial witness.

There are two grounds for defendant's motion. First, as to his Rule 29 motion, Donald contends that the evidence was insufficient to support the jury's verdict on all counts. Second, pursuant to Rule 33, Donald seeks a new trial on the grounds that one of the Government's witnesses, Floretta Alston, gave false testimony at trial. I deny the motion in both respects.


I. Motion for Judgment of Acquittal

I have reviewed Donald's motion papers as well as the Government's response together with my notes from the trial. The Court must view the evidence in the light most favorable to the Government when considering motions for judgment of acquittal. United States v. Pizzonia, 577 F.3d 455, 462 (2d Cir. 2009). See also United States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004) ("'It is well settled that a defendant seeking to overturn a conviction based upon insufficiency of the evidence bears a heavy burden'") (quoting United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir.) (citation and quotation marks omitted), cert. denied, 516 U.S. 1001 (1995)).

In this case, I believe as to all the counts, including Count 2, there was sufficient evidence for the jury to find guilt beyond a reasonable doubt. The challenges now raised by Donald relate to issues of credibility and the weight of the evidence. Such matters are peculiarly within the province of the jury and should not be disturbed by the Court on a Rule 29 motion. See United States v. Cote, 544 F.3d 88, 99 (2d Cir. 2008) ("it is well settled that 'Rule 29(c) does not provide the trial court with an opportunity to substitute its own determination of... the weight of the evidence and the reasonable inferences to be drawn for that of the jury'") (quoting United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (internal quotation marks omitted)). Many of the matters discussed by Donald in his pending motion were raised and argued before the jury for its consideration. The fact that the jury rejected those arguments does not warrant entry of a judgment of acquittal.

The evidence in this case was clearly sufficient for the jury to find that Donald engaged in a conspiracy with another to distribute drugs and that he distributed quantities of illegal narcotics on the dates charged in the indictment. The evidence likewise supports the jury's finding that, as charged in the indictment, Donald possessed a firearm in furtherance of a drug trafficking crime. In view of all the evidence, direct and circumstantial, and the inferences that could reasonably be drawn from such evidence, there was more than ample evidence upon which the jury could find guilt beyond a reasonable doubt. Donald's motion for a judgment of acquittal, therefore, is in all respects denied.

II. Motion for a New Trial

Donald claims that he is entitled to a new trial because one of the Government's witnesses, Floretta Alston, who happens to be Donald's wife, provided false testimony at the time of trial. Alston was called by the Government at trial and provided testimony about her activities on behalf of Donald relative to the possession and distribution of illegal drugs. Ms. Alston's account in some respects was corroborated by surveillance by law enforcement officers, as well as a videotape of some of the drug meetings.

In support of the motion, Donald has submitted declarations from two individuals, Sekine Anderson and defendant's brother, Farrah Donald. The gist of these declarations is that Floretta Alston made statements, apparently after the jury verdict, indicating that the drugs in question did not belong to the defendant Donald, as she had testified at trial, but to someone else. Alston allegedly also indicated that she had testified against Donald because she was angry at the defendant for his philandering. Dkt. #95-4, #95-5.

Alston, who was and is represented by counsel, has submitted a detailed affidavit (Dkt. #104) denying and refuting each of Anderson's and Farrah Donald's allegations concerning her post-trial statements. Alston denies that these conversations occurred, and she denies that she was ...

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