The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendant Moustapha Magassouba*fn1 ("Defendant" or "Magassouba") moves for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. For the reasons discussed herein, Defendant's motions are denied.
In a one-count indictment, Defendant was charged with conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin from in or about January 2003 to on or about August 12, 2003, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(a) & 846. On November 6, 2009, after a five-day jury trial, and approximately one day of deliberations, the jury returned a unanimous guilty verdict for the lesser included offense of participating in a conspiracy to distribute and possess with intent to distribute at least one hundred grams but less than one kilogram of heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) & 846.
At the close of the Government's evidence, Defendant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. (Trial Transcript (hereinafter "Tr.") at 1007-11, 1019-21, 1024-26.) Defendant argued that the evidence was insufficient for any rational jury to convict beyond a reasonable doubt, making some of the same arguments put forth in the instant motion. Defendant's motion at that time was denied. (Tr. at 1026.)
After the jury returned its verdict, Defendant renewed his motion for a judgment of acquittal. On November 20, 2009, Defendant submitted his memorandum of law in support of his motion to set aside the verdict ("Def. Mem."). On November 30, 2009, the Government submitted its memorandum of law in opposition to Defendant's motion to set aside the verdict ("Gov't Mem.").
Defendant argues first that the evidence at trial was insufficient for the jury to conclude beyond a reasonable doubt that Defendant joined a heroin conspiracy because the only evidence directly connecting Defendant to heroin was wiretap evidence consisting of intercepted telephone calls. Although the Government provided English translations of a number of foreign language calls, offered into evidence through the live testimony of two court interpreters, Defendant argues that the meaning of both the English translations of foreign language telephone calls and English language telephone calls was ambiguous because the parties to the calls never explicitly refer to narcotics. Defendant further argues that because the Government did not call a witness to interpret the coded language in the intercepted telephone calls and testify that the conversations related to heroin, the jury was left to speculate impermissibly as to the meaning of the intercepted telephone conversations.
Defendant also argues for a new trial based on three purported errors at trial. First, Defendant argues that the Court erred in admitting evidence related to three alleged members of the heroin conspiracy: Moussa Keita, Fanta Kaba and Mor Lo. Defendant argues that the Government failed to show any illicit connection between these three individuals and the Defendant. Second, Defendant argues that the Court erred in denying his request for a multiple conspiracies charge. Third, Defendant argues that the Court erred in admitting evidence related to cocaine transactions and that the probative value of the cocaine evidence was substantially outweighed by its prejudice to the Defendant. Each of Defendant's arguments is addressed below in turn.
II. Rule 29 Motion for Judgment of Acquittal
Rule 29 permits a defendant to move for a judgment of acquittal after a jury has returned a guilty verdict. Fed. R. Crim. P. 29(c). A defendant challenging the sufficiency of the evidence supporting a conviction "bears a heavy burden." United States v. Finley, 245 F.3d 199, 202 (2d Cir. 2001). The jury's guilty verdict must be upheld unless the court concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). In making this assessment, the court must view all the evidence in the light most favorable to the Government and draw all permissible inferences in the Government's favor. United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). The court must analyze each piece of evidence not in isolation but against the totality of the Government's case. Id. at 131.
In support of his Rule 29 motion, Defendant correctly points out that no government witness ever saw Defendant in possession of drugs, that no drugs or drug-related evidence were recovered from Defendant and that no government witness ever saw Defendant hand a package to or receive a package from another individual. (Def. Mem. at 4.) Defendant therefore argues that, in order to prove Defendant's involvement in the conspiracy, the Government relied solely on wiretap evidence. (Def. Mem. at 5.) Because the intercepted telephone calls admitted in evidence do not explicitly discuss narcotics or narcotics-related activities, Defendant argues that absent expert testimony interpreting any alleged "code" on the wiretaps, the Government's argument that the conversations were in code led the jury to make a jump in reasoning unsupported by the evidence, and argues that the verdict was based on impermissible jury speculation as to the meaning of the intercepted calls. (Def. Mem. at 5-6.)
A. The Government's Evidence at Trial DEA
Special Agent Mark Grey, a Government witness, testified that in early 2003, he and a team of agents were investigating a group of West African nationals suspected of distributing heroin in and around the Harlem neighborhood of Manhattan. Agent Grey testified that, under his supervision and that of his team, a cooperating confidential informant (the "CI"), obtained various amounts of heroin from an individual named Falou Ndiaye, located in a store in the vicinity of 115th Street and Eighth Avenue in Harlem, ranging in quantity from small samples to purchases of 28 grams and 56 grams, all of which tested positive for heroin (Tr. at 556-57, 559-62). By late April 2003, the DEA had obtained a court-ordered wiretap on a cellular telephone used by Ndiaye. (Tr. at 173:12-20.)
In the course of Agent Grey's testimony, and the testimony of six other law enforcement officers who personally participated in the investigation, the jury heard the witnesses' live testimony, consensually-recorded telephone conversations between the CI and Ndiaye, recordings of meetings made by a body wire worn by the CI, and intercepted telephone conversations from the court-ordered wiretap of a cellular telephone used by Ndiaye*fn2 and court-ordered wiretaps of three other targets of the investigation: Mor Lo, Abass Dumbuya, and Sidiki Mara. The jury also viewed a tape of video surveillance taken of a May 21, 2003 meeting between the CI, Falou Ndiaye and the Defendant.
The Government's evidence centered on Defendant's involvement in three heroin transactions that occurred on May 2, 9 and 21, 2003.
(i) May 2, 2003 Transaction
On May 2, 2003, Agent Grey instructed the CI to pretend to Falou Ndiaye that he was purchasing narcotics for buyers from Boston (Tr. 188:4-17) and directed the CI to obtain two samples of heroin and one sample of cocaine from Ndiaye (Tr. at 234:22-235:13). Commencing at 2:00 or 2:20pm on May 2, 2003, Agent Grey's team listened to a Kel transmitter worn by the CI,*fn3 conducted visual surveillance on the CI for approximately two hours (Tr. at 236:12-237: 10, 239:19-240:13) and also intercepted telephone conversations from the wiretap on Falou Ndiaye's telephone, some of which were played for the jury.
While Agent Grey and his team were conducting surveillance of a meeting between the CI and Ndiaye on May 2, 2003 (Tr. at 240:8-13), at 3:00pm Ndiaye called Defendant and the following exchange ensued.*fn4
Defendant: You wanna see me?
Ndiaye: Yeah, I want something man. You got it, the thing you, you, or, you got. . . you got it or not?
Ndiaye: [Stutters]. . . How long you can come back here?
Defendant: Uhm. . . like thirty minutes. I'll be there. Uhm. . .
Defendant: O.K., like how. . . how many you want?
Ndiaye: I don't know exactly. I may call my customer come from out of town. He wanna see first.
Defendant: O.K. Uhm. . . I leave here, I'ma come to you straight. (Government Exhibit ("GX") 100R-212) (italics indicate foreign language words in the African language Bambara).*fn5
At 3:28pm, Ndiaye called the Defendant and the Defendant assured Ndiaye that he was on his way. (GX 100R-220.) Approximately forty minutes later, at 4:09pm, Ndiaye called Defendant again and asked "how long it takes to get here man?" (GX 100R-230.) Defendant responded that he would be there in five minutes. (Id.) A short time after the 4:09pm call, the CI returned to Agent Grey's car and provided two samples of heroin and one sample of cocaine. (Tr. at 242:25-243:10.)
At 6:35pm, on an intercepted call between Ndiaye and the Defendant, Defendant told Ndiaye "[w]hen he calls you tell, try to ask him what number." (GX 100R-250.) At Agent Grey's instruction, the CI complained about the quality of the heroin samples on a call between the CI and Ndiaye at 6:37pm (Tr. at 245:13-246:13; GX 100R-251).
CI: Okay. Uh, I had 'em both checked man.
CI: The first, the first one. . . the first one . . .
CI: Right, the first one that you gave me. . .
CI: Was, was, was was better, was better than ...