The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendants Aderemi J. Akefe and Na-Heem Tokumbo Alade each move for judgments of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, new trials pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Akefe also moves for reconsideration of this Court's order denying his oral motion for continued release on bail pending sentence or appeal. For the reasons discussed herein, each of Defendants' motions is denied.
In a two-count indictment, both Defendants were charged with conspiracy to distribute and possess with intent to distribute one kilogram and more of heroin from in or about 2005 to on or about February 18, 2009, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) & 846 (count one) and with conspiracy to import into the United States one kilogram and more of heroin from in or about 2005 to on or about February 18, 2009, in violation of 21 U.S.C. §§ 812, 952(a), 960(a)(1), 960(b)(1)(A) & 963. On March 18, 2010, after a seven-day jury trial, and approximately one day of deliberations, the jury returned unanimous guilty verdicts on each count as to each Defendant. The jury also unanimously answered the special interrogatory as to drug weight, finding that for each of the two charged conspiracies, each of the Defendants either had personal involvement with or it was reasonably foreseeable to that defendant that the conspiracy involved one kilogram and more of heroin.
At the close of the Government's evidence, each Defendant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. (Trial Transcript (hereinafter "Tr.") at 977-87, 1004-1010.) Akefe argued that the evidence was insufficient for any rational jury to convict beyond a reasonable doubt because, based on the evidence presented, it was just as plausible that Akefe acted without knowledge as that he acted with knowledge of the conspiracy. Akefe further argued that the Government's cooperating witness was not sufficiently credible for a reasonable juror to credit. (Id. at 977-78.) Alade, making some of the same arguments put forth in the instant motion, argued that the Government had offered insufficient evidence to show Alade knew of the existence of the alleged conspiracy and knowingly joined and participated in it. (Id. at 979-87, 1004-10.) Defendants' motions at that time were denied. (Id. at 1010.)
After the jury returned its verdict, Defendants renewed their motions for judgments of acquittal or, in the alternative, new trials. On April 1, 2010, Defendant Alade submitted his memorandum of law in support of his motion to vacate the jury's verdict under Fed. R. Crim. P. 29 or for a new trial under Fed. R. Crim. P. 33 ("Alade Mem."). On April 2, 2010, Defendant Akefe submitted his memorandum of law in support of his motion for a new trial pursuant to Fed. R. Crim. P. 33 ("Akefe Mem.") and a memorandum of law in support of his motion for reconsideration of detention pending sentence or appeal ("Akefe Bail Mem.").*fn1 On April 23, 2010, the Government submitted its memorandum of law in opposition to Defendants' motions for judgments of acquittal, new trials and bail pending sentence or appeal ("Gov't Mem."). On May 5, 2010, Defendant Alade submitted a memorandum of law in further support of his motion to vacate the jury's verdict or for a new trial ("Alade Reply Mem.").*fn2
II. THE GOVERNMENT'S EVIDENCE AT TRIAL
Much of the Government's evidence is not challenged in the instant motion. In particular, Defendants do not dispute that the Government's evidence was sufficient to show the existence of the charged conspiracies, nor do they dispute the sufficiency of the Government's evidence as it relates to the weight of heroin involved in the charged conspiracies. Rather, Alade argues that the Government's evidence was insufficient for a rational jury to find beyond a reasonable doubt that he acted knowingly and with intent to participate in the charged conspiracies.*fn3 Viewing the evidence in the light most favorable to the Government and drawing all permissible inferences in the Government's favor, United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999), the following facts were established at trial.
Hafrida Saad, a cooperating witness for the Government who was arrested at JFK airport on February 18, 2009 with one and a half kilos of heroin, testified that between 2005 and 2009 she had brought narcotics into the United States from India which she had obtained from her boyfriend Abraham Orji ("Abby")*fn4 and his friend Innocent (a/k/a "Inno"). (Tr. at 371-74, 390-91.) Both Abby and Inno are men of Nigerian ethnic origin, residing in India, and both speak English and Yoruba. (Id. at 374.) On each trip she travelled under the name "Shelena" and she was not advised by Abby or Innocent of the identity of the person to whom she would make delivery of the narcotics. (Id. at 372, 377.) Instead, Abby or Innocent would advise the person or persons arranging for the receipt of the narcotics of Saad's telephone number and she would be called on the telephone and receive directions about the specific time and place of delivery from a person or persons once she was safely in the United States. (See id. at 393, 400-01.) She testified that she was paid $1000 per each 100 grams she imported, which amounted to between $5,000 and $20,000 per trip, but was not paid in full immediately and sometimes would have to wait for payment until the drugs were sold. (Id. at 390-91.)
On a previous trip in 2007, Saad flew from India to New York with approximately two kilograms of narcotics in her suitcase, and then took a bus from the Port Authority Bus Terminal to Detroit. (Id. at 392.) In Detroit, she was contacted by an unknown person by telephone and she gave the drugs to an old man she did not know in a parking lot for which, at the time, she received about $10,000. (Id. at 393-94.) She returned to New York by bus and sent the $10,000 to Abby by Western Union and MoneyGram. (Id. at 394.) Per Innocent's instructions, she returned to Detroit a few days later to pick up the remainder of the payment, approximately $15,000 more. (Id. at 395.) Saad used some of this money to pay for the expenses of the trip and, at Innocent's instruction, gave the rest to a person in Brooklyn. (Id.)*fn5
Saad testified that in February 2009 Abby brought heroin to Saad at her residence, already packed in a suitcase, which he said he had picked up from Innocent. (Id. at 396.) Saad then took a flight from Bombay to New York and entered the country using a passport bearing the false name "Shelena." (Id. at 372, 396-97.) Upon her arrival in New York, she was arrested. (Id.)*fn6
Detective Francis Berberich along with Special Agents Jennifer Jordan and Michael Conlon arrived in the private screening area where Saad's luggage had been searched after the narcotics had been removed from the suitcase. (Id. at 236.) The total weight of the heroin recovered from Saad's suitcase was approximately 1552 grams. (Id. at 208; Government Exhibits ("GX") 5, 5S.) Saad agreed to cooperate and provided statements about her past criminal involvement to the Drug Enforcement Strike Force agents and participated in consensually recorded telephone calls and text messages first with Abby and Innocent and then with Defendants over the next three days. (Tr. at 239.)
B. Telephone Calls Recorded on February 18 and 19, 2009
After Saad's arrest, Detective Berberich recorded four telephone calls between Saad and Abby and Innocent, who acted as her handlers in India. (GXs 2, 4T-1, 4T-2, 4T-3, 4T-4.)*fn7 At the direction of law enforcement, on February 18, 2009, Saad placed a call to Inno at 10:09AM at a phone number in India, where Saad confirmed that she had arrived, told Inno she was at the train station and asked him what she should do. (GX 4T-1.)
COURIER: Oh, can you, can you tell, can you tell somebody to... Or can you tell somebody to pick it up or something.
INNO:... They cannot... They cannot. Let me try. They, they cannot.
INNO: [I/U]... Let me call them back, Eh?...
COURIER: Is it, is it the same person like the last time?
COURIER: The, the last time? Is it the same person?
INNO:... No, no, no... Not him.
COURIER: No? Oh. But the same place?
INNO: Ehuh. The same place. Yeah.
COURIER: Okay. Okay I call you back in ten minutes.
(GX 4T-1.)*fn8 Twenty-six minutes later, Saad again called Inno in India and he instructed her to call Abby. (GX 4T-2.) At 10:42AM, Saad placed a call to Abby at another phone number in India.
COURIER: [U/I] How, what should I do?
ABBY: Yeah, yeah. Y... you go to Detroit.
ABBY: [U/I]... today [U/I], you know.
COURIER: And who I'm gonna to meet with?
ABBY: When you get there they will call you. (GX 4T-3.)
Abby then instructed Saad to call him back in thirty minutes. (Id.) Law enforcement agents provided a cellular phone to Saad with the area code 718 (the "718 Number") and at 2:03PM on February 18, 2009, Saad used the 718 Number to call Abby. She explained to Abby that she had bought a new phone, and he could call her on the new number now. (GX 4T-4.) Saad told Abby that there was a bus leaving that night and she would "be there tomorrow. Later tomorrow, like afternoon or something." (Id.) Abby explained that he would give Saad's telephone number to the people she would be meeting in Detroit:
COURIER: So, uh. Who I'm going to meet there?
ABBY: Mmm, okay, cause uh, these people they want to have your number so they can call you.
ABBY: You know you know the way they behave. Now, they don't want to give...
ABBY: You know they... so but anyway, I will give this number now okay...
(Id.) Abby confirmed again that she would be meeting a different person than last time and then Saad asked where she should stay in Detroit:
COURIER: Okay,... Okay. Should I uh... When I get there should I uh, stay in the same hotel or what?
ABBY: Mmm, It's okay. [U/I]
COURIER: Or they, they will they will tell me tell you which hotel I should stay?
ABBY: Mmm, they will speak to you, but you can stay in the same place. But if, if anything just come up, I will let you know. (Id.) Finally, the following exchange occurred:
ABBY: You know, they,... I can't. I can't give you their number.
They don't want you to know them now. So they will call you. Alright. I'll give your number. They will call you.
COURIER: How about if I just go there? I, I, now I go there... I, I, if
I'm in Detroit now, how about if they don't call me?
ABBY: Oh god! They will now! They are waiting for the thing now. You know. They will call you. They have to. They're waiting already now.
COURIER: Alright. No problem. Okay. (Id.) The contents of the four calls recorded on February 18, 2009 are consistent with Saad's testimony about the modus operandi of this heroin conspiracy, namely that Saad never knew the identity or telephone number of the person or persons she would meet in order to make delivery of the heroin and that Abby and Inno would arrange for someone in the United States to call Saad on her cellular phone in order to set up a meeting.
On February 19, 2009, law enforcement agents recorded a series of six more calls between Saad and either Abby or Innocent that took place between 8:50PM and 10:20PM. In the first call, Saad, pretending to be in Detroit, told Innocent that no one had called her yet and Innocent reassured Saad, stating: "I will call just relax now"; "Just wait... go to your room"; and "He'll call you, he'll call you very soon. I just spoke to him." (GX 4T-7.) In the following calls from the evening of February 19, 2009, Saad aked Abby and Innocent to give her the telephone number of the person she was to meet because her cellular phone was running out of credits; neither Abby nor Innocent gave Saad a number she could call, instead repeating that someone would call her. (See GXs 4T-8, 4T-9, 4T-10, 4T-11, 4T-12; Tr. at 403-05.)
C. Text Messages Sent and Received on the Morning of February 20, 2009
On the afternoon and evening of February 19, 2009, Special Agent John Livanis kept the DEA cellular phone with the 718 Number, in order to monitor text messages and incoming calls on that phone. (Tr. at 341-42.) Agent Livanis testified that the 718 Number received a text message from a telephone number in India which was timestamped 2:19AM (on February 20, 2009) and read "Traveler Inn on Telegraph BTW Plymouth and West Chicago." (Id. at 348.)*fn9 The text message was received from one of the Indian telephone numbers used by Abby. (Compare id. at 348 and GX 4T-4.) The 718 Number received missed calls from two different telephone numbers bearing Michigan area codes between 9:00 and 10:00AM on the morning of February 20, 2009. (Tr. at 342, 349.) A number with a 248 area code (the "248 Number") called the 718 Number at 9:19AM and a number with a 313 area code (the "313 Number") called the 718 Number at 9:35AM. (Id. at 349.) In response to the two missed calls, at 10:02AM, Agent Livanis sent a text message which read "I going be at room 136 at 11:00. Don't have enof minute to talk" to both the 248 Number and the 313 Number. (Id. at 349, 360; see also GX 13C.) The text message did not provide the name of the hotel or its address.
Special Agent Michael Galu of the Detroit office of the Drug Enforcement Administration testified that he was kept informed of Saad's arrest and cooperation by agents in New York. (Tr. at 495.) After learning the location that Saad had been directed to by the text message from India, on February 19, 2009, Galu and other agents rented a room at the Travelers Motor Inn in Redford, Michigan on Telegraph Road between Plymouth Road and West Chicago Road. (Id. at 495-96.) Agent Galu informed the agents in New York which room his team had rented (number 136) and the agents commenced surveillance on that room at 6:00 or 7:00PM on the evening of February 19, 2009. (Id. at 496, 500, 678-79.) The Detroit agents terminated surveillance some time between 10:00 and 11:30PM that night and resumed the next morning at approximately 10:00AM. (Id. at 502-03; 678-79.) At 10:02AM on February 20, 2009, Agent Livanis sent the above-mentioned text ...