The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Defendant Hector Dominguez-Gabriel ("Dominguez-Gabriel") moves for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) and for a new trial pursuant to Fed. R. Crim P. 33. On December 14, 2010, Dominguez-Gabriel was convicted of 1) conspiring to commit money laundering, in violation 18 U.S.C. § 1956 ("Count One"), 2) conspiring to distribute cocaine or possess cocaine with the intent to distribute it, in violation of 21 U.S.C. § 846 ("Count 2") and 3) conspiring to distribute cocaine knowing or intending that it would be imported into the United States, or into waters within a distance of 12 miles from the United States, in violation of 21 U.S.C. § 963 ("Count Three"). The jury also found that both narcotics conspiracies involved over five kilograms of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 960(b)(1)(A).
On December 14, 2010, following the close of evidence but before submission to the jury, Dominguez-Gabriel moved this Court for a judgment of acquittal under Fed. R. Crim. P. 29(a). The Court denied the motion. In connection with the motion, Dominguez-Gabriel moved to exclude certain overt acts from the indictment. The Court granted this application with the Government's consent and ordered the redaction of a number of overt acts from the indictment on the grounds that the Government failed to produce any evidence during trial to support those specific allegations. Overt acts "a", "b", "c", "i", "j" and "k" in Count One and overt acts "a", "b", "c", "g", "h", "i", "j", "k", "q", "r" and "s" in Counts Two and Three were redacted from the indictment. The redacted indictment was provided to the jury during their deliberations.
Sixty days after verdict, on February 18, 2011, Dominguez-Gabriel renewed his motion for an order granting a judgment of acquittal pursuant to Fed. R. Crim P. 29(c) and made a motion for a new trial pursuant to Fed. R. Crim. P. 33. (Def. Memo at 1.) The Government submitted its opposition papers on March 3, 2011. Dominguez-Gabriel is scheduled to be sentenced on Wednesday, April 27, 2011.
For the following reasons Defendant's motions are denied.
II.Evidence Presented at Trial
Dominguez-Gabriel argues that the evidence produced by the Government at trial is "insufficient to sustain a conviction under the three counts of the indictment," and as such, asserts that the Court should grant his motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c), or in the alterative, grant his motion for a new trial pursuant to Fed. R. Crim. P. 33. (Def. Memo at 5.) As demonstrated below, the Government put forth substantial evidence corroborated by witness testimony, recorded telephone calls, and other records, such that a reasonable jury could have found Dominguez-Gabriel guilty on all three counts charged. Testimony of Manuel Alexander Araujo and Special Agent Gregory Tanella
Manuel Alexander Araujo ("Araujo" or "Alex"), one of the Government's two key cooperating witnesses, was arrested on February 20, 2007 with $1.5 million in narcotics proceeds in New York City. Drug Enforcement Agency ("DEA") agents had been monitoring Araujo's mobile phone, through a court ordered wiretap, from late 2006 up through his arrest in 2007. At trial, the Government presented the transcripts of ten recorded calls, ranging from December 2006 to February 21, 2007, between Araujo and Dominguez-Gabriel, in which the two discussed the purchase and sale of narcotics and their methods for laundering narcotics proceeds. Three of these calls, GX102T-9, GX102T-10 and GX102T-11, were recorded after Araujo had been arrested by the DEA and had agreed to serve as a cooperator. These calls corroborate Araujo's testimony at trial.
Specifically, during these calls, Araujo and Dominguez-Gabriel discussed 1) asking "the man" for a "[f]ifteen or twenty thousand [dollar advance], so [Araujo] can make some, some holes in two vehicles" to conceal cocaine during transport (GX102T-1 at 6); 2) whether Araujo should send Dominguez-Gabriel "another dude" to help Dominguez-Gabriel in the distribution of large amounts of cocaine in the United States (GX102T-3 at 13); 3) the price of cocaine by the kilogram (GX102T-3 at 49 (ALEX: And the other day I took something that was really fucking expensive. At nineteen five hundred and nineteen.)); 4) the arrest of Angel Sanchez, an associate of Araujo and the Defendant's, in Dobbs Ferry, New York with $1 million (GX102T-1 at 8-11; Tr. at 572)*fn1 ; 5) the names of various co-conspirators including "El Mamut," "El Ingeniero," Eddie, and Pablo (See GX102T-3, GX102T-6); 6) a drop-off of $35,000 cash, proceeds of narcotics supplied by Dominguez-Gabriel's associate El Ingeniero (GX102T-6 at 4 (HECTOR: I think that they're going to give you thirty-five. ALEX: Yeah, but the ages. The a.the number. HECTOR: No, no, no. No, no, no, no, no, it's money, it's money.)); 7) the methods for depositing the cash into various bank accounts in order to conceal its illicit source (GX102T-8 at 2 (HECTOR: Do you want me to send you the accounts where you're going to deposit?...Uh you don't care if it's all Bank of America?.ALEX: Because it's only thirty-five, which is nothing. That can be done all at once.) and 8) a larger drop-off of cash proceeds estimated to be approximately $1 million (GX102T-8 at 3 (HECTOR: [T]he other guy is going to call you on behalf of Guido, to see if they give you a million today.));
These conversations, some recorded almost two years before Dominguez-Gabriel's arrest, corroborate Araujo's testimony at trial regarding his involvement with the Defendant and their joint ventures in buying and selling cocaine and in laundering the proceeds of cocaine sales.
Araujo testified at trial that he was first introduced to Dominguez-Gabriel in "about the late '90s, the year 2000" through Abelardo and Israel Espinoza, friends of Dominguez-Gabriel's whom Araujo met in Miami, Florida. (Tr. at 409.) Araujo met with the Espinozas to discuss "specific prices.places and quantities" with respect to cocaine distribution. (Id. at 411.) Soon into their conversation, Araujo testified, Abelardo Espinoza told Araujo that "his best friend, his associate, was actually the supplier" and put Araujo on the phone with "a gentleman by the name of Hector." (Id.) Araujo testified that "Hector" was Hector Dominguez-Gabriel, the Defendant. (Id. at 412.) Araujo and Dominguez-Gabriel had their first meeting at the Hard Rock Cafe in Acapulco, Mexico about two months after this initial conversation. (Id. at 412-13.) According to Araujo, he and Dominguez-Gabriel talked about "quantities [of cocaine].prices. locations, drop offs and pick up points." (Id. at 414.)
Araujo testified that his first drug deal with Dominguez-Gabriel was in approximately 2001. (Id. at 415.) Araujo, Dominguez-Gabriel, and Dominguez-Gabriel's driver, "El Viejo", met at a hotel in Dallas, Texas to discuss transporting cocaine from Dallas to New York.
According to Araujo, the three discussed that El Viejo would "put the cocaine in the trunk next to the hazard lights in the back of the car.and drive up [to New York] according to the instructions." (Id. at 415-16.) Araujo would then meet El Viejo at a specific garage in New York and pick up the cocaine. (Id. at 416.) Araujo testified that Dominguez-Gabriel had received the cocaine from a man by the name of "El Mamut" who lived in Arizona. (Id.) According to Araujo, everything went according to plan and Araujo received approximately two kilograms of cocaine from El Viejo in New York. (Id. at 417.) Araujo paid El Viejo $17,500 per kilogram of cocaine and $2,000 for transporting the drugs to New York. (Id.)
Following the success of this first delivery, Araujo testified that he and Dominguez-Gabriel discussed their future plans, including trips in which Araujo would serve as the driver. (Id. at 418.) On another trip, Araujo first drove to Nogales, Mexico where he met with an associate of Dominguez-Gabriel's who placed a secret compartment in the gas tank of his vehicle to store cocaine during transport. (Id. at 419.) This is the same type of compartment referenced by Araujo in his 2006 recorded conversation with Dominguez-Gabriel. (GX102T-1 at 6.) After the compartment was installed, Araujo waited for about a week in Phoenix, Arizona for a delivery of cocaine from El Mamut. Once Araujo received the cocaine, he drove it to Baltimore, Maryland. (Id. at 419, 421.) All together, Araujo testified that he participated in about a "dozen, a dozen and a half" trips with Dominguez-Gabriel in the early years of the 2000s. (Id. at 423.) In total, Araujo testified that he picked up between 50 and 60 kilograms of cocaine from Dominguez-Gabriel and El Mamut for delivery to Baltimore and New York. (Id.)
Araujo testified that in approximately 2002, he traveled to Guadalajara, Mexico "at the behest of Hector to meet an associate called 'El Ingeniero.'" (Id. at 424.) Dominguez-Gabriel told Araujo that he wanted him to meet El Ingeniero because "he was a high-ranking member of a cartel and .a good drug supplier." (Id. at 425.) The day after this meeting, Araujo and Dominguez-Gabriel received ten kilograms of cocaine from El Ingeniero. (Id.) Araujo testified that he could tell from the packaging of the cocaine that it had originated from Colombia, (id. at 426), and that he and Dominguez-Gabriel arranged to deliver the cocaine to El Mamut who brought it into Arizona, from Mexico, via bus. (Id. at 427.) Araujo continued to receive cocaine in Arizona through this route for a period of four to five months. (Id. at 436.) Araujo testified that on his final trip from Arizona, he was stopped by state police in Oklahoma, arrested, and charged with drug trafficking. (Id. at 436.) Araujo was in jail for approximately two months before Dominguez-Gabriel posted his bail and bought him a ticket to Miami, Florida, where the two met. (Id.) Araujo testified that he then returned to New York for an eight to twelve month period while his criminal case in Oklahoma was pending. (Id. at 438). In approximately 2004, Araujo learned that a sentencing date had been scheduled in his Oklahoma drug trafficking case. (Id. at 438-39.) Araujo subsequently contacted Dominguez-Gabriel for assistance and, according to Araujo, Dominguez-Gabriel bought him a one-way airplane ticket to Acapulco, Mexico in order to help him flee from potential imprisonment. (Id.) Araujo was in Mexico for approximately eight months and worked for Dominguez-Gabriel's business, Transmision de Services Mexicanos ("TSM"), during this time. (Id. at 439-40.) Araujo further testified that while he was in Mexico, he picked up two kilograms of cocaine, paid for by Dominguez-Gabriel, packaged the drugs, and arranged for them to be loaded onto a Carnival Cruise Lines ship bound for Fort Lauderdale, Florida. (Id. at 444-47,449.) Araujo also recounted a transaction during this period involving two kilograms of cocaine that were sent by Dominguez-Gabriel to the United States in an airborne delivery, packaged with flowers. (Id. at 543-44.)
In 2005, Araujo left Mexico and illegally reentered the United States through the Texas border. (Id. at 451.) Upon his entry into the United States, Araujo returned to New York where he met up with another drug associate, Angel Sanchez. (Id. at 455.) Araujo worked with Sanchez to adulterate cocaine quantities. (Id. at 455-56.) Araujo testified that "adulterating" or "altering" cocaine meant enhancing cocaine quantities through various chemical reactions of "acetone.different agents [and] different powders." (Id. at 456.) Through these reactions, Araujo testified that he was able to turn one kilogram of cocaine into a kilogram and a half or even two kilograms of cocaine. (Id. at 455.)
In approximately 2006, Araujo testified that he spoke with Dominguez-Gabriel who told him that he had met a "real powerful drug dealer in Mexico." (Id. at 458.) Dominguez-Gabriel asked Araujo to travel to Mexico to meet with this drug dealer, Pablo. Araujo testified that he was uncomfortable traveling because of his fugitive status, (id. at 458-60), and thus asked Sanchez to travel to Mexico on his behalf. (Id. at 460.) Sanchez complied. (Id.) The day after Sanchez returned from Mexico, Araujo testified that Sanchez received 50 kilograms of cocaine in New York. (Id. at 462.) Araujo testified that Sanchez received two more shipments from Pablo and Dominguez-Gabriel -- a 50 kilogram shipment of cocaine approximately two weeks after the first shipment and a 120 kilogram shipment of cocaine approximately two weeks subsequent to that. (Id. at 474-75.) Sanchez was eventually arrested in 2006 with $1 million in DominguezGabriel's drug proceeds in Westchester County. (Id. at 503-04, 509-10.) In a recorded conversation between Araujo and Dominguez-Gabriel in December 2006, Dominguez-Gabriel asks Araujo how to ...