The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
On February 27, 2012, after a three-day trial, the jury returned a guilty verdict against Defendant Charles Mensah, on a two-count redacted indictment, charging him with violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C) (conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of a mixture and substance containing a controlled substance), as well as violating 21 U.S.C. § 843(b) (use of a communication facility in committing, causing, and facilitating commission of acts constituting felonies).
Presently before this Court is Defendant's post-trial motion for a judgment of acquittal, pursuant to Rule 29(c), or a new trial pursuant to Rule 33(b)(2) of the Federal Rules of Criminal Procedure.*fn1 The Government opposes the motion. For the reasons discussed below, Defendant's motion is denied.
The evidence at trial established that Defendant purchased ecstasy pills from Joseph Abbey from at least March to June of 2009. Recordings of wiretapped conversations showed Abbey and Defendant discussing purchases of large quantities of ecstasy pills, and Defendant's plans to travel to New York and Chicago to distribute the drugs. Additionally, following his arrest on June 17, 2009, Defendant admitted to purchasing ecstasy pills from Abbey and distributing them to others at a profit.
Other evidence showed that Abbey also supplied ecstasy pills to Brianne Aguinaga. Aguinaga in turn distributed the pills to Kristin Bermingham who sold them to an individual cooperating with the government. Through that individual, the Government made a total of five controlled purchases of ecstasy pills between June of 2007 and May of 2008. Laboratory reports showed that the ecstasy pills recovered from these controlled buys contained methamphetamine, MDMA, and BZP.
At trial, following the conclusion of the Government's case-in-chief, Defendant argued that the evidence submitted did not establish that Mensah participated in a conspiracy beyond his relationship with Abbey. Further, Defendant contended that the involvement of individuals like Birmingham pre-dated Defendant's own involvement, and thus narcotics seized in relation to them could not be used against him.
After limited briefing, this Court denied Defendant's motion as to the conspiracy charge and one charge of using a communication facility in facilitating the commission of a felony. The Court granted Defendant's motion as to another count of using a communication facility on the basis that the time listed for the relevant phone call differed between the indictment and the evidence presented at trial.
Following closing arguments, Defendant renewed his request for a judgment of acquittal. After being granted an extension, Defendant filed his motion on March 15, 2012. Briefing on the motion concluded April 12, 2012, at which time this Court took the motion under advisement without oral argument.
Rule 29(a) provides, in pertinent part, that upon the defendant's motion, a court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The focus of a Rule 29 motion therefore falls on the sufficiency of the evidence presented in the government's case-in-chief. See United States v. Saneaux, No. 03 CR 781, 2005 WL 2875324, at *2 (S.D.N.Y. Nov. 1, 2005).
A defendant challenging the sufficiency of the evidence bears a heavy burden. See United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000); United States v. Walker, 142 F.3d 103, 112 (2d Cir.1998). A district court may enter a judgment of acquittal on the grounds of insufficient evidence only if "after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, it concludes 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); see also United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003); United States v. Skinner, No. 03-CR-11, 2005 WL 782811, at *1 (W.D.N.Y. Apr. 6, 2005). Stated another way, "the court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is non-existent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (citation and quotation omitted).
When considering the trial evidence, "the court must be careful to avoid usurping the role of the jury." See Reyes, 302 F.3d at 52. The court is not permitted to "substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury." Guadagna, 183 F.3d at 130 (internal quotations and citations omitted). The court must give "full play" to the jury's credibility determinations, weighing of the evidence, and drawing of justifiable inferences of fact. See United States v. Spadoni, No. 00-CR-217, 2005 WL 2275938, at *3 (D. Conn. Sept. 15, 2005) (citing Guadagna, 183 F.3d at 129).
B. Defendant's Motion for Acquittal
"In order to convict a defendant of the crime of conspiracy, the government must show that two or more persons entered into a joint enterprise for an unlawful purpose, with awareness of its general nature and extent." United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010). This requires showing that Defendant "agreed to participate in what [Defendant] knew to be a collective venture directed toward a common goal." United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004) (quoting United States v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001)). "In assessing whether the government has met its burden, we look to the government's evidence of the 'interrelationship and interdependency' of alleged co-conspirators, as well as 'the nature and duration of the enterprise.'" United States v. Kapelioujnyj, 547 F.3d 149, 155 (2d Cir. 2008) (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989)).
However, a defendant need not be aware of every detail of a conspiracy, or every other member. McDermott, 245 F.3d at 137; United States v. Nusraty, 867 F.2d 759, 762 (2d Cir. 1989). It is enough if the Government proves "a permissible inference, from the nature and scope of the operation, that each actor was aware of his part in a larger organization where others performed similar roles equally important to the success of the venture." United States v. Vanwort, 887 F.2d 375, 383 (2d Cir. 1989).
Finally, where, as here, an indictment includes a weight-related provision, the Government must show that a "co-conspirator defendant at least could have reasonably foreseen the type and quantity of the substance about which [he] conspired." United States v. Adams, 448 F.3d 492, 500 (2d Cir. 2006).
Defendant advances three arguments in favor of acquittal. First, he argues that acquittal is warranted for lack of any connection between him and other co-conspirators like Bermingham and Aguinaga. Second, there being no relationship, Defendant asserts that the laboratory reports introduced at trial, describing the narcotics seized from other co-conspirators, cannot form the basis for the controlled substances Defendant allegedly distributed. Defendant further argues that there is no evidence that he and Abbey were discussing narcotics transactions during the wiretapped phone conversations because neither the word "ecstasy" nor "pills" appears in any of the conversations. Third, Defendant argues that, as the Government has failed to prove that his actions involved a controlled substance, so it cannot prove that he used a telephone to commit, cause, or facilitate a felony.
Upon careful consideration of these arguments and the Government's response, this Court finds ...