OPINION & ORDER
SIDNEY H. STEIN, District Judge.
On August 22, 2013, a jury convicted defendant Louis McIntosh of one count of conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count One); one count of attempted Hobbs Act robbery (Count Three); two counts of committing Hobbs Act robbery (Counts Five and Seven); four counts of using, carrying, or possessing firearms in connection with the Hobbs Act counts, in violation of 18 U.S.C. § 924(c) (Counts Two, Four, Six, and Eight); and three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Counts Nine, Ten, and Eleven).
Defendant has now moved pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment of acquittal and pursuant to Federal Rule of Criminal Procedure 33 for a new trial in the interest of justice. Because there was insufficient evidence of defendant's intent to rob the participants of the Cliff Street dice game, the Court grants defendant's Rule 29(c) motion as to Counts Three and Four. The Court denies that motion as to the remaining counts because the evidence introduced at trial was sufficient to support the jury's guilty verdict. The Court denies defendant's Rule 33 motion because the interest of justice does not warrant a new trial.
I. THE COURT GRANTS DEFENDANT'S RULE 29 MOTION AS TO COUNTS THREE AND FOUR, AS INSUFFICIENT EVIDENCE SUPPORTS THE JURY'S VERDICT ON THOSE COUNTS. THE COURT OTHERWISE DENIES THAT MOTION.
"A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial bears a heavy burden." See United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (quotation marks omitted). The Court must "view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." See id. (quotation marks omitted). The Court must "sustain the jury's verdict so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See id. (quotation marks omitted). However, "[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt." See id. at 71 (alteration omitted).
With respect to the issue of venue, although the Court also reviews that evidence "in the light most favorable to the government, crediting every inference that could have been drawn in its favor, " see United States v. Smith, 198 F.3d 377, 382 (2d Cir. 1999) (quotation marks omitted), venue "need be proved only by a preponderance of the evidence, " and not beyond a reasonable doubt, see United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012). "Where, as here, a defendant is charged with multiple crimes in a single indictment, the government must satisfy venue with respect to each charge." See id. "Because the Hobbs Act criminalizes a particular type of robbery' - i.e., one that obstructs, delays, or affects commerce, ' [18 U.S.C.] § 1951(a) - venue for a substantive Hobbs Act charge is proper in any district where interstate commerce is affected or where the alleged acts took place." See id. at 186 (quotation marks omitted). For alleged acts, "to support venue, " however, "what is begun or continued in a district must be part of the actual charged crime, not merely steps preparatory to the crime." See id.
B. There was Insufficient Evidence that McIntosh Intended to Rob the Narcotics Dealers at the Cliff Street Park (Counts Three and Four).
Count Three charged defendant and others with attempting to "rob individuals they believed to be narcotics dealers" in a park on Cliff Street in Yonkers, New York on April 30, 2010, in violation of the Hobbs Act, 18 U.S.C. § 1951. Count Four charged defendant with using, carrying, or possessing a firearm discharged during the commission of that attempted robbery, in violation of 18 U.S.C. § 924(c).
At trial, the government introduced evidence that on April 30, 2010, defendant and his fellow conspirators gathered in Mount Vernon and then set off in two vehicles to rob "some pounds of marijuana" from marijuana dealers who lived in a house on Cliff Street in Yonkers, stopping on the way to obtain a shotgun and a pistol they had stored in locations in Mount Vernon. (Tr. at 703, 722.) However, after arriving on Cliff Street in Yorkers, they abandoned that plan because when they went to "check... out" the dealers' house, they saw "some people in the backyard having a cookout" and decided that there were "too many people out there" to rob them successfully. ( Id. at 703-05, 725-26.) They concluded that they would not commit that robbery at that time, and instead they spent the remainder of the afternoon at a nearby park, also on Cliff Street, "hanging out" and playing a dice game with individuals who they knew from the area who were crack cocaine dealers. ( Id. at 723-24, 728-31.) A fight broke out between defendant and one of those crack dealers, named Biggs, over a communal liquor bottle. ( Id. at 732-34, 743.) McIntosh went to his truck, took his shotgun from the truck, returned to the park, shot Biggs, and then fled in his truck, all without robbing Biggs or anyone else of anything. ( Id. at 743-50, 857, 930.)
In his Rule 29 motion, defendant contends that the evidence of his intent to rob Biggs or any other participant in the dice game was insufficient for a reasonable juror to convict him of attempting a Hobbs Act robbery (Count Three) or possessing a firearm in connection with an attempted Hobbs Act robbery (Count Four).
To convict defendant of an attempt to commit Hobbs Act robbery, the government was required to introduce sufficient evidence from which a rational juror could conclude beyond a reasonable doubt that defendant "had the intent to commit th[at] crime." See United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003).
In support of its argument that there was sufficient evidence of defendant's intent rob the Cliff Street dice game participants, the government cites the following trial testimony: When McIntosh and his crew moved to the park, they came across others they knew from the area as crack dealers and began "hanging out" with them. (Tr. at 724.) Ultimately, they joined with the crack dealers in a dice game. ( Id. at 730.) McIntosh gave money to a man named Corleon - one of the crack dealers already in the park - to purchase liquor. ( Id. ) McIntosh's sensibilities were offended when Biggs drank directly from the bottle rather than using one of the paper cups that also had been purchased. ( Id. at 740-41.) After several unsuccessful directions by McIntosh to Biggs not to put his mouth on the bottle to drink, defendant "looked at" Edward Ramirez and certain other members of his crew. Ramirez understood the "look" as a sign that "it was going to be something." ( Id. at 741.) Ramirez and some of the codefendants - but not McIntosh - began to discuss "who was going to rob who for what." ( Id. ) Soon thereafter, Biggs "grabbed" the liquor bottle and again "put his mouth on it." ( Id. at 742.) Defendant grew upset that Biggs had once again failed to use a cup when drinking. McIntosh asked Corleon to pay McIntosh what he had spent for the liquor; Corleon responded that he spent all his money on liquor and refused to repay McIntosh. ( Id. at 743.)
McIntosh then went to his truck, which was parked nearby, to get his shotgun and soon returned to the game with the weapon. ( Id. ) While Ramirez distracted Biggs, defendant "slapped" Biggs with the shotgun, and Biggs and McIntosh began to struggle over the weapon. ( Id. at 744-45.) Another co-defendant - Steely - fired a pistol, hitting Biggs. ( Id. at 856-57.) At that point, "the whole crowd started running, " and McIntosh shot and hit Biggs. ( Id. at 745, 857, 930.) McIntosh, Ramirez, Steely and the other co-defendants promptly drove away in two separate vehicles. ( Id. at 746.) The rush to the vehicles and the getaway were caught on a surveillance videotape, but the contretemps in the park was not. ( Id. at 752-54.)
Ramirez testified at the trial that immediately after the fight, McIntosh was "mad because his knee was messed up, mad about - that [they] ain't get nothing. We was talking about how we didn't - we went over [to Cliff Street] to catch jerks, which in street terms means a robbery, and we didn't get nothing. We ended up losing." ( Id. at 751.) Terrence Duhaney, another co-defendant, testified that McIntosh "was saying that the whole plan was to rob the dice game, but it didn't turn out that way because the guy tried to fight back and end[ed] up getting shot." ( Id. at 861.) An individual from the same federal jail as defendant, Hibah Lee, testified that defendant had told Lee that at the dice game, defendant went to "his truck to get the shotgun to go in [Biggs's] pocket and teach him a lesson" - that is, "[r]ob him" of "[a]nything that he has in his pockets." ( Id. at 930-31.)
Drawing all reasonable inferences in favor of the prosecution, the jury was certainly able to conclude beyond a reasonable doubt that defendant assaulted and shot Biggs. The question before this Court, however, is whether there was sufficient evidence for a reasonable juror to conclude beyond a reasonable doubt that defendant also intended to rob Biggs or any other member of the group in the park.
The Court finds that the prosecution failed to meet its burden regarding defendant's intent to commit robbery, an essential element of Count Three. From the evidence admitted at trial, it was at least as likely that McIntosh assaulted Biggs because Biggs repeatedly put his mouth on the communal liquor bottle after ...