United States District Court, S.D. New York
Ryan Poscablo, Jessica Ortiz, Megan Gaffney, United States Attorney, Southern District of New York, UNITED STATES OF AMERICA, Preet Bharara.
Peter E. Brill, for JOVANNY RODRIGUEZ.
Steven F. Pugliese, for
OPINION & ORDER
JOHN F. KEENAN, District Judge.
Before the Court are Defendants' motions for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial pursuant to Rule 33. For the reasons explained below, the motions are denied.
During the three-week trial, the Government offered evidence to support fifteen charges against Defendants Oscar Minaya,  Jovanny Rodriguez, and Jesus Hilario-Bello ("Bello"). The fifteen counts charged in the trial indictment, Superseding Indictment 13, included conspiracies to commit Hobbs Act robberies (Count One) and kidnappings (Count Two); substantive Hobbs Act robberies (Counts Four, Seven, Eight, Nine, Ten, and Thirteen) and kidnappings (Counts Five and Eleven); firearms charges in connection with the robbery and kidnapping conspiracies (Count Three), as well as in connection with the substantive robberies and kidnappings (Six, Twelve, and Fourteen); and a conspiracy to distribute narcotics (Count Fifteen). The indictment charged Rodriguez with Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, and Fifteen. Bello was charged with Counts One, Two, Eight, Thirteen, Fourteen, and Fifteen.
At trial, the Government's evidence primarily consisted of testimony from cooperating accomplice witnesses and victims. It also included pictures, videos, and law enforcement testimony. The Government also offered evidence that Minaya's mother, Siri Minaya, attempted to influence a witness's testimony.
At the end of the trial, the jury found Bello guilty of all counts against him and found Rodriguez guilty of all counts against him except for Count Three. The Court discusses the evidence only insofar as it is relevant to the instant motion.
A. Counts One and Two
The Government alleged twelve overt acts in furtherance of the robbery conspiracy and six overt acts in furtherance of the kidnapping conspiracy. The overt acts included each of the substantive robberies and kidnappings as well as other incidents. In setting forth the evidence as to Counts One and Two, the Court discusses the incident that occurred on February 25, 2011, near Northern Boulevard in Queens. This kidnapping was charged as an overt act in furtherance of both the robbery and kidnapping conspiracies. It involved both Bello and Rodriguez and was not separately charged as a substantive crime.
The evidence supporting these counts consisted in great measure of testimony from Domingo Bautista, a cooperating accomplice witness. The jury also heard from the victim, Felicia Nardello. According to Bautista, Minaya was the santero, or tipster, and informed the crew that Nardello's husband kept over a million dollars in their home related to his construction business. Bautista testified that he, Rodriguez, and another individual spent two weeks surveilling the victim. On the day of the attack, Bautista, Rodriguez, Bello, and others met before the incident to coordinate. Rodriguez's van was out of order, so he used someone else's van to drive co-conspirators to the scene of the attack. Bello, along with other crew members, travelled to Nardello's house in the van driven by Rodriguez, while Bautista travelled with others in another car. When Nardello came home, crew members attacked her and threw her into the van driven by Rodriguez and containing Bello and others. Rodriguez drove to the highway and pulled off at an exit, where another crew member took Nardello's keys. While Rodriguez drove Nardello and Bello, other crew members returned to her home, which was protected by an alarm system. While Nardello was still in the back of the Rodriguez van, an English speaking crew member talked with her over the phone to get the alarm code. (Trial Tr. 178-87.)
Inside the house, crew members found and took poker chips, $55, 000, and jewelry. (Trial Tr. 188, 675.) Those crew members called Rodriguez and told him to let Nardello go. (Trial Tr. 189.) The crew members left Nardello's home and went to a friend's house where they began splitting up the money. (Trial Tr. 190.) Rodriguez and Bello met them later at a jewelry store, where Rodriguez and Bello were given their shares. (Trial Tr. 190-91.)
B. Counts Four, Five, and Six
Counts Four, Five, and Six arose out of an incident that occurred on December 21, 2010, near 162nd Street and Riverside Drive in Manhattan. The evidence established that Minaya was the santero for this job and that the target was a drug dealer named Raul who dated Minaya's girlfriend, Arleth Martinez. (Trial Tr. 230-31, 817.)
Bautista and Richard Trejo, another cooperating accomplice witness, testified that Rodriguez drove Bautista, Minaya, and another individual around so that Minaya could show them where Raul worked and where he parked his car. (Trial Tr. 232-33, 858.) On the night of the crime, Rodriguez drove Bautista and another individual to Martinez's apartment, where Raul was expected. (Trial Tr. 233-34, 860-61.) When Raul arrived, crew members jumped him and threw him into Rodriguez's van at gunpoint. (Trial Tr. 237-38, 863-64.) While Rodriguez drove, one of the crew members struck Raul on the back of the head with a gun. (Trial Tr. 238-39.) Raul then told the crew in the van that he kept his drug money at his Manhattan apartment. (Trial Tr. 240.) Someone in the van directed the other crew members to Raul's apartment, where they found over $400, 000. (Trial Tr. 230, 867-68.)
Rodriguez and the others in the van then left Raul on the side of the highway. (Trial Tr. 241.) Rodriguez later joined the crew as they distributed the money. (Trial Tr. 241-42, 868-69.) At first, he only received $21, 000. (Trial Tr. 243.) According to testimony from Juan Marte, a cooperating witness, Rodriguez was upset about the amount of money he received. (Trial Tr. 557.) Bautista testified that he and another crew member gave Rodriguez more money after Rodriguez realized he received less money than others. (Trial Tr. 243.)
C. Count Seven
Count Seven arose out of conduct that occurred sometime in 2010 near 183rd Street in the Bronx. Testimony from Bautista and Marte provided most of the evidence for this charge.
According to Bautista, the santero for this robbery alerted the crew that a man would put a suitcase containing nearly ten kilograms of cocaine into the back of a black cab. Bautista testified that Rodriguez and another crew member went to survey the building on 182nd Street in the Bronx where they believed the man had the suitcase. (Trial Tr. 255-57.)
On the day of the job, the crew used two vehicles, one of which was Rodriguez's van. (Trial Tr. 256, 539.) They saw a man come out of the building and place a suitcase into the back of a black cab before getting into the cab himself. (Trial Tr. 257, 541.) Bautista and Rodriguez followed the cab in the van that Rodriguez was driving. (Trial Tr. 257.) After the man exited the cab at a bodega, Rodriguez and Bautista continued to follow the cab. (Trial Tr. 257-58, 541.) Rodriguez used his van to cut off the cab, and Bautista jumped out to point a BB gun at the cab driver. (Trial Tr. 258, 541-42.) At this point, Rodriguez removed the keys from the cab's ignition and then opened the cab's trunk. (Trial Tr. 258, 542.) Bautista removed the suitcase from the trunk. (Trial Tr. 258, 542.)
Bautista and Rodriguez took the suitcase back to Rodriguez's house. (Trial Tr. 258, 543.) They found seven or eight kilograms of cocaine in the suitcase. (Trial Tr. 258, 543.) The cocaine was portioned out to the crew members with Rodriguez and Bautista each receiving one kilogram and Marte receiving nine hundred grams. (Trial Tr. 259, 543.) According to Bautista, he sold his cocaine to another crew member. (Tr. 259.) Although it is not clear from the record what Rodriguez did with his share of the cocaine, Bautista testified that Rodriguez called someone else because the quoted price was too low. (Trial Tr. 259.)
D. Count Eight
Count Eight arose out of conduct that occurred sometime in 2010 near Croes Avenue in the Bronx. The evidence consisted primarily of testimony from Bautista and Trejo.
Bautista and Trejo testified that Trejo was the santero for the job. (Trial Tr. 215, 843.) Trejo told the crew about a barber who also dealt heroin. (Trial Tr. 215-16, 844.) According to Bautista, he spent a week surveilling the barber with Rodriguez in Rodriguez's van. (Trial Tr. 216, 845.) On the night of the robbery, the crew met near the barber's shop around 186th Street and St. Nicholas Avenue in Manhattan. (Trial Tr. 216-17, 848.) The crew used three vehicles, including Rodriguez's van and Bello's red Nissan Quest. (Trial Tr. 217.)
When the barber left work, the three vehicles followed him home. (Trial Tr. 218, 848-49.) The crew members driven by Bello attacked the barber and threw him into the back of Bello's vehicle. (Trial Tr. 218-19, 849.) As Bello drove, the other crew members continued to beat up the barber until he disclosed the location of the drugs. (Trial Tr. 219-20.) After everyone arrived at the disclosed location, three crew members went into the building, tied up a man inside, and took two bags containing roughly one-and-a-half to two kilograms of heroin. (Trial Tr. 220-22, 851-52.) The crew then left the barber on the side of the highway. (Trial Tr. 221-22.)
Afterward, the co-conspirators met to divide up the drugs. (Trial Tr. 222, 855.) It was then that Trejo was introduced to Bello. (Trial Tr. 853.) The two bags contained approximately half a kilo of unprocessed heroin, as well as smaller bags of heroin. (Trial Tr. 854-55.) According to Trejo, Bello and Rodriguez helped count the small bags of heroin, which were then divided among the crew. (Trial Tr. 855.) The crew also assigned three members to sell the drugs. (Trial Tr. 222-23.) Trejo testified that Rodriguez and Bello each received a portion of the heroin. (Trial Tr. 856.) Trejo testified that the crew later combined their remaining shares of heroin and asked him to sell it. (Trial Tr. 856.) Rodriguez and Bello received proceeds from Trejo's sale of the heroin. (Trial Tr. 223.)
E. Count Nine
Count Nine arose out of an event that occurred sometime in 2010 near 187th Street in the Bronx. The evidence consisted primarily of testimony from two cooperating accomplice witnesses, Bautista and Carlos Villalona.
Bautista testified that he met with Rodriguez and another crew member to discuss robbing a man who kept drugs in his apartment. (Trial Tr. 250.) Villalona and Bautista both testified that on the afternoon of the robbery they met with crew members, including Rodriguez, to discuss the robbery. (Trial Tr. 251, 720.) That evening when the man returned home, crew members jumped him, put him in a van, and took his keys, ...