United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Chief District Judge.
A federal grand jury returned a five-count indictment against Jose Gonzalez and his co-Defendant Luis Osorio, both of whom are prior-convicted felons. Counts 1, 3, 4, and 5 - each of which contained an aiding-and-abetting charge under 18 U.S.C. § 2 - applied to Jose Gonzalez, who was eventually severed from Osorio. The case proceeded to trial, and on November 19, 2013, a jury convicted Gonzalez of one count of that indictment, that which charged him with possessing a short-barreled shotgun. See 26 U.S.C. §§ 5845(a), 5861(c). Although this Court administered a form of what is known as an Allen charge - emphasizing the importance of a unanimous verdict while reminding individual jurors not to surrender their convictions - the jury could not reach a unanimous verdict on two other counts, which, respectively, charged Gonzalez with being a felon in possession of a firearm and with possessing a non-registered firearm. See 18 U.S.C. § 922(g); 26 U.S.C. 5681(d). This Court declared a mistrial on those counts. Finally, Gonzalez was found not guilty of the final count, charging him with possession of a firearm with a defaced serial number. See 18 U.S.C. § 922(k).
Gonzalez now moves for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure on renumbered counts 1 (felon in possession), 2 (possession of a short-barreled shotgun), and 3 (possession of a firearm with a defaced serial number).
The parties agree that the evidence at trial established the following.
In the small hours of December 14, 2011, Jose Gonzalez was driving his friend, Luis Osorio, in a misappropriated Nissan Pathfinder on the city streets of Buffalo, N.Y. Gonzalez had taken the vehicle without permission from his sometime girlfriend, Anna Aguilar. Brian Connors, a Buffalo Police Officer on patrol that night, saw the Pathfinder and knew that it has been reported stolen. He followed the vehicle for a short time. Gonzalez, perhaps noticing the police cruiser in his mirror, eventually pulled the vehicle into a nearby parking lot. Both Osorio and Gonzalez exited the vehicle without being ordered to do so. Officer Connors then instructed them to place their hands in the air and remain still. They both complied. At some point, however, Osorio attempted to escape, but he was eventually tracked down by another police officer. Gonzalez did not attempt to flee; he complied with all the officer's directions.
Officer Connors eventually peered into the back window with his flashlight and discovered a shotgun on the floor of the backseat. The firearm, recovered from the vehicle that early morning, was later determined to be a Mossberg, Model 500A, 12-gauge shotgun. Its barrel was shortened to under 18 inches in length, its serial number was defaced, and it was loaded with one 12-gauge round (another 12-gauge round was also recovered from the vehicle).
A federal arrest warrant was eventually issued for Gonzalez. Acting under the authority of that warrant, Special Agent Thomas Rodriguez, of the Bureau of Alcohol Tobacco and Firearms, arrested and assisted in processing Gonzalez. In the course of that interaction, Gonzalez said, without prompting, that he was doing Osorio a favor by helping him move and that he "didn't like it when he saw Mr. Osorio actually put the shotgun into the vehicle." (Trial Tr. 161:6-10.)
At the close of trial, this Court, sua sponte, raised issues regarding the sufficiency of the evidence. See Fed. R. Crim. P. 29(a) ("The court may on its own consider whether the evidence is insufficient to sustain a conviction."). After allowing the parties to respond, this Court found that the Government could not proceed on an aiding-and-abetting theory on renumbered counts 1 and 3 because there was no evidence that Osorio - the one who Gonzalez allegedly aided and abetted in the commission of the crimes charged in those counts - was a felon. Nor did the Government present any evidence suggesting that the firearm was not registered to Osorio. The Government bears the burden of proof on these necessary elements of the crimes charged. And therefore, since there was no evidence suggesting that Osorio committed these crimes, Gonzalez could not be convicted of assisting him in their commission. See, e.g., United States v. Ruffin , 613 F.2d 408, 412 (2d Cir. 1979) ("It is hornbook law that a defendant charged with aiding and abetting the commission of a crime by another cannot be convicted in the absence of proof that the crime was actually committed.").
Under Rule 29(a) of the Federal Rules of Criminal Procedure, a court must, upon a defendant's motion, "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." A defendant may move for a judgment of acquittal after the government closes its evidence, after the close of all evidence, or after the jury has returned its verdict and been discharged. See Rule 29(a) and (c)(1). A defendant may also renew a previously denied Rule 29 motion, so long as renewal occurs within 14 days after the guilty verdict or discharge of the jury, whichever is later. See Rule 29(c)(1).
The making of a motion for a judgment of acquittal before the court submits the case to the jury is not a prerequisite for making such a motion after the jury is discharged. See Rule 29(c)(3). "[W]hen a motion for judgment of acquittal made at the close of the government's case-in-chief is denied and a defendant presents a case, then the evidence put in by the defense will also be considered in deciding a [Rule 29] motion made after the trial ends." United States v. Truman , 762 F.Supp.2d 437, 445 (N.D.N.Y. 2011).
A defendant challenging the sufficiency of the evidence, as Gonzalez does here, bears a heavy burden. United States v. Hassan , 578 F.3d 108, 126 (2d Cir. 2008); United States v. Finley , 245 F.3d 199, 202 (2d Cir. 2001). "In evaluating whether the evidence was sufficient to convict a defendant, [a reviewing court] consider[s] all of the evidence, both direct and circumstantial, in the light most favorable to the government, crediting every inference that the jury might have drawn in favor of the government.'" ...