United States District Court, S.D. New York
For Felix Parrilla(1), aka: Sealed Defendant 1, Lito, Defendants: Gail Gray; Gregory S. Watts, Law Office of Gregory S. Watts, Brooklyn, N.Y. USA.
For Gary Thomas(2), aka: Sealed Defendant 2: Dale Lionel Smith, LEAD ATTORNEY, Dale Lionel Smith, Esq., New York, N.Y. USA.
For Kirk Tangyuk(3), aka: Sealed Defendant 3: Christopher Paul Conniff, Ropes & Gray LLP, New York, N.Y. USA.
OPINION AND ORDER
ALISON J. NATHAN, United States District Judge.
On July 17, 2014, following a nine-day jury trial that began on July 7, 2014, Defendants Felix Parrilla, Gary Thomas, and Kirk Tang Yuk were convicted on Count One of a Superseding Indictment, Dkt. No. 148. Count One charged the Defendants with conspiring to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § § 846 and 841(b)(1)(A). At the close of the Government s case, all Defendants moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a); the Court reserved decision on the motions at that time. Following the jury verdict, the Defendants renewed their motions for a judgment of acquittal pursuant to Rule 29(c) and also moved for a new trial pursuant to Rule 33. For the reasons discussed below, the motions are DENIED.
At trial, the Government presented evidence in the form of witness testimony, phone records, recordings of wiretap interceptions, consensual recordings made by the cooperating witness at the direction of the Government, text messages, a video recording, GPS locational data, and physical evidence collected during the course of the Government's investigation. Viewing this evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002), the evidence proved the following conspiracy:
Deryck Jackson, the Government's cooperating witness, met Defendant Gary Thomas in the summer of 2010. Tr. 633:20-21. Thomas owned a legitimate waste management business in St. Croix, U.S. Virgin Islands named Paradise Waste Systems, Inc. Tr. 634:11-18. Thomas subsequently introduced Jackson to Defendant Felix Parrilla, whom Jackson knew as Lito, and to Defendant Kirk Tang Yuk. Tr. 634:19-635:1. Jackson began doing odd work here and there for Thomas in the early part of 2012, Tr. 635:13-636:1, but in the summer of 2012, Thomas asked Jackson if he wanted to make some extra money by helping Thomas distribute cocaine, Tr. 636:2-637:1. After Jackson agreed, he traveled from Florida to St. Croix on several occasions to discuss the possible drug transaction. Tr. 637:2-8.
On one of these trips to St. Croix, Thomas explained to Jackson that Parrilla would take some of the cocaine after it was delivered in Florida. Tr. 644:16-645:10. Sometime later, Jackson met with Tang Yuk in Florida and told Tang Yuk that he was expecting to receive some cocaine; he then asked Tang Yuk whether he wanted to sell some of it, Tr. 647:20-648:3, and Tang Yuk agreed, Tr. 650:7-12.
At some point, Jackson purchased a number of pre-paid cellular telephones, which were referred to as " go phones, " that he used to communicate with Thomas and Parrilla any time they discussed the drug transaction. Tr. 650:13-651:8, 691:1-8. Jackson programmed the phones and gave two of them to Thomas, who in turn provided one of the phones to Parrilla. Tr. 651:9-17. (Thomas activated his phone on September 13, 2012. GX 1503-A. Parrilla activated his prepaid phone on September 19, 2012, GX 1505-A, which is the same day that Jackson testified that he picked up the cocaine in Florida from Parrilla's shop, Tr. 749:2-750:19, 764:16-22.)
On August 29, 2012, Thomas emailed the Tropical Shipping Company to request a 20-yard container to be delivered to Paradise Waste, which would be used to convey a tire shipment headed to the U.S. mainland. GX 901. Geolocation data from Jackson's phone showed that Thomas and Jackson met at Paradise Waste on August 31, 2012. GX 503-J. Jackson testified that on that day he and Thomas packed 80 kilograms of cocaine into the false bottom of a wooden shipping crate, Tr. 697:15-698:24, 700:9-701:9, and that Thomas poured a chemical with a pungent odor into the crate to mask the smell of the drugs. Tr. 701 *14-702:5. While at Paradise Waste, Thomas told Jackson that he would pick up the crate from a man named " Angel" when it arrived at a business near Medley, Florida. Tr. 704:9-705:4.
On September 19, 2012, Thomas used his go phone to call Jackson to tell him to pick up the shipment of cocaine at a company called BJ Retreaders. Tr. 745:16-746:25; GX 504-B. Jackson rented a UHaul truck to move the crates and also bought moving boxes and duct tape to store the cocaine. Tr. 748:2-749:4; GX 400. After collecting the cocaine from BJ Retreaders, Jackson drove the crates to a garage where he unloaded the cocaine and distributed it into the four UHaul boxes that he had bought, along with rice and dryer sheets to mask the scent of the drugs, and then used plastic shrink-wrap and duct tape to seal the boxes. Tr. 753:2-754:15. After Jackson delivered the non-contraband contents of the crate, Thomas contacted Jackson on his go phone and directed Jackson to go to Parrilla's shop in Fort Lauderdale, Florida. Tr. 758:10-19; GX 504-B. Jackson and Parrilla then exchanged calls around 3:00 that afternoon. Tr. 758:22-759:2; GX 504-B, 1105-T. On one of those wiretapped conversations, Jackson informed Parrilla that, " I was dropping off the things for him. His parts, I, I'm secure already, and I told him I'm waiting to hear from you." GX 1105-T.
Jackson arrived at Parrilla's shop around 4:00 p.m. and confirmed that he had picked up the cocaine. Tr. 765:17-18; GX 503-B. Parrilla told Jackson to deliver 53 kilograms of cocaine to him and to take the remaining 27 kilograms on consignment at a price of $26, 000 per kilogram. Tr. 765:18-24. At 5:13 p.m., Jackson asked Tang Yuk to come by his apartment. GX 1107-T, Tr. 771:2-8. Outside of his apartment, Jackson gave Tang Yuk two kilograms of cocaine on consignment at a price of $27, 000 per kilogram. Tr. 711:9-772:2. Tang Yuk and Jackson then exchanged a number of calls in which they discussed selling the two kilograms of cocaine. GXs 1109-T, 1110-T, 1001-T; Tr. 778:13-780:1; 783:1-784:4; 788:2-789:17, 791:2-15.
On the evening of September 20, 2012, Jackson delivered 53 kilograms of cocaine to Parrilla at his shop. Tr. 772:9-17; GX 503-E. The cocaine was packed in two of the UHaul boxes that Jackson had purchased, Tr. 776:6-24, and contained rice and dryer sheets, Tr. 777:2-778:2.
Jackson then rented a car at Miami International Airport and drove to New York City with his wife, Lizette Velazquez, and the remaining 25 kilograms of cocaine. Tr. 791:22-792:16; GX 503-F to 503-1. On September 22, 2012, Jackson traversed the Verrazano-Narrows Bridge and checked into a hotel in Queens. Tr. 499:3-17, 794:24-795:10; GX 503-1. DEA agents then arrested Jackson, Velazquez, and an associate named Fred Fulton, and also seized the 25 kilograms of cocaine. GX 2006. Jackson began cooperating with the Government shortly after his arrest.
On September 28, 2012, law enforcement searched Parrilla's shop pursuant to a search warrant and found UHaul boxes, rice, dryer sheets, and shrink-wrap. Tr. 1386:5-1387:11; 775:5-776:12. Law enforcement did not recover any narcotics from this search. During the search, Parrilla slowly drove by the shop and sped off shortly thereafter. Tr. 1393:16-1395:4. He returned about 45 minutes later and consented to a search that revealed that he was carrying $17, 000 in cash. Tr. 1393:24-1399:25. The Government introduced phone records from the night that Parrilla's shop was searched showing a flurry of phone calls between Parrilla, Thomas, and Tang Yuk. GXs 504-A, 504-B.
On a call between Thomas and Jackson following the search, Thomas informed Jackson that the search of Parrilla's shop had caused him to " start f***ing panicking." GX 1005-T; GX 1002-T. Thomas also informed Jackson that Parrilla had sold the 53 kilograms of cocaine in a matter of days, GX 1005-T, Tr. 1308:4-8, and had paid Thomas for his role in the conspiracy, GX 1008-T, Tr. 856:13-16. On October 3, 2012, Tang Yuk delivered to Jackson's wife in Florida a backpack containing $25, 000 in drug proceeds from the cocaine that he sold. GX 203.
Following Jackson's arrest, Thomas, Parrilla, and Tang Yuk expressed concern regarding the status of the 25 kilograms that were in his possession. For example, on October 12, 2012, Thomas sent two text messages to Jackson stating " call me now" and " you need to deal with my son now its about to get ugly give him what you have." GX 300-A at 6. During a separate call in February 2013, Parrilla and Tang Yuk discussed what might have happened to Jackson. GX 1307-T. The Government had removed Jackson's name from the Bureau of Prisons' online database to ensure that his arrest would not be made public. Tr. 215:5-22. Parrilla noted on the call that if Jackson had been arrested he " would have shown up" on the " BOP" website. GX 1307-T. This led Parrilla to speculate that Jackson " ate the f***ing food, " GX 1307-T, which was code for cocaine, Tr. 649:23-24, 781:23-25, suggesting that Parrilla was concerned that Jackson had absconded with the drugs.
On June 5, 2013, Parrilla, Thomas, and Tang Yuk were arrested in connection with this case. Tr. 221.
As extensively discussed in United States v. Temple, the relevant question under a Rule 29 motion is " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 447 F.3d 130, 136 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Stated differently, " '[a] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.'" Id. (quoting United States v. Guadagna, 183 F.3d 122. 130 (2d Cir. 1999)). And " when a district court reserves decision on a defendant's Rule 29 motion at the close of the Government's evidence, 'it must decide the motion on the basis of the evidence at the time the ruling was reserved.'" United States v. Truman, 688 F.3d 129, 139 (2d Cir. 2012) (quoting Fed. R. Crim. P. 29(b)).
" In assessing the evidence, a court is constrained to bear in mind that Rule 29 'does not provide [it] with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" Temple, 447 F.3d at 136 (quoting Guadagna, 183 F.3d at 129). Thus, the defendant challenging a guilty verdict bears a " heavy burden." Id. at 137 (quoting United States v. Si Lu Tian, 339 F.3d 143, 150 (2d Cir. 2003)) (internal quotation marks omitted). But " this burden is not an impossible one." United States v. Kapelioujnyj, 547 F.3d 149, 153 (2d Cir. 2008) (citing United States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004)).
Under Rule 33, " the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). " The district court must strike a balance between weighing the evidence and credibility of witnesses and not 'wholly usurping' the role of the jury." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000)). While " the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, . . . it nonetheless must exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" Id. at 134 (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). " The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Id. That is, " [t]here must be a real concern that an innocent person may have been convicted." Id. (internal quotation marks omitted).
I. SUFFICIENCY OF THE EVIDENCE AS TO INVOLVEMENT IN THE CONSPIRACY
Both Thomas and Tang Yuk contend that there was insufficient evidence for a finding of guilt as to each of them. As suggested above, " [a] defendant challenging the sufficiency of the evidence supporting a conviction faces a 'heavy burden.'" Glenn . 312 F.3d at 63 (quoting United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994)). A court will " overturn a conviction on that basis only if, after viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, [it] determine[s] that 'no rational trier of fact' could have concluded that the Government met its burden of proof." Id. (quoting United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998)). As relevant here, each of the Defendants' " conviction[s] for conspiracy must be upheld if there was evidence from which the jury could reasonably have inferred that the defendant knew of the conspiracy . . . and that he associated himself with the venture in some fashion, participated in it . . . or [sought] by his action to make it succeed." United States v. Richards, 302 F.3d 58, 69 (2d Cir. 2002) (quoting United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994)) (internal quotation marks omitted).
Thomas argued that there was insufficient evidence to support a finding that he committed an overt act in furtherance of the conspiracy or that he knowingly entered into the charged conspiracy. The Court need not address Thomas's first point other than to note that the Government was not required to prove that he committed an overt act in furtherance of the conspiracy. See, e.g., United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) (" Unlike the general conspiracy statute, 18 U.S.C. § 371, schemes to import or distribute controlled substances are the subjects of specifically drawn statutes, and the rule in this and other circuits is that overt acts in furtherance of such specifically prohibited agreements need be neither pleaded nor proven." (collecting cases)). In any event, there was abundant evidence of an overt act in furtherance of the conspiracy by Thomas as discussed in detail below.
Turning to Thomas's second point, there was more than sufficient evidence from which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A superficial summary of some of the more incriminating evidence of Thomas's involvement in the charged conspiracy consists of the following: (1) Jackson's testimony that: (a) Thomas invited Jackson to make extra money through cocaine trafficking (Tr. 636:2-13); (b) Thomas summoned Jackson to St. Croix to plan the transportation of the drugs from St. Croix to Florida (Tr. 695:18-701:9); and (c) Thomas gave Jackson instructions as to where and how to retrieve the cocaine after it had been shipped to Florida (Tr. 704:9-705:9); (2) emails and documents corroborating Jackson's testimony that Thomas shipped a container to Florida (GXs 901-05); (3) phone records showing numerous calls between Thomas and Jackson and Thomas and Parrilla on prepaid cellphones (Tr. 650:13-654:2, 691:1-8), including on September 19, 2012 (the date Jackson testified he picked up the cocaine in Florida) and on September 20, 2012 (the date Jackson testified he delivered some of the cocaine to Parrilla and Tang Yuk) (GX 504-B, GT 19); (4) consensually recorded phone calls between Jackson and Thomas in which Thomas discussed: (a) the law enforcement search of Parrilla's garage, including the statement that Thomas " start[ed] f***ing panicking" after he learned that officers from the Broward County Sherriffs Department " kicked in the place, " and that he felt " good to hear that everything is cool with you 'cause now I know w hat's up, I was bugging'" (GXs 1005-T, 1008-T); (b) Tang Yuk's involvement in the conspiracy (GX 1008-T); and (c) Parrilla's apparent search for Jackson, and Parrilla's statement to Thomas that " it's about to get ugly" in apparent reference to Parrilla's belief that Jackson had stolen cocaine (GX 1009-T); (5) an October 12, 2012 text message that Thomas sent to Jackson stating " call me now " and " you need to deal with my son now its about to get ugly give him what you have" (GX 300-A at); (6) consensually recorded calls between Jackson and Tang Yuk in which Tang Yuk states, inter alia, that " me, Gary, and everybody had a big meeting" and that " I've already brought back the one for you and the paper . . . And when we had the meeting they told me, don't worry, go ahead and deal with the other one and just what number to work with" (GX 1002-T); (7) testimony and documents demonstrating that Thomas delivered a bag with over $20, 000 in cash to BJ Retreaders in late September 2012 (Tr. 1540:7-1546:19; GXs 403-A-B), even though Thomas's company typically paid BJ Retreaders with checks and credit cards (Tr. 1539:22-23); and (8) wire intercepts surrounding a meeting between Thomas and Parrilla in St. Croix on November 6, 2012 in which, inter alia, Thomas tells Parrilla " Travel alone!" and " don't tell anybody where you're at now" (GX 1204-T).
Viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in its favor, there was more than sufficient evidence from which the jury could reasonably have inferred that Thomas knew of the conspiracy, associated himself with the venture in some fashion, participated in it, or sought by his action to make it succeed. Richards, 302 F.3d at 69. Contrary to Thomas's assertion that Jackson's testimony was the " single piece of evidence used to tie Thomas to the alleged conspiracy and to weave together the wiretap statements to portray Thomas's otherwise innocent conduct as criminal, " Thomas Br. at 7, the summary above demonstrates that there was significant corroborating evidence regarding his knowing involvement with the charged conspiracy that is separate and apart from Jackson's sworn testimony. Thomas also contends that, but for the Court's limitation of his cross-examination of Jackson, he would have been able to further undermine Jackson's credibility to such an extent that there would have been insufficient evidence of his guilt. As discussed below, the Court finds Thomas's and Parrilla's arguments regarding the limitation of Jackson's cross-examination unavailing. But even assuming that the Defendants had been permitted to further undermine Jackson's credibility in the manner that they wished, any rational trier of fact still could have concluded that the Government met its burden of proof in light of the quantity and quality of the evidence corroborating Jackson's testimony.
B. Tang Yuk
Tang Yuk argues that there was insufficient evidence to support a finding that (1) he knowingly entered into the single charged conspiracy as opposed to the multiple conspiracies he alleged existed, and (2) knew or could have reasonably foreseen that the conspiracy involved five or more kilograms of cocaine.
Contrary to Tang Yuk's suggestion, " [t]he government need not show that the defendant knew all of the details of the conspiracy, so long as he knew its general nature and extent." United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010) (quoting United States v. Huezo, 546 F.3d 174, 180 (2d Cir. 2008)) (internal quotation marks omitted); see also United States v. Praddy, 725 F.3d 147, 153 (2d Cir. 2013) (" The coconspirators need not have agreed on the details of the conspiracy, so long as they agreed on the essential nature of the plan." (quoting United States v. Berger, 224 F.3d 107, 114 (2d Cir. 2000))) (internal quotation marks omitted). " Nor need the goals of all the participants be congruent for a single conspiracy to exist, so long as the participants agree on the 'essential nature' of the enterprise and 'their goals are not at cross purposes.'" Id. (quoting United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1192 (2d Cir. 1989)). As discussed below, the evidence presented at trial was more than sufficient to support a finding that Tang Yuk knew of the conspiracy's general nature and extent and that it involved at least five kilograms or more of cocaine.
1. Sufficiency of the Evidence Regarding Tang Yuk's Knowledge of the Nature and Extent of the Single Charged Conspiracy
Tang Yuk's principal argument is that a verdict of acquittal or new trial is warranted because the evidence at trial proved multiple conspiracies and not the single conspiracy charged in the indictment and, furthermore, that he suffered prejudice as a result of the variance between the charged conspiracy and the one ultimately proved at trial. Tang Yuk also makes the related, albeit slightly ...