United States District Court, S.D. New York
OPINION & ORDER
RINE B. FORREST, District Judge.
Defendant Anthony Serrano was convicted of three counts arising from his participation in a robbery and drug crew that impersonated police officers in order to rob other drug dealers. On October 24, 2014, Serrano moved for (1) a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure as to Count 3 of the Indictment; and (2) a judgment of acquittal or alternatively, setting aside the verdict and granting a new trial pursuant to Rule 33 as to all counts in the Indictment. (ECF No. 485.) For the reasons that follow, Serrano's motion is DENIED.
The Indictment charged Serrano with three counts arising from his participation in a robbery and drug crew (the "Crew") that impersonated police officers in order to rob other drug dealers. (ECF No. 294.) Count One charged participation in a conspiracy from 2012 through July 2013 to distribute or possess with intent to distribute a kilogram or more of heroin and half a kilogram or more of cocaine, in violation of 21 U.S.C. §§ 841(a), (b)(l)(A)-(B), 846. Count Two charged participation in a Hobbs Act robbery conspiracy during that time, in violation of 18 U.S.C. § 1951. Count Three charged that in connection with the crimes charged in the other two counts, Serrano carried, used, or possessed a firearm, which was brandished, or aided and abetted the same, in violation of 18 U.S.C. § 924(c)(l)(A)(ii), (2).
Trial commenced June 16, 2014 and ended June 20, 2014, when the jury convicted Serrano on all three counts. However, with respect to Count One, the jury found that while the Government had proven beyond a reasonable doubt that Serrano conspired to distribute 500 grams or more of cocaine, the Government had not proven beyond a reasonable doubt that Serrano conspired to distribute either one kilogram or more of heroin, or the lesser included amount of 100 grams or more of heroin.
At trial, three witnesses provided testimony as to the brandishing charge which stemmed from a robbery on October 14, 2012. The first was Victor Moral, a cooperating witness and fellow Crew member who participated in that robbery alongside Serrano and his co-defendants Javion Camacho and Alex Cespedes. The other two witnesses were the October 14, 2012 robbery's victims, Erickson Gilbert and Escarly Ynfante.
Moral provided testimony both as to the preparations for the robbery and the general sequence of events during the robbery itself. Regarding the preparations, Moral testified that when the Crew was planning the robbery, Serrano told Moral that he had guns he would bring; and that before the robbery began, Serrano handed a bag containing a handgun to a "skinny kid, " who then handed it to Moral, who in turn handed it off to Camacho. (Tr. 309, 323-26, 339.)
As to the robbery itself, Moral testified that to perpetrate the robbery Camacho and Cespedes used a fake police car and impersonated police officers. (Tr. 309.) They pulled over the victims' vehicle and asked them, in an authoritative tone, for their license and registration. (Tr. 346.) Camacho and Cespedes then walked the victims from their vehicle toward the fake police car; as they did so, Moral jumped in the victims' vehicle and drove off. (Tr. 346.)
Gilbert similarly testified that during the robbery he was pulled over by the fake police car, which had its lights and sirens on. (Tr. 656.) One of the robbers then said to Gilbert, "Get the fuck out of the car. FBI. Police." (Tr. 656.) Gilbert was then slammed against the car and searched. (Tr. 656-57.) One of the robbers jumped in Gilbert's vehicle and drove away. (Tr. 657-58.) After the other robbers took off, Gilbert testified that he said to himself, "This is really strange. The police don't do that." (Tr. 657.) A bystander later asked him what happened, and he said "I don't know what happened. I don't think it was the police; I think it was something else." (Tr. 657.)
Moral, Gilbert, and Ynfante each provided testimony relevant to whether a firearm was used or carried during the robbery. Moral testified that Camacho was wearing "a police vest... handcuffs, a gun and a badge, " and that a handgun was strapped into the vest. (Tr. 344-45.) According to Moral, the handgun's handle was visible. (Tr. 345.)
Gilbert testified that during the robbery one of the robbers was wearing a bullet-proof vest and "was clutching at something under his arm... where his vest was, " and this gesture made him think the robber had a gun. (Tr. 656, 658.) In response to the question "Now, did you notice anything that you thought might be a weapon?" Gilbert stated "I never saw the weapon, but he had this bulge here and he wanted to do this: Police. Police. Get out of the car." (Tr. 658.) When speaking to the police after the robbery, Gilbert "told them it was a gun but [he] didn't see it." (Tr. 661.)
Ynfante testified that she did not actually see a gun, but she noticed something that she thought might be a weapon, and when asked to elaborate as to what that something was, she specified that it was "a black bulge" in an area where "they usually get their gun." (Tr. 676.) She also testified that the thing that she thought might be a gun was located "around the waist... on the right side." (Tr. 676.)
Moral, Gilbert, and Ynfante also each provided testimony relevant to the question of whether the members of the Crew who participated in the robbery intended to intimidate, or actually did intimidate, the victims. Moral testified that during the Crew's robberies, members of the Crew "sometimes" were "armed" with "[a] handgun." (Tr. 263.) He also testified that he or other Crew members had carried a handgun during robberies "[s]o [they] could intimidate the people [they] were robbing." (Tr. 263.)
Gilbert testified that he was scared during the robbery "because anything could have happened. Anything." (Tr. 659.) When asked how he felt when he saw the man wearing the police vest reach to his side, he testified: "I couldn't speak. I had never been involved in an event like that. And I felt even worse knowing that my two little girls had been in the van minutes-like a little over an hour before." (Tr. 659.) Ynfante testified that throughout the entire robbery she was "very nervous." (Tr. 679.)
II. RULES 29 AND 33
A. Rule 29
A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Gaskin, 364 F.3d 438, 459 (2d Cir. 2004). The standard of review is exceedingly deferential. United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). Because Serrano was found guilty by the jury at trial, the Court views the evidence in the light most favorable to the Government, crediting every inference that could have been drawn in the Government's favor and deferring to the jury's assessment of witness credibility and the weight to be given to the evidence. See United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008). Under this standard, a jury verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Persico, 645 F.3d 85, 105 (2d Cir. 2011); United States v. Chang-An Lo, 851 F.2d 547, 554 (2d Cir. 1988). Where the jury has been properly instructed on alternative theories of liability, the reviewing court must affirm where the evidence is sufficient under any of the theories. United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996).
B. Rule 33
Rule 33 provides that a district court may "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The question for the Court is whether manifest injustice would result if it allows a guilty verdict to stand. See United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2001). In connection with a Rule 33 motion, a court may weigh evidence and assess the credibility of witnesses, but it should only intrude upon the jury's function of assessing a witness's credibility in exceptional circumstances. United States v. Thompson, 528 F.3d 110, 120 (2d Cir. 2008). Such exceptional circumstances exist, for example, when testimony is ...