United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
VALERIE CAPRONI, District Judge.
The Court assumes familiarity with the facts of this case, which have been discussed in several prior opinions. Defendant Antonio Rosario was convicted, after a one-week jury trial, of conspiracy to violate the Hobbs Act, in violation of 18 U.S.C. § 1951; Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(b)(1) and 2; and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and (2). Rosario renews his motion pursuant to Rule 29 for a judgment of acquittal and moves pursuant to Rule 33 for a new trial. For the following reasons, Rosario's motions are DENIED.
At trial the Government's theory from the outset through its closing - was that Rosario served as the gunman for a four-person robbery crew that robbed the Nature's Cure Pharmacy in December 2008. See, e.g., Tr. 54, 619. One alleged co-conspirator, Luana Miller, testified at trial; she described in detail the role that Rosario and his erstwhile co-defendants, Samuel Vasquez and Curtis Taylor, played in the robbery. Tr. 137, 141-52. Miller's testimony was substantially corroborated by a video of the robbery taken by the store's surveillance cameras and cell phone records tending to show that Rosario's cell phone was near the pharmacy at the time of the robbery and, shortly after the robbery, placed a call to his mother's telephone from a location somewhere between the pharmacy and his mother's home. GX 602, GX 402, Tr. 332. The defense called no witnesses but vigorously cross-examined Ms. Miller and attacked the probative value of the circumstantial evidence. The defense attempted to demonstrate that the cell phone records were not definitive as to the location of the cell phones and attempted to capitalize on the lack of DNA from Rosario on clothing that had been found in a co-conspirator's car that looked similar to the clothing worn by the robber during the robbery.
At the close of the Government's case, Rosario moved pursuant to Rule 29 for a judgment of acquittal. Tr. 569. In particular, defense counsel "move[d] to dismiss any aiding and abetting, as that's clearly not the theory the Government has advanced." Id. The Court responded that there was "nothing in the charge on aiding and abetting" and agreed that "this does not appear to be a case tried on the aiding and abetting theory." Id. The Court's initial instructions to the jury did not include an aiding and abetting charge. Tr. 686-712.
Towards the end of its first day of deliberations, the jury sent a note to the Court stating: "On Count Two, does any involvement, e.g., driving [the] getaway car, count towards Charge No. 2, or does [the] count only apply if Rosario was inside the store, took the property, etc., as detailed on page 16 of the instructions, lines 12 through 19?" Tr. 721. The parties disagreed as to the appropriate response, and the Court excused the jury for the night to permit the parties to brief and argue the issue. After hearing from the parties, the Court provided the jury with a supplemental instruction regarding aiding and abetting liability as to the Hobbs Act robbery count only and permitted supplemental summations to focus on the newly provided charge. Tr. 759-63. Several hours after the supplemental arguments and instruction, the jury returned a verdict of guilty on all counts. Tr. 766.
Rosario makes two arguments in support of his Rule 33 motion for a new trial. First, he alleges that it was error for the Court to provide a supplemental instruction on aiding and abetting liability in response to the jury's note. Second, he takes issue with several statements made by the Government during summation. None of the Defendant's complaints warrants a new trial.
"Federal Rule of Criminal Procedure 33(a) provides that upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.'" United States v. James, 712 F.3d 79, 107 (2d Cir. 2013) (quoting Fed. R. Crim. P. 33(a)) (alteration omitted). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). "To grant the motion, there must be a real concern that an innocent person may have been convicted.'" United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (quoting Ferguson, 246 F.3d at 134) (alteration omitted).
I. The Court's Supplemental Instruction on Aiding and Abetting
Rosario contends that by instructing the jury on the theory of aiding and abetting the Court violated his Fifth Amendment due process rights. Rosario largely assumes the premise that it was an error to provide the supplemental instruction and then argues that he was prejudiced by the instruction. The Court rejects the premise that the instruction was inappropriate and also rejects the assertion that Rosario was prejudiced by the instruction.
A. The Court's Instruction Was Not Error
Rosario does not argue that the Court's instruction was wrong as to the law. See Tr. 757. Instead, he advances two arguments why it was improper to give any instruction on aiding and abetting liability. First, Rosario claims that there was no factual predicate to support an instruction on aiding and abetting; second, he claims that such an instruction was inappropriate because the Government did not argue the case on an aiding and abetting theory. Neither argument is persuasive.
"No instruction may be given unless there is a foundation in the evidence to support it." United States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990) (internal quotation marks omitted). Rosario argues that no reasonable juror could have convicted Rosario on an aiding and abetting theory because no party presented evidence that Rosario played any specific role in the robbery aside from being the gunman. Def. Mem. at 7, Reply at 2-4. Although Rosario is correct that no party advanced evidence of his having played any role other than gunman in the robbery, the Court does not find that it would have been unreasonable or irrational for the jury to have concluded, based on the testimony regarding the cell towers to which Rosario's phone was connecting around the time of the robbery, that the Government had proven, beyond a reasonable doubt, that Rosario accompanied Taylor, Vasquez, and Miller to rob the pharmacy. GX 402. It would also not have been unreasonable - regardless of how the Government argued the case - for the jury to have credited some, but not all, of Miller's testimony. Tr. 212-316; see Robinson v. Cattaraugus Cnty., 147 F.3d 153, 160 (2d Cir. 1998) ("[A] jury is entitled to believe some parts, and to disbelieve other parts, of the testimony of any given witness."). The jury could have easily concluded that the Government proved, beyond a reasonable doubt, that Rosario was one of the four robbers, but ...