United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Defendant David Delva was convicted of five counts arising from his participation in a robbery and kidnapping occurring over the course of three days in the Bronx in early September 2012. On November 24, 2014, David Delva moved pro se for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, alternatively, a judgment setting aside the verdict and granting a new trial pursuant to Rule 33. ("Pro Se Mot.") On December 16, 2014, defendant also moved by counsel for a judgment of acquittal ("Def. Mem.") and on January 5, 2015, he filed a pro se motion requesting a Fatico hearing.
These motions primarily argue that the testimony of the Government's cooperating witness, Gregory Accilien, lacks sufficient corroboration, is "incredible on its face" (Def. Mem. 2), and is insufficient to sustain a conviction. In his pro se motions, defendant also argues that the Court erred in denying his motion to suppress evidence seized at the time of his and Accilien's arrests, claiming that FBI Special Agent Reynolds and NYPD Detective Deloren committed perjury with respect to the search at 832 South Oak Drive and destroyed evidence in order "to secure a conviction". (Pro Se Mot. 4.) Delva also claims that the use of certain narcotics evidence at trial, which was obtained from the residence of co-conspirator Jean-Philippe, "confused the jurors" and caused Delva to be convicted of a narcotics distribution conspiracy. (Pro Se Mot. 8.) In his reply papers, received on February 11, 2015, Delva adds that (1) Accilien committed perjury regarding testimony about Delva's HTC phone, (2) Detective Deloren committed perjury by declaring that Accilien gave him permission to search the apartment, (3) the female victim committed perjury by claiming she was raped. (Reply Mot. 4.) Delva further requests a Fatico hearing, which he states "correspond[s] with the Rule 29 and 33 pro se motion" (Fatico Mot. 1) based on the "contradicting testimonies" of Accilien and the law enforcement witnesses (Fatico Mot. 2).
For the reasons that follow, each of Delva's motions are DENIED.
I. FACTUAL BACKGROUND
On September 8, 2014, trial commenced against Delva on the following eight counts: (1) conspiracy to commit Hobbs Act robbery of an individual (the "Male Victim") believed to be in possession of drugs and drug proceeds in or about September 2012, in violation of Title 18, United States Code, Section 1951; (2) the substantive Hobbs Act robbery of the Male Victim in or about September 2012, in violation of Title 18, United States Code, Sections 1951 and 1952; (3) conspiracy to commit kidnapping of the Male Victim and another individual (the "Female Victim") in or about September 2012, in violation of Title 18, United States Code, Section 1201(c); (4) the substantive kidnapping of the Male and Female Victims in or about September 2012, in violation of Title 18, United States Code, Sections 1201 and 1202; (5) the use and carrying of firearms during and in relation to, and possession of firearms in furtherance of, the robbery offenses charged in Counts One and Two and the kidnapping offenses charged in Counts Three and Four, in which firearms were brandished, and aiding and abetting the same, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(ii) and 2; (6) conspiracy to distribute and possess with the intent to distribute controlled substances, namely "crack" cocaine and marijuana, from at least in or about September 2012 through on or about June 4, 2014, in violation of Title 21, United States Code, Sections 841 and 846; (7) the use and carrying of a firearm during and in relation to, and possession of a firearm in furtherance of, the drug trafficking offense charged in Count Six, and aiding and abetting the same, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(i), 924(c)(1)(C)(i), and 2; and (8) the unlawful possession of a firearm and ammunition by a felon, in or about June 2013, in violation of Title 18, United States Code, Section 922(g)(1).
On September 18, 2014, the jury returned its verdict, convicting Delva on Counts One, Three, Six, Seven and Eight.
II. STANDARDS OF REVIEW
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 Delva 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 "patently incredible or defies physical realities." United States v. Cote, 544 F.3d 88, 101 (2d Cir. 2008) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)).
A. Testimony of Gregory ...