United States District Court, E.D. New York
MEMORANDUM & ORDER
GLASSER, Senior United States District Judge.
her conviction after a trial by jury of conspiracy to
distribute and possess with intent to distribute controlled
substances in violation of 21 U.S.C. §§ 846 and
841(b)(1)(C) (Count One) and of using and carrying a firearm
during an in relation to a drug offense in violation of 18
U.S.C. § 924(c)(1)(A)(i) and of aiding and abetting that
crime in violation of 18 U.S.C. § 2 (Count 3), the
defendant moved this Court for an Order directing her
acquittal, Dkt. No. 141, and for an Order granting a new
trial, Dkt. No. 143, pursuant to Rules 29 and 33,
respectively, of the Federal Rules of Criminal Procedure.
Both motions were denied in a Memorandum and Order. Dkt. No.
182. Thereafter, a motion was made seeking this Court's
reconsideration of its Order of denial, Dkt. No. 184. The
government's letter response in opposition, Dkt. No. 187,
and the defendant's reply, Dkt. No. 188, are now all
before the Court.
burden of her motion for reconsideration is not that there
are controlling decisions that were overlooked, or an
intervening change in the law, or new evidence that would
have a decisive impact upon the jury's finding of guilt,
but is bottomed upon her claims that she is innocent; that
404(b) evidence was admitted erroneously; that the
government's cross examination and summation was improper
and prejudicial; and that the interests of justice require
that she be granted a new trial in accordance with Rule
33(a). She does not seek reconsideration of the denial of her
motion for acquittal pursuant to Rule 29. Dkt. No. 185 at p.
3. In the Memorandum of Law in Support of her Motion, she
argues that the Court's denial didn't address those
main arguments for a new trial. Dkt. No. 185 at p. 3. The
Court readily concedes that the primary issue addressed in
its Order denying her Rule 33 motion was the inconsistency
between the jury's general verdict and its responses to
the two special interrogatories.
entirety of the defendant's memorandum of law in support
of the motion for an acquittal pursuant to Rule 29, Dkt. No.
141, was devoted to a minute review and evaluation of the
evidence as it was presented during the trial and to the
assertion that she did not know that her co-conspirator,
Justin Smith, (named as her co-defendant in the original
indictment), was stashing controlled substances in her
apartment and she did not know he was a drug dealer. Those
quintessential facts framed the dispositive issue in this
case and they were previewed by counsel in their opening
statements-the government asserting that she knew drugs were
being stored in her apartment and that she knew Smith was a
drug dealer, and the defendant's asserting that she did
not know that Smith was using her apartment to store drugs.
TR at 151-152; 156. That disputed issue wove its way
throughout the trial as this brief transcript excerpt
epitomizes. On direct examination of the defendant is the
following at p. 547:
Q: Did you knowingly let him use your apartment as a stash
Q: Is it clear that he was using it as a stash pad?
cross examination, at p. 595:
Q: Well, when the police arrested you and Mr. Smith in your
apartment with all of those drugs, they had to belong to
Q: And your testimony here today is that they did not belong
A: Of course not.
Q: So, that means that your testimony is they belong to