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United States v. Brown

United States District Court, S.D. New York

November 8, 2017

UNITED STATES OF AMERICA,
v.
LAWRENCE BROWN, Defendant.

          OPINION & ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

         Defendant Lawrence Brown was charged in a four count indictment with having committed two Hobbs Act Robberies, in violation of 18 USC § 1951, and with brandishing a firearm during crimes of violence, in violation of 18 USC § 924(c). Defendant was accused of committing two separate robberies; one on November 14, 2013 at a Rite Aid Pharmacy ("Rite Aid Robbery") and one on April 4, 2014 at a Shop Rite Supermarket ("Shop Rite Robbery"). In May 2016, Defendant moved to suppress, inter alia, identification evidence ("Defendant's Suppression Motion"). By Opinion and Order dated September 19, 2016, this Court denied that portion of Defendant's Suppression' Motion which sought to suppress the photo array identification evidence. Following a jury trial, Defendant was convicted of all four counts of the indictment.

         Now before the Court is Defendant's post-trial motion pursuant to Rule 29 and Rule 33 of the Federal Rules of Criminal Procedure, for an Order setting aside the jury verdict and entering an order of acquittal, or in the alternative, granting a new trial ("Defendant's Motion"). For the following reasons, Defendant's Motion is DENIED in its entirety.

         LEGAL STANDARD

         Rule 29 Motion

         Rule 29 provides that after the close of the Government's evidence in a criminal trial, on the defendant's motion, the Court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. § 29(a). The rule permits a defendant to move for a judgment of acquittal within fourteen (14) days of a guilty verdict or the Court's discharge of the jury, whichever is later.[1] Fed. R. Crim. P. § 29(c)(1). On such a motion, the Court must enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Fed. R. Crim. P. 29(a), (c); United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (citing United States v. Reyes, 302 F.3d 48, 52 (2d Cir.2002)). This standard imposes a heavy burden on the defendant, as a conviction must be affirmed if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         When assessing the sufficiency of the evidence, the Court must view the evidence in the light most favorable to the government and draw all reasonable inferences in its favor. United States v. Puzzo, 928 F.2d 1356, 1361 (2d Cir.1991). The Court must consider direct evidence as well as any circumstantial evidence proffered. See United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citing United States v. Libera, 989 F.2d 596, 601 (2d Cir. 1993), cert. denied, 510 U.S. 976 (1993)). In so doing, the Court must view the evidence in its totality, not in isolation, and note that the government is not required to negate every possible theory of innocence. See United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.1993). Most importantly, the Court must be ever mindful not to “usurp[e] the role of the jury, ” United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (citing Jackson, 335 F.3d at 180), nor may it “substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” Id. at 718 (citing United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999)) (internal quotation marks omitted).

         Rule 33

         On a Rule 33 motion, “the court may vacate any judgment and order a new trial if the interest of justice so requires.” Fed. R. Crim. P. § 33. Rule 33 motions are typically granted “only in extraordinary circumstances.” United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995); see also United States v. Torres, 128 F.3d 38, 48 (2d Cir.1997); United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009). The Rule 33 time limitations are jurisdictional; unless a motion is filed in a timely fashion, a court lacks the power to consider it. United States v. Spencer, 83 Fed.Appx. 391, 393 (2d Cir. 2003) (citing United States v. Dukes, 727 F.2d 34, 38 (2d Cir. 1984)). While Rule 33 “confers broad discretion upon a trial court, ” the granting of the motion must be predicated upon the Court's need to avoid a perceived miscarriage of justice. United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). It is axiomatic that trial courts “must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses.” United States v. LeRoy, 687 F.2d 610, 616 (2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). Only where exceptional circumstances exist may the trial judge intrude upon the jury function of credibility assessment. See United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989). For example, where testimony is deemed “patently incredible or defies physical realities, ” the Court may reject such evidence despite the jury's evaluation. See e.g., United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1414); Holland v. Allied Structural Steel Co., 539 F.2d 476, 483 (5th Cir. 1976), cert. denied, 429 U.S. 1105 (1977); Zollman v. Symington Wayne Corp., 438 F.2d 28, 31-32 (7th Cir. 1971), cert. denied, 404 U.S. 827 (1971). The “ultimate test” for the Court's consideration is “whether letting a guilty verdict stand would be a manifest injustice [such that] . . . . an innocent person may have been convicted.” Ferguson, 246 F.3d at 133 (citation and quotation marks omitted); see also United States v. Aponte-Vega, 230 F.3d 522, 525 (2d Cir. 2000) (per curiam).

         DISCUSSION

         Upon viewing the evidence in the light most favorable to the Government, and taking into consideration the totality of the evidence, it is this Court's determination that the Government has proffered sufficient evidence to establish each of the requisite elements of the crimes charged, such that a rational trier of fact would or could determine beyond a reasonable doubt that the Defendant committed both the Rite Aid Robbery and the Shop Rite Robbery.

         Defendant does not challenge the sufficiency of the evidence concerning the factual elements of the crimes charged. In fact, Defendant concedes “that the Government established the [necessary factual elements of the] robberies beyond a reasonable doubt.” (Defendant's Brief in Support of Motion Pursuant to Rules 29(a) and 33, ECF No. 59, “Def. Br.” at 2.) Defendant's sole contention is that the Government failed to establish beyond a reasonable doubt the identity of the perpetrator. (Id.) In other words, Defendant asserts that the Government failed to establish beyond a reasonable doubt that it was he who committed both robberies. This Court disagrees.

         Rite Aid Robbery

         Defendant contends that there was insufficient evidence placing him at the site of the Rite Aid Robbery. (Def. Br. at 2.) Such contention lacks merit. At trial, Stephanie Solis, a cashier of the Rite Aid Pharmacy located in New Windsor, New York, testified that on November 14, 2013, a tall male dressed as a Pepsi delivery employee (“perpetrator”) entered the location and asked to speak to the store manager. After directing the perpetrator to Kerensa Howard (“Howard”), the store manager, Solis observed the perpetrator and the manager briefly talk and then enter the manager's office. A short time thereafter, Solis observed the perpetrator exit the manager's office carrying a blue Aldi bag with a tree on it (later determined to contain money) and then ...


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