United States District Court, E.D. New York
MEMORANDUM AND ORDER
Glasser, Senior United States District Judge
before the Court are the Defendant's motions pursuant to
Rules 29 and 33 of the Federal Rules of Criminal Procedure
seeking to set aside the verdict of guilty and enter a
judgment of acquittal or, alternatively, to order a new
trial. Defendant Todd Macaluso was found guilty after a trial
by jury of conspiring with his co-defendants, Humberto
Contreras and Carlos Vazquez, to possess with the intent to
distribute five kilograms or more of cocaine on board an
aircraft registered in the United States, in violation of 21
U.S.C. §§ 963, 960(b)(1)(B)(ii), and 959(d). While
his co-defendants accepted plea agreements, the Defendant
chose to take his case to trial. For the reasons stated
below, the Defendant's motions are DENIED.
seeking relief pursuant to Rule 29, the Defendant challenges
the sufficiency of the evidence to support his conviction.
That Rule advises the Court that it “must enter a
judgment of acquittal of any offense for which the evidence
is insufficient to sustain a conviction.” Fed. R. Crim
P. 29. General principles have accreted overtime to that
precisely stated Rule adding layers of meaning to homely
words, such as “evidence” and
“sufficient” and “sustain.” So, for
example, evidence, whether direct or circumstantial, must be
assessed most favorably to the Government drawing every
inference in its favor. United States v. Bagaric,
706 F.2d 42, 64 (2d Cir. 1983), abrogated on other
grounds by Nat'l Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 259-60 (1994). A conviction
must be affirmed if the jury could have found guilt beyond a
reasonable doubt from the inferences fairly and reasonably
drawn. United States v. Skowronski, 968
F.2d 242, 247 (2d Cir. 1992). The determination of
credibility is solely in the province of the jury and the
Court must not usurp its role. United States v.
Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). The clearest
and most instructive distillation of the many elaborations of
the Rule was written by Judge Prettyman in Curley v.
United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),
cert. denied, 331 U.S. 837 (1947), as follows:
The true rule, therefore, is that a trial judge, in passing
upon a motion for directed verdict of acquittal, must
determine whether upon the evidence, giving full play to the
right of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, a
reasonable mind might fairly conclude guilt beyond a
reasonable doubt. If he concludes that upon the evidence
there must be such a doubt in a reasonable mind, he must
grant the motion; or, to state it another way, if there is no
evidence upon which a reasonable mind might fairly conclude
guilt beyond reasonable doubt, the motion must be granted. If
he concludes that either of the two results, a reasonable
doubt or no reasonable doubt, is fairly possible, he must let
the jury decide the matter.
defendant has the burden of persuading the Court that there
was no evidence to permit a reasonable mind to fairly
conclude that he was guilty beyond a reasonable doubt.
United States v. Gordon, 987 F.2d 902, 906 (2d Cir.
1993). Having presided over this trial and having reviewed
the record, with which I am thoroughly familiar, I conclude
with confidence that the Defendant failed to carry his burden
and that the matter was necessarily left to the jury to
decide. His Rule 29 motion is DENIED.
is exemplary in its succinctness: “Upon the
defendant's motion, the court may vacate any judgment and
grant a new trial if the interest of justice so
requires.” Fed. R. Crim P. 33. Inherent in its
succinctness, however, is the question, when does the
interest of justice so require? The answers frequently given
are “whether letting a guilty verdict stand would be a
manifest injustice, ” United States v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001), and whether
there is a “real concern that an innocent person may
have been convicted.” United States v. Canova,
412 F.3d 331, 349 (2d Cir. 2005). With that gloss upon the
Rule in mind, shall the conviction of the Defendant be
vacated and a new trial be granted? The answer the Court is
driven to make upon its view of the law is “No”
for the reasons discussed below.
the crux of the Defendant's argument is that the
government failed to convict him upon “credible”
evidence. The Defendant gives particular focus to the
credibility of the government's so-called “central
witness.” Ultimately, “the defendant bears the
burden of proving that this extraordinary remedy should be
granted.” United States v. Levy, 594 F.Supp.2d
427, 436 (S.D.N.Y. 2009) (citing United States v.
Sasso, 59 F.3d 341, 350 (2d Cir. 1995)). He has failed
to carry that burden. Even assuming that this “central
witness” was not credible, the Defendant ignores the
litany of other highly credible evidence presented against
him at trial.
in the Defendant's contention is the devaluation of
circumstantial evidence. That view has been
“devalued” by Wigmore quite convincingly who
observed that “circumstantial evidence may be as
persuasive and as compelling as testimonial evidence and
sometimes more so . . . .” 1A Wigmore on Evidence
§ 26 at p. 961; see also Holland v. United
States, 348 U.S. 121, 140 (1955) (“Circumstantial
evidence . . . is intrinsically no different from testimonial
evidence . . . . In both instances a jury is asked to weigh
the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference.
In both, the jury must use its experience with people and
events in weighing the probabilities. If the jury is
convinced beyond a reasonable doubt, we can require no
more.”) In People v. Cleague, 22 N.Y.2d 363
(1968), the Court of Appeals, after citing Wigmore,
supra, in observing that “the myth of innate
superiority of direct testimonial evidence was exploded long
ago” went on to write at p. 367: “Indeed,
circumstantial evidence is generally stronger, at least when
it depends, as it often does, upon undisputed facts about
which human observers are less likely to err as a matter of
accuracy or to distort as a matter of motivation, emotional
shock, or external suggestion. On the other hand, direct
evidence almost always, even in the instance of bystanders,
is subject to one or more of those psychological
infirmities.” The law in this Circuit is the same.
See United States v. Sureff, 15 F.3d 225, 229 (2d
Cir. 1994); see also United States v. Yakovlev, No.
09 CR 587(S-1) (ILG), 2011 WL 13130434, at *12 (E.D.N.Y. July
28, 2011), aff'd, 508 Fed.Appx. 34 (2d Cir.
2013). The circumstantial evidence in this case speaks
of the Defendant's knowing participation in this
conspiracy starts with money- $185, 000 to be exact. Dkt.
128-7, at 4. The Defendant was to be paid over a hundred
times his normal rate for piloting an aircraft. The Defendant
stipulated to the fact that he was typically paid $1, 000 per
flight from the U.S. to Mexico, and a flight to Haiti, in the
same plane, is not plausibly 185 times as expensive unless
some illicit cargo is involved. Dkt 128-10; Ex. G 3:43-9:26.
Defendant also went to great lengths to keep his co-pilot in
the dark about the conspiracy. This fact was corroborated by
numerous sources throughout the trial.
“Lefty”-the pilot seated to the left, aka
Macaluso-was the one to talk to about transporting the
cocaine. See Ex. B. 25:25-26; see also Ex. E
1:40-46; Ex. F 8:39; Trial Tr. 680:18-24; Ex. F 10:27-28.
Defendant was present at numerous meetings with known drug
traffickers. See Ex. G. Some of these meetings were
recorded, and the Defendant's conversations displayed
knowledge of the illicit purpose of the flights. See
Ex. A; Ex. B. The Defendant repeatedly discussed how many
“kilograms” his plane could carry. The Defendant
also discussed making numerous trips along a known drug route
for the Mexican cartel. Ex. G15:41-17:15. The Defendant even
offered his property in Mexico as a place for the cartel to
move “things.” See Trial Tr.
upon the evidence introduced at trial, it is clear that there
is absolutely no “real concern that an innocent person
may have been convicted.” United States v.
Canova, 412 F.3d 331, 349 (2d ...