United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge.
decision resolves post-trial motions filed by defendants
Aljermiah Mack and Anthony Ellison.
September 16, 2019, the Court presided over the
defendants' jury trial, involving charges arising from
their alleged participation, with others, in the Nine Trey
Gangsta Bloods criminal enterprise (“Nine Trey”).
On September 25, 2019, at the close of the Government's
case, the Court denied motions from the defendants for
judgments of acquittal, pursuant to Federal Rule of Criminal
Procedure 29(a). On October 3, 2019, the jury returned its
verdict. It convicted both defendants on Count One, charging
participation in a racketeering conspiracy, in violation of
18 U.S.C. § 1962(d). It also convicted Mack of Count
Six, charging him with narcotics conspiracy, in violation of
21 U.S.C. §§ 846 and 841(b)(1)(A), specially
finding with respect to that Count that Mack had conspired to
distribute and possess with intent to distribute one kilogram
and more of mixtures and substances containing a detectable
amount of heroin. It also convicted Ellison of Count Two,
charging him with kidnapping in aid of racketeering in
connection with the July 22, 2018 kidnapping of Daniel
Hernandez, in violation of 18 U.S.C. §§ 1959(a)(1)
and 2, and Count Five, charging him with maiming and assault
with a dangerous weapon in aid of racketeering in connection
with the October 24, 2018 slashing of Mark Hobdy, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii),
and 2. The jury acquitted Mack of Count Seven, which charged
him with using firearms in furtherance of Count Six, and
Ellison of Count Three, which charged him with assault with a
dangerous weapon in aid of racketeering in connection with
the July 22, 2018 incident.
December 2, 2019, Mack timely moved for a judgment of
acquittal under Rule 29(c). This motion was limited to the
jury's special finding with respect to Count Six as to
drug weight. Dkt. 378 (“Mack Mem.”). The same
day, Ellison timely moved, as to all three counts on which he
was convicted, for a judgment of acquittal under Rule 29(c),
or, in the alternative, for a new trial under Federal Rule of
Criminal Procedure 33. Dkt. 376. On December 3, 2019, Ellison
filed a brief in support of his motion. Dkt. 380
(“Ellison Mem.”). On December 23, 2019, the
Government opposed the motions. Dkt. 401 (“Gov.
reasons that follow, the Court denies both defendants'
Governing Legal Standards
Rule 29 Motions
grant a motion for acquittal under Rule 29, a Court must find
that the evidence was legally insufficient to establish the
defendant's guilt beyond a reasonable doubt. See
Fed. R. Crim. P. 29. “A defendant challenging the
sufficiency of the evidence that was the basis of his
conviction at trial bears a heavy burden.” U.S. v.
Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (citation
omitted); U.S. v. Desena, 287 F.3d 170, 177 (2d Cir.
2002). “The question is not whether this Court believes
that the evidence at trial established guilt beyond a
reasonable doubt, but rather, whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” U.S. v. Mi Sun
Cho, 713 F.3d 716, 720 (2d Cir. 2013) (per curiam)
(emphasis in original) (internal citations omitted). In a
close case, where “either of the two results, a
reasonable doubt or no reasonable doubt, is fairly possible,
the court must let the jury decide the matter.”
U.S. v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)
(citation omitted). It is not the trial court's role to
“substitute its own determination of . . . the weight
of the evidence and the reasonable inferences to be drawn for
that of the jury.” U.S. v. Guadagna, 183 F.3d
122, 129 (2d Cir. 1999) (quoting Curley v. United
States, 160 F.2d 229, 232 (D.C. Cir. 1947)).
Accordingly, a “court may enter a judgment of acquittal
only if the evidence that the defendant committed the crime
alleged is nonexistent or so meager that no reasonable jury
could find guilt beyond a reasonable doubt.” U.S.
v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (citation
considering the sufficiency of the evidence supporting a
guilty verdict, the Court must view the evidence in the light
most favorable to the Government, with all reasonable
inferences drawn in its favor. See Hawkins, 547 F.3d
at 70; Mi Sun Cho, 713 F.3d at 720; U.S. v.
Howard, 214 F.3d 361, 363 (2d Cir. 2000) (“[We]
resolve all inferences from the evidence and issues of
credibility in favor of the verdict.”). “[T]he
task of choosing among competing, permissible inferences is
for the [jury], not for the reviewing court.” U.S.
v. McDermott, 245 F.3d 133, 137 (2d Cir. 2001).
Moreover, the Court must analyze the pieces of evidence
“not in isolation but in conjunction, ” U.S.
v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994), and must
apply the sufficiency test “to the totality of the
government's case and not to each element, as each fact
may gain color from others, ” Guadagna, 183
F.3d at 130. See also U.S. v. Reyes, 302 F.3d 48, 53
(2d Cir. 2002) (“[W]e consider the evidence as a
credibility of a testifying witness is particularly within
the province of the jury, not a reviewing court. See U.S.
v. O'Connor, 650 F.3d 839, 855 (2d Cir. 2011)
(“It is the province of the jury and not of the court
to determine whether a witness who may have been inaccurate,
contradictory and even untruthful in some respects was
nonetheless entirely credible in the essentials of his
testimony.” (internal quotation marks omitted)). For
these reasons, the Second Circuit has emphasized that
“the proper place for a challenge to a witness's
credibility is ‘in cross-examination and in subsequent
argument to the jury, not in an appellate brief.'”
U.S. v. Roman, 870 F.2d 65, 71 (2d Cir. 1989)
(quoting U.S. v. Friedman, 854 F.2d 535, 558 (2d
Cir. 1988)). It is for the jury to decide how those arguments
bear on “the weight [it] should accord to the
evidence.” U.S. v. Truman, 688 F.3d 129, 140
(2d Cir. 2012).
jury is, further, permitted to give substantial weight to a
single witness's testimony. “A conviction may be
sustained on the basis of the testimony of a single
accomplice, so long as that testimony is not incredible on
its face and is capable of establishing guilt beyond a
reasonable doubt.” U.S. v. Diaz, 176 F.3d 52,
92 (2d Cir. 1999) (internal quotation marks omitted).
“Any lack of corroboration of an accomplice's or
co-conspirator's testimony goes merely to the weight of
the evidence, not to its sufficiency, and a challenge to
‘[t]he weight is a matter for argument to the jury, not
a ground for reversal on appeal.'” Id.
(quoting Roman, 870 F.2d at 71).
deference accorded to the jury's verdict “is
especially important when reviewing a conviction of
conspiracy . . . because a conspiracy by its very nature is a
secretive operation, and it is a rare case where all aspects
of a conspiracy can be laid bare in court with the precision
of a surgeon's scalpel.” U.S. v. Pitre,
960 F.2d 1112, 1121 (2d Cir. 1992) (internal quotation marks
omitted). “A conspiracy need not be shown by proof of
an explicit agreement but can be established by showing that
the parties have a tacit understanding to carry out the
prohibited conduct, ” U.S. v. Samaria, 239
F.3d 228, 234 (2d Cir. 2001), abrogated on other grounds
by U.S. v. Huezo, 546 F.3d 174, 180 n.2 (2d Cir. 2008),
and can be shown based on circumstantial evidence alone,
U.S. v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993).
See also U.S. v. Glenn, 312 F.3d 58, 64 (2d Cir.
2002) (“[T]he prosecution may prove its case entirely
by circumstantial evidence so long as guilt is established
beyond a reasonable doubt.”); U.S. v.
Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir. 1991)
(“Membership in the conspiracy may be proved entirely
by circumstantial evidence.”). For example, a
defendant's “knowing and willing participation in a
conspiracy may be inferred from . . . [his] presence at
critical stages of the conspiracy that could not be explained
by happenstance, or a lack of surprise when discussing the
conspiracy with others.” In re Terrorist Bombings
of U.S. Embassies in E. Afr., 552 F.3d 93, 113 (2d Cir.
2008) (internal quotation marks and citation omitted).
in a criminal case, a conviction on one count of an
indictment may not be challenged merely because it is
inconsistent, or in tension, with an acquittal on another
count. See U.S. v. Powell, 469 U.S. 57, 67 (1984);
Dunn v. United States, 284 U.S. 390, 393 (1932). As
the Second Circuit has explained, “[a] court knows only
what the jury's verdicts were, not what the jury found,
and it is not within the province of the court to attempt to
determine the reason or reasons for verdicts that are
inconsistent.” U.S. v. Acosta, 17 F.3d 538,
546 (2d Cir. 1994); see also U.S. v. Chang An-Lo,
851 F.2d 547, 560 (2d Cir. 1988) (rejecting challenge based
on inconsistent verdicts on racketeering and narcotics
conspiracy counts). That is particularly so when courts have
no way of knowing whether a verdict is the result of a
“mistake, compromise, or lenity.”
Powell, 469 U.S. at 65; see also Id. at 66
(“We also reject, as imprudent and unworkable, a rule
that would allow criminal defendants to challenge
inconsistent verdicts on the ground that in their case the
verdict was not the product of lenity, but of some error that
worked against them.”).
Rule 33 Motions
Rule 33 provides that a “court may vacate any judgment
and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). The Rule confers
broad discretion upon a trial court to “set aside a
jury verdict and order a new trial to avert a perceived
miscarriage of justice.” See U.S. v. Sanchez,
969 F.2d 1409, 1413 (2d Cir. 1992). In exercising its
discretion, however, the court must be careful not to wholly
usurp the role of the jury, and should defer to the
jury's assessment of witnesses and resolution of
conflicting evidence unless “exceptional circumstances
can be demonstrated.” Id. at 1414. Ultimately,
the court must decide “whether letting a guilty verdict
stand would be a manifest injustice.” See U.S. v.
Ferguson, 246 F.3d 129, 134 (2d Cir. 2001). The court
should “examine the entire case, take into account all
facts and circumstances, and make an objective
evaluation.” Id. After doing so,
“[t]here must be a real concern that an innocent person
may have been convicted” in order to grant the motion.
Sanchez, 969 F.2d at 1414. The court's Rule 33
authority should be used “sparingly” and only
“in the most extraordinary circumstances.”
Ferguson, 246 F.3d at 134.
Court assumes familiarity with the evidence adduced at trial.
The discussion that follows presents only the evidence