Opinion
16-CR-219 (LDH)
12-06-2018
UNITED STATES of America v. Yesenia NUNEZ TAPIA, Defendant.
Ian C. Richardson, United State's Attorneys Office, Brooklyn, NY, for Plaintiff. Michael P. Padden, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.
Ian C. Richardson, United State's Attorneys Office, Brooklyn, NY, for Plaintiff.
Michael P. Padden, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.
MEMORANDUM & ORDER
LaSHANN DeARCY HALL United States District Judge
Defendant Yesenia Nunez Tapia was charged in an indictment, dated April 25, 2016, with two counts: knowingly and intentionally importing ("Count One"), and knowingly and intentionally possessing with intent to distribute ("Count Two"), a controlled substance, which offenses involved a substance containing cocaine, a Schedule II controlled substance. The indictment also included a criminal forfeiture allegation. On May 3, 2016, Defendant pleaded not guilty as to both counts.
The Court held a jury trial commencing on April 23, 2018. After summations, Defendant moved for a mistrial. (Tr. 762–63, ECF No. 68 (May 10, 2018).) The motion was denied. (Id. at 763.) On April 27, 2018, the jury returned guilty verdicts as to Counts One and Two of the indictment. Defendant moves, pursuant to Federal Rule of Criminal Procedure 33 (" Rule 33"), for a new trial. (See Def. Yesina Nunez Tapia Mem. Law Supp. Rule 33 Mot. ("Def.'s MOL"), ECF No. 74-2 (June 4, 2018).)
The facts are taken from documents and testimonial evidence adduced at trial. Citations to "Tr." refer to the trial transcript.
On December 6, 2015, Defendant traveled from the Dominican Republic to the United States aboard Delta Airlines Flight 402, arriving at John F. Kennedy Airport ("JFK"). (Tr. 250–51, 315, ECF No. 70 (May 11, 2018).) Defendant possessed two carry-on bags (a purse and rolling suitcase) and one checked bag (a larger rolling suitcase). (Id. at 280, 312–13.) As Defendant retrieved her checked bag from the baggage carousel, Officer Alexandra Garcia approached Defendant, and after conducting a brief interview, determined that Defendant was a candidate for a secondary baggage inspection. (Id. at 256, 311–12.) Defendant confirmed to Officer Garcia and Officer Timothy Lomboy that the baggage in her possession and the items therein belonged to her. (Id. at 312.) Officers Garcia and Lomboy proceeded to search Defendant's luggage, at which time Officer Garcia found a bottle of Mamajuana inside the larger checked bag. (Id. at 315.) Officer Garcia then called a team leader, Officer Rene Roman, to perform an X-ray of the Mamajuana bottle. (Id. at 257–58, 293.) The X-ray revealed what appeared to be foreign objects in the bottle. (Id. at 315–16.) Defendant was then escorted into a private secondary search area. (Id. at 316.) Once there, Officer Lomboy used a hammer to break open the bottle, exposing sixty-three pellets containing a powdery white substance, which field-tested positive for cocaine. (Id. at 321–23.) Defendant was then placed under arrest. (Id. at 297–98.)
Mamajuana is an alcoholic drink originating in the Dominican Republic. (Tr. 251–52.) To make Mamajuana, tree bark is placed inside a bottle and the bottle is then filled with liquor. (Id. ) The mixture then marinates for approximately one month before it is ready to be consumed. (Id. )
Following her arrest, Defendant was relocated to a holding cell in the Homeland Security office at JFK. (Id. at 476–77, ECF No. 71 (May 11, 2018).) Agent Andrew Kappauf, Agent Gregory Stemkowski, and Officer Garcia conducted an interview of Defendant. (Id. at 481.) During the interview, Defendant stated that while she was in the Dominican Republic, she visited a park with her friend Ramon. (Id. at 485.) While there, Ramon introduced Defendant to a man named Pito, who asked Defendant to bring the Mamajuana bottle to New York and deliver it to his friend. (Id. at 485–86.) Defendant further stated during the interview that Pito provided her with the phone number of his friend but Defendant did not know the friend's name or where he lived in New York. (Id. at 486.) Defendant restated this version of events to the Government at two subsequent proffer sessions in February and October 2016. (Id. at 646–47, 650, ECF No. 67 (May 9, 2018).)
At trial, Defendant testified that she was being untruthful during her initial interview and the subsequent proffer sessions. (Id. at 650, 665.) Defendant testified that a man she was dating who resided in the Dominican Republic, Ramon Antonio Hernandez Rodriguez, whom Defendant referred to as "Maguibe," had asked her to bring the bottle of Mamajuana back to the United States for him and deliver it to his friend. (Id. at 615–16.) She further testified that she did not know the bottle contained cocaine. (Id. at 616.)
Throughout trial, Ramon Antonio Hernandez Rodriguez was referred to as either "Maguibe" or its English translation, "My Baby." This memorandum and order shall refer to Rodriguez as "Maguibe."
STANDARD OF REVIEW
Pursuant to Rule 33, "[u]pon 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(a). The defendant carries the burden of showing that a new trial is warranted. United States v. Sasso , 59 F.3d 341, 350 (2d Cir. 1995). A district court is not bound to the inferences made by the jury and has "broad discretion" to "weigh the evidence and in so doing evaluate for itself the credibility of the witnesses." United States v. Sanchez , 969 F.2d 1409, 1413 (2d Cir. 1992) (internal quotation marks and citation omitted). However, this discretion is not an open invitation to frequently disturb the province of the jury; Rule 33 is a high hurdle. United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001) ("Generally, the trial court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority sparingly and in the most extraordinary circumstances.") (internal quotations omitted). "The test is whether it would be a manifest injustice to let the guilty verdict stand." United States v. Guang , 511 F.3d 110, 119 (2d Cir. 2007) (internal quotation marks and citations omitted). That is, "[f]or a trial judge to grant a Rule 33 motion, [s]he must harbor a real concern that an innocent person may have been convicted." Id. (internal quotation marks and citations omitted).
DISCUSSION
I. Exclusion of Julian Nunez's Testimony
At trial, Defendant sought to call Mr. Julian Nunez, Defendant's brother, to testify. (Tr. at 557.) The Court excluded the testimony as, among other things, not relevant. (Id. at 632.) Defendant maintains that the Court's ruling was erroneous. (Def.'s MOL at 15.) As a threshold matter, Defendant maintains that the Court erred because its "unexplained ruling, under Rule 401, ha[d] the effect of imposing a per se rule of irrelevancy." (Id. at 14–15.)) That is, according to Defendant, the Court impermissibly failed to explain its reasoning as to why Mr. Nunez's testimony was not relevant under Rule 401. (Id. at 15.) In so arguing, Defendant principally relies on Sprint/United Management Co. v. Mendelsohn , 552 U.S. 379, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). There, the appellant appealed the district court's "minute order [that] included only two sentences discussing the admissibility of [ ] evidence" under Rule 401. Id. at 386, 128 S.Ct. 1140. The circuit court "treated the minute order as the application of a per se rule [of] evidence[,] .... concluded that the district court abused its discretion," and made its own determination of relevance. Id. at 383, 128 S.Ct. 1140. In remanding the case, the Supreme Court held:
Applying Rule 403 to determine if evidence is prejudicial [ ] requires a fact-intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court of Appeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.
Id. at 388, 128 S.Ct. 1140. Defendant argues that, like the district court in Mendelsohn , this Court failed to engage in the requisite "context-specific" inquiry in determining that Mr. Nunez's testimony was inadmissible under Rule 401. (Def.'s MOL at 14–16.) As argued by Defendant, "[t]he record, in the case at bar, is bereft of any explanation for why the proffered evidence was not relevant under Rule 401." (Id. at 15.) This case is not at all like Mendelsohn . Indeed, Defendant's argument is obviously premised on a misapprehension of, or a blanket disregard for, the record in this case.
Even if the record in this case were similar to the record in Mendelsohn , the remedy here would not be a new trial as Defendant urges. Rather, the Court would simply clarify the basis for its ruling. See Mendelsohn , 552 U.S. at 386, 128 S.Ct. 1140 ("When a district court's language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case.").
The Court engaged in extensive discussion regarding the relevance of Mr. Nunez's testimony. Indeed, these discussions occurred on two separate occasions over the course of two trial days, on April 27 and 28, 2018. When the Court first requested a proffer from Defendant regarding Mr. Nunez's testimony, counsel stated that the testimony would "explain[ ] that Maguibe Amigo[,] six weeks prior to sending [Defendant] with a bottle of drugs[,] sent her brother with a bottle without drugs and the bottle went to [Defendant] so it dupe[d] [Defendant]." (Tr. at 680–81, ECF No. 67 (May 9, 2018).) The Court informed Defendant that such testimony "[did not] seem to have any bearing on the events at issue," was simply being offered to "bolster" Defendant's testimony, and was therefore inadmissible. (Id. at 680–82.) The following day, the Court revisited its ruling. Far from failing to engage in a "context-specific" inquiry, the Court took great pains to understand fully the scope of the proposed testimony to assess its relevance. After hearing again from Defendant, the Court communicated its understanding of Mr. Nunez's proposed testimony, as follows:
[The Court's] understanding is that [Mr. Nunez] wasn't going to be testifying at all about the events or occurrences at issue in this particular arrest, nothing dealing with the December 6th arrest, with the transportation of the Mamajuana bottle on December 6th, but [instead] that [Mr. Nunez] was being offered to testify that on an occasion two months before[,] that he, himself, had brought Mamajuana or received Mamajuana from [Maguibe] ... and that that bottle of Mamajuana did not have drugs in it.
(Id. at 689–90.) The Court further stated its understanding that the October bottle of Mamajuana was "gifted" to Defendant, whereas the December bottle was intended for a friend of Maguibe's. (Id. at 694.) Notably, the October bottle was purportedly emptied of its content by Mr. Nunez before he boarded a plane from the Dominican Republic bound for the United States. (Id. ) Defendant confirmed that the Court's understanding of the proposed testimony was correct. (Id. at 690.)
It was against this backdrop, that the Court again found that the proposed testimony by Mr. Nunez was not relevant. (Id. at 695–96.) In other words, Mr. Nunez's proposed testimony had no bearing on any fact that was "of consequence in determining the action." Fed. R. Evid. 401. Moreover, and significant to Defendant's charge here, the Court asked the parties whether its "reasoning and [its] rationale [were] clear to everyone" and stated, "I don't think it's relevant testimony." (Id. at 695–96.) Defendant's counsel responded unequivocally: "Yes." (Id. at 696.) Defendant's argument that the record is "bereft of any explanation" from the Court (Def.'s MOL at 15) fails in the face of the record.
With respect to the propriety of the Court's determination, Defendant argues that Mr. Nunez would have "establish[ed] that the explanation given by Defendant for the October 2015 texts was as she testified" and would have rebutted the Government's contention that the text messages were part of a "nefarious" scheme. (Def.'s MOL at 11.) Mr. Nunez could have done no such thing. Under Rule 602, "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. It cannot be argued that Mr. Nunez had any personal knowledge of the October text messages. Mr. Nunez was not a party to any of the October 2015 text message exchanges between Defendant and Maguibe. He could not have known what was said by either individual and as such could not confirm or rebut Defendant's explanation of their content. See Folio Impressions, Inc. v. Byer California , 937 F.2d 759, 764 (2d Cir. 1991) (stating that the test under Rule 602 is whether a reasonable trier of fact could believe the witness had personal knowledge).
Moreover, it should not go without mention that Defendant's current explanation of the relevance of Mr. Nunez's proposed testimony does not square with the proffer made at the time of the Court's ruling. Then, Defendant maintained that Mr. Nunez's testimony was relevant because it could somehow buttress Defendant's claim that she was duped by Maguibe because she derived some comfort from the fact that Maguibe had sent a bottle of Mamajuana with Mr. Nunez on a prior occasion without event. (Tr. at 680–81, 689–93.) That argument too does not hold. According to Defendant's proffer, the bottle of Mamajuana brought to the United States by Mr. Nunez had been emptied of its content before it was carried to the United States (Id. at 694), and before it was received by Defendant. Thus, Defendant could not have had any personal knowledge, one way or the other, whether the bottle contained cocaine when it was passed from Maguibe to Mr. Nunez. Hence, Mr. Nunez's proposed testimony regarding the October bottle had little to no probative value with respect to Defendant's state of mind. Instead, the introduction of Mr. Nunez's testimony could serve only to confuse the jury. This trial was not about whether at some other time another individual may or may not have transported cocaine from the Dominican Republic provided to them from Maguibe. The issue before the jury was whether Defendant knew the bottle seized from her suitcase contained cocaine. Nothing more.
II. Exclusion of Sexually Explicit Text Messages
Defendant also complains that the Court erred in excluding certain testimony during her direct examination. On this point, the Court wants to be careful to parse Defendant's argument to address specific rulings the Court actually made at trial. In her submission, Defendant maintains that the Court prevented her from "reading aloud to the jury certain texts (in Spanish)." Conspicuously absent from Defendant's submission is any record cite pointing to such a prohibition. (See generally Def.'s MOL.) In support of her argument, Defendant attaches to her motion only "sample texts ... derived from Government Exhibit 6-B," a disk containing numerous text messages between Defendant and Mr. Nunez and between Defendant and Maguibe. (Def.'s MOL, Exh. 1.) Nowhere does Defendant identify actual texts sought to be introduced and precluded by the Court in error. Nor could she. Because it did not happen.
This is not the first time Defendant has made this specious claim. At the tail end of trial, Defendant's counsel maintained: "I had asked and been denied to show my client various text communications that are in evidence, and that she engaged in between her and her boyfriend, which were in Spanish, which were not translated, and I was going to ask her to read those." (Tr. at 823.) The following colloquy ensued:
THE COURT: Okay. I want to stop you for a second. Let me stop you for a second, so the record is clear. What I ... precluded you from introducing was evidence that Ms. Nunez Tapia engaged in sex with Maguibe in the Dominican Republic. You asked also that the jurors be told that they had exchanged naked photos of each other, and that they had engaged in sexting. Those were the three specific areas that the Court ruled on. Those were the specific areas. So I need you to make sure that when you address these issues, that you actually
address evidence that I ruled on. Those were the areas.
MR. ORDEN: Yes.
THE COURT: Not what you just discussed.
MR. ORDEN: You're correct. You're just reminding me those were three specific areas that I expressed at a sidebar when an objection was made and Your Honor called us to the side. I do not remember whether during that sidebar or a previous sidebar, I indicated other reasons for wanting to ask her questions about text messages. But there were other reasons I wanted to ask her about the text messages.
THE COURT: Those were not articulated to the Court, but go ahead.
MR. ORDEN: Perhaps they weren't. I don't remember right now. But I think that that was an important piece of evidence. And the jury had it, but it was in Spanish. I was prevented from bringing it out.
THE COURT: Again, .... I'm going to correct you. You were not prevented from introducing evidence of a text message that the jury had before it in Spanish. That did not happen.
MR. ORDEN: Right. No, the evidence is in. It's in.
THE COURT: You were not prevented from examining Ms. Nunez Tapia about a text message that was in evidence that was in Spanish. That did not happen.
MR. ORDEN: Right. No, I was prevented from showing her the text message.
THE COURT: You were prevented from showing her text messages of three areas: Sexting text messages, which is what you asked to show, so you can demonstrate the deepness of their relationship, and text messages where they exchanged naked photos of each other, again, in an effort to demonstrate the deepness of their relationship, and you were precluded from being able to illicit testimony that Ms. Nunez Tapia and Maguibe engaged in sex in the Dominican Republic. Those very three, very limited bits of evidence were excluded. All right. Go ahead. Anything else?
MR. ORDEN: Well, as I recall, those are the three areas I raised during the sidebar. My understanding of your ruling was since those were the only three that I proffered at that sidebar, that Your Honor was not going to let me question her about any. That was –
THE COURT: That was your misunderstanding. I cannot rule on evidence that you don't make an effort to introduce. My ruling was specific and limited to the issues that you raised before the Court.
MR. ORDEN: No, I don't think I have anything else at this time.
(Id. at 823–26.) In sum, the purported ruling about which Defendant complains never occurred.
Having disposed of Defendant's utterly baseless argument, the Court turns to Defendant's claims with regard to rulings it made at trial. At trial, the Court precluded Defendant from introducing: (1) "sexting" text messages between Defendant and Maguibe; (2) naked photos exchanged between Defendant and Maguibe; and (3) the fact that Defendant and Maguibe engaged in sexual intercourse while at a resort in the Dominican Republic. (Id. at 625.) Admittedly, it is not altogether clear whether Defendant is challenging the Court's ruling on these areas of proposed evidence, as she makes no express mention of them in her submission. (See generally Def.'s MOL.) Nonetheless, out of an abundance of caution, the Court will address those rulings.
Defendant's trial theory was that because of Defendant's relationship with Ramon, she was easily duped into transporting cocaine inside of a Mamajuana bottle given to her without knowledge of the drugs. (Id. at 16; Tr. at 733.) Counsel effectively elicited testimony from Defendant concerning the depth of Defendant's relationship with Ramon. Among other things, Defendant testified that she referred to Ramon as "Maguibe" or "my baby" and had stored his contact information in her phone under that pet name. (Tr. at 591, 644.) Defendant further testified that she and Maguibe texted with each other "every hour, every minute." (Id. at 593.) Defendant testified that in addition to sending texts to Maguibe over the four months prior to her trip to the Dominican Republic, she also sent Maguibe photos. (Id. at 598.) Defendant testified that Maguibe "was always saying I want to see you." (Id. ) Defendant also testified that in the months leading to her trip to the Dominican Republic, Maguibe sent her gifts. (Id. ) Defendant further testified that she and Maguibe made plans to stay at a resort, rent a car, "go to clubs," and "spend a lot of time together" when she traveled to the Dominican Republic. (Id. at 614–15.) Defendant testified that she traveled to the Dominican Republic because she wanted to be with Maguibe "in a loving way," to "spend time with him," and "to see him." (Id. at 598.) Defendant also testified that it was at the resort, on their way back to their room, that Maguibe asked her to bring the bottle of Mamajuana to the United States. (Id. at 615–16.) Finally, Defendant testified that upon the discovery of the cocaine in the Mamajuana bottle, she "wanted to die, because [she] had no idea ... [that the person she] had given [her] everything to, would do so much harm to [her]." (Id. at 620–21.)
After having elicited the above testimony, Defendant's counsel sought to introduce evidence that Defendant and Maguibe had sex in the Dominican Republic and exchanged sexually explicit text messages and naked photos. (Id. at 615, 625, 631–32.) The Court ruled that such evidence was not relevant (id. at 632), and maintains so now. Whether Plaintiff had sex with Maguibe, engaged in sexting with Maguibe, and sent him naked photos of herself did not bear on facts of consequence in the action. That is, such evidence does not make it more or less probable that Defendant knew of the drugs in the bottle. See Fed. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.") That said, the Court does not disagree that the nature of Defendant's relationship with Maguibe could be probative of how susceptible she might have been to Maguibe. There was ample testimony in that regard. Testimony that went unchallenged by the Government. Thus, even if the Court had accepted Defendant's contention that evidence that Defendant engaged in sexting, exchanged naked photos with Maguibe, and had sex with him was probative of the depth of their relationship, that evidence would have been needlessly cumulative. See Tr. at 625 ("MR. ORDEN: Well, if I can say the three or four things. THE COURT: Okay. MR. ORDEN: A naked picture, they engaged in social network sex, and that there were numerous statements in the vein of, I love you, I miss you. THE COURT: We covered all that. We are not going back there again. We are not bringing up those things."); see also United States v. Gupta , 747 F.3d 111, 131 (2d Cir. 2014) (upholding district court's conclusion that, among other bases, witness's proposed testimony would be " ‘cumulative,’ given that the court had ... admitted other evidence to the same effect[,]" and therefore such evidence "would be unduly prejudicial").
To the extent Defendant argues that because Exhibit 6-B was admitted into evidence, the Court was required to allow examination of every text in the voluminous exhibit, that argument fails. As Defendant aptly points out, "once [the extraction report] was admitted[ ] in its entirety as Exhibit 6-B, as long as the proffered extractions were relevant to the defense case[,]" they could be published to the jury. (Def.'s MOL at 18.) The Court has already determined that the sexting messages and naked photos were not relevant, hence their publication was not demanded. This finding is wholly consistent with the Court's exercise of the presentation of evidence pursuant to Federal Rules of Evidence. See Fed. R. Evid. 611 ("The court should exercise reasonable control over examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment."); see also United States v. Lewis , 144 F. App'x 131, 134 (2d Cir. 2005) (summary order) ("Under Federal Rule of Evidence 611(a), trial judges are given broad discretion to manage trials in order to provide for effective presentation of evidence."); Gentile v. County of Suffolk , 129 F.R.D. 435, 458 (E.D.N.Y. 1990) ("Rule 611 requires the court to ‘exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... avoid needless consumption of time.").
At trial, the Court also found that evidence of sexting, the nude photos, and that Defendant has sexual intercourse with Maguibe should be precluded on the ground that it would confuse the jury. (Tr. at 632.) That finding was in error. However, as discussed above, the Court maintains that such evidence was not relevant, or at most, needlessly cumulative.
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CONCLUSION
For the reasons set forth above, Defendant's motion for a new trial is denied.
SO ORDERED: