Opinion
S1 05 Cr. 238 (SHS).
July 6, 2006
OPINION ORDER
On March 23, 2006, Angel Rodriguez was convicted by a jury on all three counts of the indictment with which he was charged, namely: (i) conspiring to distribute or possess with intent to distribute five kilograms or more of mixtures or substances containing cocaine and 100 grams or more of mixtures or substances containing heroin; (ii) distributing or possessing with intent to distribute five kilograms or more of mixtures or substances containing cocaine; and (iii) distributing or possessing with intent to distribute 100 grams or more of mixtures or substances containing heroin. Rodriguez now moves pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure for a judgment of acquittal or, in the alternative, for a new trial on the grounds that the evidence at trial was insufficient to support the jury's conclusion that he was guilty on all three counts. Rodriguez argues principally that there was no evidence that he knew that the transaction at issue involved narcotics and, similarly, that no evidence was presented as to his intention to distribute narcotics or enter into a conspiracy to distribute narcotics. As explained below, because there was enough evidence adduced at trial by which the jury could have found, beyond a reasonable doubt, that Rodriguez possessed the requisite knowledge and intent, his motion is denied.
I. BACKGROUND
In disposing of Rule 29 motions, the Court must examine the evidence in the light most favorable to the prosecution. United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1990) (quotingJackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). So viewed, that evidence established the following:
In January 2005, Special Agent Fausto Contreras of the Drug Enforcement Administration ("DEA") and New York City Police Detective Edward Corcoran were told by a confidential informant they had used in the past that an individual named Jose was willing to sell kilogram-level quantities of drugs. (Trial Tr. 25). Contreras and Corcoran proceeded to have the confidential informant make two telephone calls to Jose — both of which were monitored by the agents — in order to arrange a drug transaction. (Tr. 27.)
The first call to Jose was made by the confidential informant on January 26, 2005 from his own cellular telephone, with Agent Contreras listening in. (Tr. 28.) Contreras, who is a native Spanish speaker, heard Jose inform the confidential informant that he "ha[d] the five apartments available" and that he "also ha[d] a small, kind of ugly that I want you to look at." (Tr. 29-30.) Agent Contreras testified that, based on his eleven years' experience in narcotics investigations, "apartments" was a commonly-used term for kilograms of cocaine and that an "ugly" apartment was a reference to heroin. (Tr. X) The second call to Jose was placed about one week later by the informant from a DEA office and was recorded. During that phone call, Jose informed the informant that "[t]he apartment is ready" and asked the informant if he "ha[d] the receipts and everything?" (Government Exhibit 5T ("Exh. 5T"), at 2.) The two agreed to conduct the transaction at 7:00 p.m. the following day, February 3, at the parking lot of a McDonald's on the corner of 125th Street and Amsterdam Avenue in Manhattan. (Exh. 5T, at 4.) Jose, the seller, stated that "the guys" would be appearing on his behalf. (Exh. 5T, at 4.)
The recording, which was in Spanish, was played to the jury. In addition, the jury was provided with an English translation whose correctness had been stipulated to by the parties.
Though the transcript does not refer to a particular McDonald's, Agent Contreras testified that he and Detective Corcoran had instructed the informant to arrange for the transaction at that McDonald's. (Tr. 34-35.)
At 7:30 p.m. on February 3, Agent Contreras, Detective Corcoran, and other police personnel met the confidential informant in the vicinity of Grant's Tomb on 122nd Street in Manhattan. (Tr. 36.) The informant was searched and fitted with a digital recording device. (Tr. 39-40.) He was instructed that once he received the drugs, he was to call Agent Contreras's cell phone and tell him to "bring over the tickets." (Tr. 41.) Agent Contreras testified that "tickets" was a common reference to U.S. currency that "would not raise an eyebrow to the individual that is dealing with [the informant]." (Tr. 41.) The informant then proceeded to the pre-arranged McDonald's meeting, and the agents conducted surveillance from nearby. (Tr. 41-42.)
When the informant arrived at the parking lot, he entered a livery cab that belonged to the defendant, who was in the driver's seat. (Tr. 186.) The two commenced a discussion — recorded and played for the jury — regarding a box on the back seat of the cab. (Government Exhibit 10T ("Exh. 10T.")) The label on the box indicated that it contained sound equipment. (Tr. 179.) The discussion, in part, proceeded as follows:
Informant: Everything's under control? Is everything here then? Rodriguez: Just go on your merry way. Informant: Uh . . . Wher . . . Where's this one? Rodriguez: [U/I] you check it when you get there. I don't know anything about that . . . I don't even open that one. You open it over there. Informant: It should be . . . all . . . Was it all there? Rodriguez: Man, you'll check that over there. Of course it's all there. Just as you ordered it. Informant: OK. What about Jose Alfredo? Rodriguez: Boss, I don't know. What are you talking about? Informant: I also had to give him something. Rodriguez: You guys can talk in a bit. All right? (Exh. 10T, at 1-2.) The informant then told Rodriguez that he had "tickets" to give him for Jose, to which Rodriguez responded that the informant should call Jose. (Exh. 10T, at 3.) Rodriguez, whose tone of voice on the recording could have been interpreted by the jury to reflect agitation, then insisted that the informant remove the box from the car: Rodriguez: Take that shit . . . Take them out, man. Take them out and call him when you take it out. Informant: Shit. Just give me a second. That's it. Rodriguez: Take it out and put it in your car, man. Informant: But, it's right here. Take it easy. . . . Relax. Nobody knows anything. Rodriguez: No. Take it out. Informant: Just give me a second. Let me look for the phone. Rodriguez: I said no. Take it out. Informant: Give me a second, to take out . . . Rodriguez: No, no, buddy. Take it out. Informant: To call him. Rodriguez: Take that box out of there. All right? (Exh. 10T, at 4.) The informant then removed the box from Rodriguez's automobile. (Exh. 10T, at 5-6.) The informant again told Rodriguez that he had "tickets" to give him, and then, while still in Rodriguez's cab, the informant called Agent Contreras to tell him to "[b]ring the tickets." (Exh. 10T, at 7.) Rodriguez then asked the informant if he had spoken to "them." (Exh. 10T, at 8.) The recorded conversation ended as follows: Rodriguez: So, go to the car, you guys talk and if . . . if anything. . . Informant: Since he said to me, "Give him some of the tickets for me." That's why. Rodriguez: C'mon, pass it over. Informant: Huh? (Exh. 10T, at 8.) Shortly after the conversation ended, the police arrived and arrested Rodriguez. (Tr. 44, 106-08.) Detective Corcoran opened the box, which contained a hollowed-out stereo filled with what appeared to be a large quantity of drugs. (Tr. 106-07.) At the DEA office, Rodriguez was read his Miranda warnings in Spanish, whereupon he proceeded to waive his Miranda rights and speak to Detective Corcoran and DEA Agent Philip Klemick. (Tr. 109, 112.) According to Detective Corcoran and Agent Klemick, Rodriguez told them that he was at the McDonald's because a male Hispanic who he had picked up in the Bronx asked him to stop there for food en route to 86th Street and Amsterdam Avenue. (Tr. 121.) Rodriguez said that he was waiting for the man to return when the police came and that he had never seen the box that was on the ground next to his cab. (Tr. 122.)In addition to the recordings and transcripts and the testimony of Agents Contreras and Klemick and Detective Corcoran, the government at trial introduced Rodriguez's cell phone records. (Government Exh. 35.) They reflect that on 6:41 p.m. of the night of his arrest, a telephone call was placed to Rodriguez's phone from the phone number where the confidential informant had contacted Jose; Rodriguez's phone was then used three times in quick succession to call the informant's phone: at 7:17 p.m., 7:21 p.m., and 7:32 p.m. Finally, 13 calls were placed during the period January 26, 2005 to February 3, 2005 between Rodriguez's phone and the phone number where the confidential informant had contacted Jose.
Rodriguez testified on his own behalf at trial. He stated that he was a livery cab driver and that at about 6:40 on the night in question, a passenger whom he had driven four or five times in the past called him to be picked up at the corner of "Fordham and Sedgwick." (Tr. 176, 179.) He stated that he did not know the passenger by name when he picked him up on February 3, but had since come to know the passenger as Jose. (Tr. 178, 181.) When Rodriguez arrived at that location, Jose placed the box in his car and directed him to go to 86th Street and Broadway and to make a stop at 125th Street along the way. (Tr. 179.) Rodriguez testified that he did not discuss the box with Jose and that it appeared to him to be "a box with some stereo equipment." (Tr. 179.) In the cab, according to Rodriguez, Jose asked Rodriguez to dial a phone number using Rodriguez's cell phone and to "tell my friend that I'll be there in three minutes," which Rodriguez did. (Tr. 181.) When the pair arrived at the McDonald's, Rodriguez said, he was asked again to call the phone number to tell the person on the line that they were already there, which he did. (Tr. 182.) At that point, according to Rodriguez, Jose left to talk to his friend and told Rodriguez that his friend would come to pick up the box later and that when that occurred, he should call Jose, who would return to be taken to 86th Street. (Tr. 182-83) Rodriguez testified that after some time passed and neither Jose nor his friend showed up, he called the number again to ask if Jose would be returning soon; the person on the other end of the line (i.e., the confidential informant) told him to wait and that he would arrive in one minute. (Tr. 184-85.)
Shortly thereafter, the confidential informant entered the cab and the taperecorded conversation and box transfer commenced. In his testimony, Rodriguez emphasized that his comments such as "it's all there" and "take it" were the innocuous remarks of a nervous cab driver who did not know anything about the contents of the box in his back seat and who simply wanted Jose's friend to remove that box so that he could proceed with his job of taking Jose to 86th Street. Rodriguez characterized his comments as conveying to the informant: "Look, brother, what I am is a taxi driver. This man, what he told me is that you were going to come and pick up that box. Take your box, because what I have to do is go work." (Tr. 190.)
II. DISCUSSION A. The Legal Standard
Rule 29(c) of the Federal Rules of Criminal procedure provides that a court may set aside a jury verdict and enter a judgment of acquittal when "the evidence is insufficient to sustain a conviction." As noted above, guilty verdicts cannot be overturned if "after viewing the evidence in the light most favorable to the prosecution . . . [the court concludes that] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Pitre, 960 F.2d at 1120 (quotingJackson v. Virginia, 443 U.S. at 319) (internal quotation marks omitted). In general, the Court must give deference to "the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). However, where the evidence is entirely circumstantial and "gives equal or nearly equal support to a theory of guilt and a theory of innocence, a reasonable jury must necessarily entertain a reasonable doubt." United States v. Martinez-Sandoval, 01 Cr. 307, 2003 U.S. Dist. LEXIS 3045, at *15 (S.D.N.Y. Mar. 5, 2003) (quoting U.S. v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)); see also United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002).
Pursuant to Rule 33, a court may vacate a judgment of conviction and grant a new trial "if the interest of justice so requires." Fed.R.Civ.P. 33(a); see also United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992) (new trial warranted where there is a need to "avert a perceived miscarriage of justice"). In evaluating a motion pursuant to Rule 33, the Court is to "examine the entire case, take into account all facts and circumstances, and make an objective evaluation" of whether the record supports the jury verdict, United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001), careful to "strike a balance between weighing the evidence and credibility of witnesses and not `wholly usurping' the role of the jury," id. at 133 (quoting United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000)).
B. The Substantive Counts
Although defendant's attorney does not separately parse out the substantive counts from the conspiracy count, and while the underlying disputes as to both convictions are similar, the Court will examine the substantive counts separately from the conspiracy count because different elements are implicated by each.
In terms of the two substantive offenses, Rodriguez was convicted pursuant to 28 U.S.C. 841 of two counts of knowingly distributing and possessing with intent to distribute the requisite (and unchallenged) quantities of cocaine and heroin. In making this motion for acquittal or for a new trial, Rodriguez argues that his conviction on these counts cannot stand because the government did not prove that he knew narcotics were in the stereo box and, correspondingly, did not prove that he intended to distribute those narcotics. Rodriguez asserts that his tape-recorded comments clearly indicate his lack of knowledge of the box's contents and that any other conclusion would be the result of pure speculation. Without citing any relevant case law, he argues in essence that the circumstantial evidence of the defendant's knowledge and intent was in equipoise such that any rational juror must have had a reasonable doubt as to those required elements. See Glenn, 312 F.3d at 70.
Though the evidence as to Rodriguez's knowledge was purely circumstantial, it did not give "equal or nearly equal support to a theory of guilt and a theory of innocence,"Rodriguez-Sandoval, 01 Cr. 307, 2003 U.S. Dist. LEXIS 3045 at *1; nor must the jury's verdict have resulted from sheer speculation rather than from reasonable inferences from the facts presented at trial. It is true that, given that the drugs were located inside a stereo that was in turn inside a box in the back seat of the cab, the mere presence of those drugs would be insufficient in this case to support an inference that Rodriguez knew what he was transporting. However, the jury could have found from the comments made by Rodriguez to the informant and from the nervous tone of those comments that Rodriguez was aware of what he was doing. Rodriguez's continued insistence that the informant "take it out" and "take the shit out" support the inference that he knew he was transacting in contraband. Furthermore, while Rodriguez's reference to "shit" does not necessarily indicate that he was aware that the contraband consisted of drugs in particular, see United States v. Idowu, 157 F.3d 265, 268 (reference to "the stuff" does not support an inference of knowledge of drugs because "stuff" "can describe a variety of contraband"), his acknowledgment to the informant that "[i]t's all there, just as you ordered it" does support an inference that he was referring to drugs. Finally, Rodriguez's eventual directive for the informant to "pass it over" in reference to "the tickets" — a phrase that Agent Contreras testified was a common reference in narcotics transactions to money — is also probative of his knowledge of the drug-related nature of the transaction. Though Rodriguez denied all of this and told the jury he was an unwitting player in a scheme entirely of Jose's making, the jury was entitled to discredit that explanation and instead infer that he possessed the requisite mens rea.
If knowledge is established, intent in this case follows. Even Rodriguez acknowledged consciously transferring the box to the informant, and his continued insistence that the informant "take" the box renders it unlikely that he did not intend to transfer the box. If Rodriguez knew what was in the box, as the jury was entitled to find, and intentionally distributed the box to the informant, as is clear, then he knowingly and intentionally distributed narcotics.
In sum, Rodriguez's actions and recorded words makes his conviction substantially different from those drug-related convictions — overturned on appeal — in which the defendant was merely present at the scene of a drug transaction. See, e.g., Idowu, 157 F.3d 265, 268-70; United States v. Cruz, 363 F.3d 187, 190-91, 198-99 (2d Cir. 2004); cf. United States v. Samaria, 239 F.2d 228, 235-38 (2d Cir. 2001).
Finally, the jury's inference of intent was able to be bolstered by the false exculpatory statements that Rodriguez gave to Detective Corcoran and Agent Klemick after his arrest. Although false exculpatory statements are an insufficient basis on which exclusively to decipher knowledge, they "may strengthen an inference already supplied by specific indicia of knowledge and intent." Samaria, 239 F.3d at 236. According to Detective Corcoran, Rodriguez told him that he did not know anything about the box found beside his car and had never seen it before. (Tr. 122.) The tape recording demonstrates this to be false, and the jury could have used this falsehood as further evidence of Rodriguez's guilty state of mind. C. Conspiracy
In order to be convicted of conspiracy to distribute cocaine and heroin, Rodriguez must have been found to have agreed with another person — explicitly or implicitly — to distribute narcotics, and must have both known the object of the conspiracy and intended to accomplish the unlawful ends of the conspiracy.See United States v. Wilner, 523 F.2d 68, 73 (2d Cir. 1975);United States v. Lopac, 411 F. Supp. 2d 350, 360 (S.D.N.Y. 2006). The Court has already noted that the jury reasonably found that Rodriguez was aware he was distributing narcotics. The issues of dispute are therefore whether he distributed drugs pursuant to an agreement and whether he purposefully furthered the unlawful ends of that agreement.
Here, the jury was entitled to find that Rodriguez's distribution of narcotics was pursuant to an agreement. Even Rodriguez's version of events — though different in terms of his state of mind — involved actions performed at the behest of Jose. Beyond that, Rodriguez arrived at the very time and place pre-arranged by Jose, and Rodriguez's phone records reflect 13 calls with Jose between the time that that transaction was first discussed and the time it eventually occurred. These facts support an inference that the transaction was consummated pursuant to an agreement between he and Jose. Cf. United States v. Vargas, 02-Cr.-1388, 2003 U.S. Dist. LEXIS 11951, at *10 (S.D.N.Y. July 10, 2003) (records of phone calls to members of conspiracy, among other evidence, supported finding that the defendant joined the conspiracy).
Finally, the jury could have rationally found that Rodriguez intended to further the unlawful ends of the conspiracy. To have done so, Rodriguez must have "in some sense promote[d] the venture himself, ma[de] it his own, [or] ha[d] a stake in its outcome." United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940), aff'd 311 U.S. 205, 61 S. Ct. 204, 85 L. Ed. 128 (1940);see also United States v. Ceballos, 340 F.3d 115, 127-28 (2d Cir. 2003). As the Court has noted, the jury rationally concluded that Rodriguez intended to distribute drugs and that he did so pursuant to an agreement; all that was required to reach the further conclusion that he intentionally furthered the unlawful objectives of his agreement was that he was not "indifferent" to the transfer, i.e. that he intentionally promoted Jose's drug transaction. See United States v. Torres, 901 F.2d 205, 220, 244-45 (2d Cir. 1990); cf. Lopac, 411 F. Supp. 2d at 364, 368-69.
Rodriguez argues that there was no evidence that he shared an interest in the transaction and that the evidence pointed to the contrary because he told the informant that he did not know Jose and did not know anything about "the tickets." It is true that the traditional indicia of intent — viz., receipt of financial remuneration, explicit confirmation of unlawful activity, exercise of authority within conspiracy, see Samaria, 239 F.3d at 235-36 (listing examples of facts that support finding of intent to participate in conspiracy) — were not present here. However, the jury could rationally have concluded that Rodriguez was not indifferent to the outcome of his venture, and need not have taken his claimed lack of association with Jose — both at trial and in the recorded conversation — at face value. Given that Rodriguez (i) acknowledged the informant's "order" (Exh. 10T, at 1-2); (ii) placed three phone calls to the informant in the moments leading up to the transaction and was in frequent telephone contact with Jose, the seller, in the week leading up to the transaction; and (iii) eventually agreed to take the "tickets," the jury could have concluded that Rodriguez was not indifferent to a transaction entirely of Jose's making but was instead actively participating in that transaction. D. Rule 33 Motion
As set forth above, the jury was entitled to conclude beyond a reasonable doubt that Rodriguez was aware of the illicit nature of his activity. Rodriguez advances no arguments in favor of his Rule 33 motion for a new trial separate from those advanced to further his Rule 29 motion for a judgment of acquittal, and the Court accordingly concludes that the interests of justice do not require a new trial pursuant to Rule 33.
III. CONCLUSION
For the foregoing reasons, Rodriguez's motion for a judgment of acquittal or for a new trial is hereby denied.
SO ORDERED.