United States District Court, S.D. New YorkAug 22, 2003
S1 02 Cr. 664 (TPG) 88945 (S.D.N.Y. Aug. 22, 2003)

S1 02 Cr. 664 (TPG) 88945

August 22, 2003


THOMAS GRIESA, Senior District Judge

Defendant moves under Fed.R.Crim.P. 29(c)(1) for a judgment of acquittal, or, in the alternative, under Fed.R.Crim.P. 33 for a new trial. The motion for a judgment of acquittal is denied. The motion for a new trial is granted.

The legal standards applicable to these motions are familiar and the court bases its rulings on these standards.

The court will not discuss the first of the two motions except to say that defendant has not shown that the standard is met for going as far as granting him a post-verdict acquittal.

As to the new trial motion, the court is convinced that a retrial is required to prevent a serious miscarriage of justice.

Defendant is charged with being part of a conspiracy to sell crack cocaine and with aiding and abetting such selling. One problem with the Government's evidence is that the location of the crack distribution was under heavy surveillance for about a year and there were 28 undercover buys, but there was no evidence that during this time defendant was even seen at the location in question except on one occasion. And the evidence about this one occasion is problematic. The Government's evidence is that defendant took an undercover police officer to an apartment where the undercover made a buy. Defendant did not sell or deliver drugs to the undercover. Defendant did not handle any drugs or money.

A crucial issue about this single incident was discussed for the first time near the end of the trial, before the summations. Defense counsel asked for an instruction to the jury that defendant could not be a part of the charged conspiracy to sell crack if all defendant was doing was trying to buy crack for himself or assisting a buyer or buyers. After discussion, it was agreed that this was the law. The issue was discussed in the summations, and appropriate instructions were given both on the conspiracy and aiding and abetting counts.

The issue was a pivotal one, and it was of considerable difficulty. A strong argument could be made that the evidence affirmatively indicated that all defendant was doing was trying to obtain crack cocaine for himself, and was trying to do so by helping a buyer obtain crack. The idea that defendant was only assisting a buyer and was not involved with the sellers (as charged) was supported by the fact that in a year-long surveillance, with 28 undercover buys, defendant had never been observed at the scene, to say nothing of being observed doing anything to help carry out the distribution conspiracy, except that he was present on this one occasion. Even as to this one incident, there was a strong argument that the defendant's conduct was at least ambiguous with respect to whether he was doing something to help the sellers or was merely helping a would-be buyer. Of course, ambiguity is not proof beyond a reasonable doubt.

In connection with the matters just described, the court has concluded that there was a serious flaw in the trial. It was essential that the jury be informed at the very start of the trial that defendant could only be convicted if he was conspiring with or aiding and abetting the sellers, and could not be convicted for simply attempting to buy for himself or attempting to help another person to buy. The jury should have known of this fundamental issue from the start so that they could consider what the evidence meant on this crucial issue. But the jury was oblivious to this pivotal matter the whole time they were hearing the evidence. Due to the difficulty and subtlety of the issue, the failure to have the issue before the presentation of evidence was a fundamental defect in the trial.

In reaching this conclusion the court is not criticizing or faultfinding as to any of the trial participants. Counsel obviously considered carefully what positions they wished to assert in opening to the jury. Regardless of this, there can be no fair trial for defendant in this case unless the jury has a reasonable knowledge of what the controversy is about when it is hearing the evidence.

Although care must be taken to avoid a miscarriage of justice in any criminal trial, surely there is a need for diligence where the potential penalty is as great as it is in this case. The Government has filed a prior felony information, which would apparently result in a minimum sentence of 10 years in prison if the defendant is convicted.

The court is familiar with the record as a whole, and no phase of the evidence mitigates against the conclusions set forth above.

The motion for judgment of acquittal is denied. The motion for a new trial is granted.