Opinion
S7 03 Cr. 1315 (LAK).
June 29, 2005
ORDER
These defendants were convicted by a jury of conspiracy to distribute and possess with intent to distribute 5 kilograms and more of cocaine, attempting to distribute and possess with intent to distribute 5 kilograms and more of cocaine, conspiracy to commit robbery, and possessing a handgun in furtherance of the robbery conspiracy. Each has moved for judgment of acquittal and for a new trial pursuant to Fed.R.Crim.P. 29 and 33, respectively.
The motions are denied, substantially for the reasons set forth in the government's letter brief dated May 23, 2005. The Court adds the following comments.
First, Ruiz's motion depends almost entirely on the premise that the testimony of Calixto Ibarguen, the cooperating witness who testified to Ruiz's joinder in the conspiracy, was not credible. There may be a case in which a witness' testimony is so patently incredible as to be unworthy of consideration in determining whether the government offered proof legally sufficient to justify a conviction beyond a reasonable doubt, but this is not it. Ruiz's counsel ably attacked Ibarguen's testimony, but it ultimately was within the province of the jury to determine whether and to what extent to believe him. Nor is the Court so persuaded by Ruiz that it regards a new trial as warranted.
Second, Cuevas, against whom the evidence of guilt was compelling, relies heavily on evidentiary rulings in support of his motion for a new trial. At least two of the instances, the Court — contrary to the implication of his motion — ruled in his favor at trial. There is no substantial basis for his motion.
The motions of defendants Cuevas and Ruiz for judgments of acquittal or for new trials are denied.
SO ORDERED.