Opinion
S1 05 Cr. 1077 (PKL).
September 20, 2007
MICHAEL J. GARCIA, ESQ., United States Attorney for the Southern District of New York, New York, NY, Miriam E. Rocah, Esq.,Attorney for United States.
MUSTAFA OZSUSAMLAR, #18188-050, MDC BROOKLYN, Metropolitan Detention Center, Brooklyn, NY, Pro Se Defendant.
MR. MARTIN J. SIEGEL, ESQ., Law Offices of Martin J. Siegel, New York, NY, Standby Attorney for Defendant.
OPINION AND ORDER
On April 20, 2006, following a one-week trial, defendants Mustafa Ozsusamlar ("Mustafa") and Osman Ozsusamlar ("Osman") were convicted by a jury of one count of conspiracy to commit a murder-for-hire, in violation of 18 U.S.C. § 1958(b); one count of murder-for-hire, in violation of 18 U.S.C. § 1958; and one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951.
Following the verdict, while still represented by his trial counsel, Barry Turner, Esq., Mustafa sent numerous communications directly to the Court regarding his representation as well as his concerns about and challenges to the jury verdict. Based on Mustafa's written requests, the Court held conferences on August 26, 2006, March 20, 2007, April 4, 2007, and June 5, 2007 to discuss his concerns. At the April 4, 2007 conference, the Court granted Mustafa's request to proceed pro se.
Citations to the transcripts from these conferences are designated by "([m/d] Tr.)" while citations to the transcript from the Trial are designated by "(Tr.)". Citations to "(Gov't Ex.)" or "(Gov't Exs.)" are to exhibits admitted at trial.
In addition, on June 5, 2007, the Court granted Mustafa's request for a hearing in order to place on the record evidence regarding certain of Mustafa's pro se motions, including a request for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and for dismissal of the charges against him pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. That hearing was conducted on August 14, 2007.
Based on careful consideration of the parties written submissions as well as the evidence presented at the Aug. 14 Hearing, and for the reasons set forth below, Mustafa's motions are DENIED.
BACKGROUND
I. The Evidence at Trial
The defendants are father and son; Mustafa is the father and Osman is the son. They were convicted as the result of a scheme, brought to light through the use of an undercover agent and a government informant, in which Mustafa and Osman conspired to hire someone to collect a debt from, and subsequently to murder, a husband and wife (the "Batcas" or "Victims"). Based on the Government's evidence, which included witness testimony and audiotape recordings and transcripts, the jury found the defendants guilty of murder-for-hire, conspiracy to commit murder-for-hire, and conspiracy to commit extortion.
Specifically, the evidence at trial established that Mustafa told a cooperating witness named Mohamed Mabrouk at the Metropolitan Correction Center (the "MCC") that he sought assistance in locating someone who could kill a person who owed him approximately $283,000, offering to pay the killer ten percent of the money collected. (Tr. 142:7-14, 152:7-21.) Mabrouk indicated to Mustafa that he was interested in the job, and then reported this conversation to the Government. (Tr. 143:22-148:4.) Mabrouk, at the Government's behest, provided Mustafa with the telephone number for a Federal Bureau of Investigations ("FBI") agent who, using the name "Joe," posed as Mabrouk's associate by pretending to arrange for the collection of the debt and the murder of the Batcas. (Tr. 60:3-61:18, 160:1-161:11.) Mustafa passed on this information to his son, Osman (Gov't Exs. 13, 13T; Tr. 63:3-18), who then had a number of conversations with "Joe" regarding the scheme (Gov't Exs. 21-22, 21T, 22T-1, 22T-2). Finally, "Joe" called Osman to tell him that the job was done and that he had the money, and the two made arrangements to meet. (Gov't Exs. 23, 23T-2, 23T-3; Tr. 320:5-321:18; 324:9-325:15.) Osman was arrested when he arrived at the agreed-upon location that night (Tr. 326:17-19, 410:16-411:7), and subsequently made a number of admissions and false exculpatory statements (Tr. 411:9-414:6). Mustafa was arrested the following day. (Tr. at 416.) As Mustafa was being arrested and processed, the FBI conducted a search of his jail cell at the MCC, pursuant to a search warrant, and found two pieces of paper containing the name and phone number for the Victims, as well as the name "Joe" along with his phone number. (Gov't Exs. 1, 2-A.)
Mustafa was incarcerated at the MCC while awaiting sentencing on a different matter at the time that he first had this discussion with Mabrouk. He remained incarcerated there during the investigation into the matter before this Court, as well as during the trial.
II. Post-Trial Activity
Mustafa is currently proceeding pro se with Mr. Martin Siegel, Esq. from the Criminal Justice Act panel as standby counsel. The Court granted Mustafa's request to proceed pro se on April 4, 2007, at a conference in which the Court warned Mustafa for the second time of the perils of representing himself, as set forth in United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995). At that conference, the Court also informed Mustafa that he could not retry his case (4/4 Tr. at 12; see also 3/20 Tr. at 25), but that he would be able to raise many of his issues on appeal (4/4 Tr. at 13-14; see also 8/28 Tr. at 15-16; 3/20 Tr. at 13).
The Court first addressed these considerations with Mustafa at a conference held on August 28, 2006. However, at that conference Mustafa decided that he would prefer new counsel to be appointed rather than to proceed pro se. Thus, at that time the Court appointed Mr. Siegel as Mustafa's counsel. (8/28 Tr. at 19.)
In addition, since his conviction Mustafa has communicated numerous times directly with the Court, even when represented by counsel. In these communications, Mustafa has expressed to the Court his concerns that the evidence presented at the trial was tampered with. Thus, he made numerous motions to the Court requesting various types of relief, many of which are discussed in more detail below. On June 5, 2007, the Court held a conference in which it informed the parties that it would grant Mustafa's request for a hearing in order for Mustafa to put on the record all additional evidence he would like regarding the claims he has made in his post-trial motions. (6/5 Tr. at 10.) Specifically, the Court informed the parties that the Aug. 14 Hearing would have a "limited function." (Id.) It would provide Mustafa an opportunity to present evidence related to claims Mustafa has made in five different communications he has had with the Court. Specifically, (1) Mustafa's August 12, 2006 letter "in concerns with a notice of re motion pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgement of acquittal, and Rule 33. Orderin new trial proceeding"; (2) a January 10, 2007 motion entitled "Motion for Violation of Constitutional Right for Due Process and Perjury and US. Rule 18 § 1623 (Dismissing Case)"; (3) a February 21, 2007 affidavit entitled "Affidavit in Support of Notice of Motion" and the attached memorandum of law; (4) a March 9, 2007 letter to the Court claiming a Rule 28 U.S.C. 753(b) violation; and (5) an April 2, 2007 motion requesting dismissal or a new trial, pursuant to Federal Rules of Criminal Procedure 29 and 33. (6/5 Tr. at 10-11.)
Mustafa's first language is not English, and the Court has had a Turkish interpreter available at every conference for this defendant. Thus, though his English is quite good — he has indicated at times that he is comfortable speaking to the Court in English and also writing to the Court in English, and the Court has noted that he has very neat handwriting (6/5 Tr. at 22) — Mustafa's submissions are occasionally somewhat difficult to understand and have a variety of spelling and typographical errors. The Court has not undertaken to correct any of these errors, and has quoted his submissions exactly as it received them.
The Court further informed Mustafa at that time that, even though he was proceeding pro se, he would be expected to "follow all of the appropriate standards of proof and follow the Federal Rules of Evidence." (6/5 Tr. at 19.) Mustafa was reminded that "the Court cannot give [him] instruction or advice" and that he "should trust and rely on Mr. Siegel, who is his standby counsel and has Mustafa's best interests at heart, to assist him in understanding the appropriate procedures and law at issue here." (6/5 Tr. at 19.) As such, he was directed by the Court to submit an offer of proof in writing as to each of the sixteen witnesses he had indicated he would like to call on his own behalf. (6/5 Tr. at 13-18.) Based on the Government's request, the Court informed Mustafa that his offer of proof should comply with Rule 17(b) of the Federal Rules of Criminal Procedure, which requires that Mustafa show "the necessity of the witness's presence for an adequate defense." (6/5 Tr. at 15-18.)
III. Mustafa's Claims
Based on the Court's and the Government's reading of these fivepro se documents, it appears that Mustafa has three primary claims he would like the Court to consider. (6/5 Tr. at 10-11.) First, Mustafa has requested that the Court dismiss the conspiracy charge against him under Rule 12(b)(2) of the Federal Rules of Criminal Procedure. (Feb. 21, 2007 Mot. at 1.) While this Rule generally applies to motions made prior to trial, see Fed.R.Crim.P. 12, Mustafa invokes it here, claiming that the conspiracy charge should be dismissed because there was insufficient evidence to prove the charge, and that conspiracy cannot be found where a party has conspired with a "government agent or informant." (Feb. 21, 2007 Mot. at 1.) The Government challenges this claim on the basis that Mustafa's motions to dismiss are untimely and that they "lack any foundation in the record or even sworn affidavit." (Gov't Opp. at 8.) Moreover, the Government notes that Mustafa was convicted of a conspiracy with Osman, not with the cooperating witness. (Id. at 9.)
Mustafa also mentions in his August 12, 2006 submission that he believes there was a violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") in the investigation of him and his son in relation with this case. (8/12 Mot. at 3, 9-10); see also 18 U.S.C. § 2516(1). The general purpose of Title III, as it relates to Mustafa's claim here, is that it restricts the power to authorize the interception of wire or oral communications "to assure that an accountable and identifiable person actually reviews wiretap requests." United States v. Nanfro, 64 F.3d 98, 99-100 (2d Cir. 1995) (internal quotations omitted). As the Government points out in its letter in opposition to the August 12, 2006 motion, however, and as Mustafa has been repeatedly reminded, there were no wiretaps used in this case, and thus Title III is inapplicable. (Gov't 6/7 Letter at 1.) Because all recorded conversations in this case were obtained by consensual recordings using a body recording device, by a participant in the phone call or from prison (see Gov't 6/7 Letter at 1), there is absolutely no basis for Mustafa's claims regarding Title III. The Court therefore does not address these claims.
Mustafa also moves for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Aug. 12, 2006 Mot at 1; Apr. 2, 2007 Mot. at 1.) His primary support for these two claims includes allegations of prosecutorial misconduct and use of false evidence based on his assertions that the Government altered the trial transcripts and the transcripts of the recorded conversations used as evidence at trial. (Id.; see also Jan. 10, 2007 Mot.; Feb. 21, 2007 Mot.; Mar. 9, 2007 Mot.) Mustafa also asserts that his counsel at trial, Mr. Turner, was ineffective because he did not call certain witnesses and improperly kept Mustafa from testifying on his own behalf. (Apr. 12, 2006 Mot. at 3-4.) The Government also opposes these claims, arguing that Mustafa's allegations are baseless, and that they fall "far short of the high standards applicable to Rule 29 and 33 motions." (Gov't Opp. at 14.) The Government claims that Mustafa has not provided any evidence that he was prevented from testifying and that he has made no showing of any prejudice resulting from him not testifying. (Id.)
At the June 5, 2007 conference in which these allegations were discussed, the Court informed Mustafa that, by bringing a claim of ineffective assistance of counsel, Mr. Turner would have the opportunity to defend himself, and that as a result, Mustafa may have implicitly waived his attorney-client privilege in that regard. (6/5 Tr. at 20.)
Mustafa submitted via letter dated June 26, 2007 ("June 26 Letter") a list of witnesses he would like to call "in order to prove evidence in my case. Due to the fact that my previous attorney Mr. Turner and my son's attorney Mr. Osuna never quastion the witnesses at trial time." (June 26 Letter.) While this submission was filed more than a week after the deadline originally set by the Court (see 6/5 Tr. at 16), the Court did accept and review it for purposes of determining whether it met the standards of Rule 17(b), namely whether Mustafa has shown that these witnesses' presence is necessary for an "adequate defense." Fed.R.Crim.P. 17(b). The Government responded in a letter dated July 10, 2007 ("Gov't Letter"), again arguing that Mustafa's claims are "meritless, factually baseless," and should be denied because they fall short of the requirements of Rule 17(b). (Gov't Letter at 3.) The Government did, however, concede that Mustafa should be allowed to present evidence regarding his claim that he received ineffective assistance of counsel. (Gov't Letter at 9.) In a letter to the Court dated July 25, 2007 ("July 25 Letter"), Mustafa responded to the Government's Letter with a reiteration of his concerns that, among other things, "the goverment know should be known, and knowingly used false and fabricated evidence." (July 25 Letter at 1.)
On July 30, 2007 this Court issued an Opinion and Order regarding Mustafa's request that he be allowed to present the testimony of sixteen witnesses at the August 14 Hearing. In that Opinion, the Court denied Mustafa's request as to most of the witnesses, because he did not show that their testimony would be "a necessity" in order for Mustafa to prove his motions under Rule 12(b), Rule 29, or Rule 33. The Court did, however, grant Mustafa's request that he be allowed to present evidence regarding his claim of ineffective assistance of counsel by his trial attorney, Mr. Turner.
IV. The Aug. 14 Hearing
The August 14 hearing began with Mustafa's direct examination of Mr. Turner. Though Mustafa's questions were mostly unrelated to the purpose of the hearing, he eventually did ask Mr. Turner about why he chose not to call one of Mustafa's fellow inmates. Mr. Turner responded that after an investigation, "it became apparent that that witness was ready to testify for the government against you and it would have been probably detrimental to your interest to have that witness testify at trial. And I was assured, actually, that if you had taken the witness stand on your own behalf, that witness would be coming in to testify against you." (8/14 Tr. at 34; see also id. at 85.)
The Court later asked Mr. Turner about the decision not to call Mustafa as a witness. (Id. at 73.) Mr. Turner stated that he discussed this issue with his client, made clear that it was ultimately Mustafa's decision, and Mustafa ultimately agreed with Mr. Turner's opinion that he should not take the witness stand. (Id.) During the Government's cross-examination, Mr. Turner further elaborated on the reasons for not calling various witnesses and the related discussions with his client regarding the same. (Id. at 89-90.)
During Mustafa's own testimony, he claimed that Mr. Turner did not call prison witnesses because "[h]e said the Judge doesn't want." (Id. at 101.) Mustafa believed that these witnesses would have shown that Agent Campanella committed perjury and that "there was no threats to collect any money." (Id. at 104, 111.) Through further questioning, however, it became clear that Agent Campanella was only involved in another, unrelated case against Mustafa. (Id. at 105-06.) Mustafa also conceded that he fully discussed with Mr. Turner whether to call the witnesses. (Id. at 111.)
DISCUSSION
Because Mustafa is proceeding pro se, and therefore has not had the benefit of legal training and expertise in fashioning his request that these witnesses be allowed, the Court will be somewhat lenient in reading his requests, where possible. See United States v. Ben-Shimon, 249 F.3d 98, 103 (2d Cir. 2001). However, as the Court has stated to Mustafa on the record, despite his pro se status, he is expected to follow the procedures of this Court, and meet the same standards of proof expected of any party before it. (6/5 Tr. at 19.) Thus, the Court turns to its analysis of Mustafa motions under Rule 12(b), Rule 29, and Rule 33.
I. Claims Under Rule 12(b)(2)
Mustafa has, here, essentially brought a pre-trial motion despite the fact that a trial has been conducted and completed. Specifically, Mustafa now argues that the conspiracy charge should be dismissed because there was insufficient evidence to prove the charge, and that conspiracy cannot be found where a party has conspired with a "government agent or informant." (Feb. 21, 2007 Mot. at 1.) The Government challenges this claim on the basis that Mustafa's motions to dismiss are untimely and that they "lack any foundation in the record or even sworn affidavit." (Gov't Opp. at 8.) Moreover, the Government notes that Mustafa was convicted of a conspiracy with Osman, not with the cooperating witness. (Id. at 9.)
A. Applicable Legal Standard
According to Rule 12(b)(2) of the Federal Rules of Criminal Procedure, "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed.R.Crim.P. 12(b)(2); United States v. Williams, 389 F.3d 402, 404 (2d Cir. 2004). In addition, Rule 12(b)(3) provides that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense." Fed.R.Crim.P. 12(b)(3)(B).
As is evidenced by the language of the rule, this relief is available to a defendant prior to trial, except on a motion relating to the Court's jurisdiction, which may be made at any time. United States v. Crowley, 318 F.3d 401, 420 (2d Cir. 2003) ("Rule 12(b)(2) governs the timing of all motions relating to defects in the indictment (other than defects defeating the jurisdiction of the court)."). The Advisory Committee Notes to the Federal Rules provide a list of five types of objections a defendant may make, though the Notes also allow "all defenses and objections which are capable of determination without a trial of the general issue." Fed.R.Crim.P. 12 advisory committee's note 2. The list of five objections "include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc." Id.
A court can only resolve a legal issue prior to trial, as "fact questions raised by an Indictment are the province of the jury."United States v. Pirro, 96 F. Supp. 2d 279, 283 (S.D.N.Y. 1999). Indeed, "a defendant may not challenge a facially valid Indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary sufficiency." United States v. Kelly, 91 F. Supp. 2d 580, 583 (S.D.N.Y. 2000).
B. Applicable Law as Applied to Mustafa's Arguments
First, it is worth noting that Mustafa's claim may arguably not be time-barred. At no time prior to trial did Mustafa or his attorney bring to the Court's attention any concerns regarding the charge of conspiracy, despite the fact that the Court clearly ordered in writing in a Memorandum Order dated March 16, 2006, that all motions in limine were to be submitted by March 23, 2006. (March 16, 2006 Order.) However, generally a claim that an indictment fails to allege an element of the crime, or, as Mustafa might be claiming here, fails to state an offense, may be brought "at any time while the case is pending," and may be brought for the first time on appeal. United States v. Davila, 461 F.3d 298, 308 (2d Cir. 2006); see also United States v. Sutton, 961 F.2d 476, 478-79 (4th Cir. 1992) ("A defense or objection based on the failure of an indictment to allege an essential element of a crime may be raised at any time during the proceedings."); United States v. Wexler, 621 F.2d 1218, 1223 (2d Cir. 1980) ("[A]n objection that an indictment fails to charge an offense may be raised for the first time on appeal.").
Still, even "when a challenge is urged for the first time on appeal, indictments and informations are construed more liberally . . . and every intendment is then indulged in support of the sufficiency." Davila, 461 F.3d at 308 (citing Sutton, 961 F.2d at 479); see also United States v. Watkins, 709 F.2d 475, 478 n. 2 (7th Cir. 1983) (noting that the "interest in judicial efficiency requires that tardily challenged indictments be construed liberally in favor of validity"). Moreover, "[a] motion to dismiss for failure to charge an offense, although cognizable for the first time on appeal, does not lie where . . . the indictment tracks the language of the statute and sufficiently sets forth the elements of the crime charged." Wexler, 621 F.2d at 1223.
Here, there is no question that the indictment charging Mustafa and Osman Ozsusamlar with conspiracy was sufficient. Mustafa devotes his entire nine-page memorandum of law in support of his motion for dismissal to arguments related to his contention that "NO REAL, or TRUE conspiracy ever occurred" because it was a "manufactured crime" that was "formatted with the informer." (2/21 Mot. Mem of Law at 3, 1.) Mustafa erroneously argues that the conspiracy for which he was charged was a conspiracy between him and the cooperating witness. (2/21 Mot. Mem of Law at 2.) However, the conspiracy charged in this case was between Mustafa and Osman, and never involved the cooperating witness. While Mustafa is correct, and the Government concedes, that a charge of conspiracy would not have been valid if it had accused him of conspiring with the cooperating witness or the undercover agent, that was not the case here.
Thus, the indictment at issue here was sufficient to set forth a charge of conspiracy, see Wexler, 621 F.2d at 1223 (an indictment will be sufficient to charge an offense where "the indictment tracks the language of the statute and sufficiently sets forth the elements of the crime charged"), and the evidence at trial was more than adequate to support the jury's finding that Mustafa and Osman knowingly participated together in the conspiracy to commit a murder-for-hire. Mustafa's motion to dismiss the conspiracy charge against him is denied.
II. Claims Under Rule 29 and Rule 33
Next Mustafa moves for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, and for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Aug. 12, 2006 Mot at 1; Apr. 2, 2007 Mot. at 1.) His primary support for these two claims is a litany of allegations of prosecutorial misconduct and use of false evidence. He repeatedly has alleged in his communications to the Court following his trial that the Government altered the trial transcripts and the transcripts of the recorded conversations used as evidence at trial. (Id.; see also Jan. 10, 2007 Mot.; Feb. 21, 2007 Mot.; Mar. 9, 2007 Mot.) Mustafa also asserts that his trial counsel, Mr. Turner, was ineffective at trial because Mr. Turner did not call certain witnesses and improperly kept Mustafa from testifying on his own behalf. (Apr. 12, 2006 Mot. at 3-4.)
The Government opposes these claims on the basis that Mustafa's allegations are time-barred, and also that they are baseless and fall "far short of the high standards applicable to Rule 29 and 33 motions." (Gov't Opp. at 14.) The Government also notes that Mustafa has not provided any evidence that he was prevented from testifying and that he has made no showing of any prejudice resulting from him not testifying. (Id.)
A. Rule 29 Applicable Legal Standard
When a defendant moves pursuant to Rule 29 for a judgment of acquittal on the grounds that the evidence against him at trial was insufficient, the district court must determine, based on all of the relevant evidence, whether a rational juror "might fairly conclude guilt beyond a reasonable doubt." United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (internal quotations omitted). A defendant challenging the sufficiency of the evidence "bears a very heavy burden." United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002); United States v. Scarpa, 913 F.2d 993, 1003 (2d Cir. 1990) (internal quotations omitted); see also United States v. Tillem, 906 F.2d 814, 821 (2d Cir. 1990) (motions challenging the sufficiency of the evidence for a conviction "rarely carry the day"). The district court must draw all reasonable inferences in favor of the Government, see Mariani, 725 F.2d at 865, and must resolve all issues of credibility in favor of the jury's verdict. See United States v. Weiss, 930 F.2d 185, 191 (2d Cir. 1991); United States v. Roldan-Zapata, 916 F.2d 795, 802 (2d Cir. 1990). To succeed, a defendant must persuade the court that, "viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." United States v. Leslie, 103 F.3d 1093, 1100 (2d Cir. 1997) (McLaughlin, J.) (internal quotations omitted).
When evaluating a claim under Rule 29, a court also must analyze the evidence from trial in its totality. United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (the sufficiency test should be applied "to the totality of the government's case and not to each element, as each fact may gain color from others"); United States v. Matthews, 20 F.3d 538, 548 (2d Cir. 1994). There is no requirement as to the type of evidence that must be presented at trial to withstand a Rule 29 motion. Thus, a jury may arrive at a verdict "based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citing United States v. Libera, 989 F.2d 596, 601 (2d Cir. 1993)); see also United States v. Sureff, 15 F.3d 225, 228 (2d Cir. 1994) ("So long as, from inferences reasonably drawn, the jury could fairly have found beyond a reasonable doubt that the defendant engaged in the charged criminal conduct, a conviction based on circumstantial evidence must be sustained."). Finally, a court "may not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000); United States v. James, 239 F.3d 120, 124 (2d Cir. 2000) ("[T]he credibility of witnesses is the province of the jury, and [a court] simply cannot replace the jury's credibility determinations with [its] own.").
B. Rule 33 Applicable Legal Standard
Rule 33 of the Federal Rules of Criminal Procedure provides that "[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). It confers broad discretion upon a trial court to set aside a jury verdict and order a new trial in order to avert a perceived miscarriage of justice. See United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). A defendant seeking a new trial bears the burden of demonstrating the "essential unfairness of the [original] trial." United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956). In making this determination, a Court must "examine the totality of the case. . . . There must be a real concern that an innocent person may have been convicted." Sanchez, 969 F.2d at 1414.
In adjudicating a Rule 33 motion, a court is entitled to weigh the evidence and, in so doing, to evaluate the credibility of witnesses. See id. at 1413. However, "[i]t is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment." Id. at 1414. For example, "exceptional circumstances" may be found where, "testimony is 'patently incredible or defies physical realities.'" United States v. Ferguson, 246 F.3d 129, 34 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1414). Thus, courts should exercise their discretion under Rule 33 sparingly. See Sanchez, 969 F.2d at 1414. Indeed, "motions for a new trial are disfavored in this Circuit." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995).
i. Newly Discovered Evidence
The only reason clearly stated in Rule 33 for the granting of a new trial is in the case of newly discovered evidence. Fed.R.Crim.P. 33(b)(1). Still, a new trial will only be granted based on newly discovered evidence where the evidence (1) was discovered after trial, (2) could not have been discovered before or during trial through the exercise of due diligence, (3) is material, non-cumulative and not merely impeaching, and (4) if admitted, "would probably lead to an acquittal." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (quoting United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946 (1982)); United States v. Salameh, 54 F. Supp. 2d 236, 248-49 (S.D.N.Y. 1999) (Duffy, J.).
ii. Ineffective Assistance of Counsel
Where, as here, a defendant seeks a new trial pursuant to Rule 33 based on a claim of ineffective assistance of counsel, a court should inquire as to whether that defendant's legal representation was "so deficient that it violated the Sixth Amendment to the United States Constitution." Salameh, 54 F. Supp. 2d at 248 (citing U.S. Const. amend VI). Thus, to prove ineffective assistance of counsel, a defendant must (1) show that his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) demonstrate that he suffered prejudice because there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland v. Washington, 466 U.S. 668, 687-94 (1984). "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
As to the first part of the Strickland test, in determining whether counsel exercised reasonably effective assistance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Disagreeing with counsel's strategy and finding it inadequate is not enough for defendant to prevail in an ineffective assistance claim. United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986), cert. denied, 479 U.S. 989 (1986). Indeed, "[t]here are countless ways to provide assistance in any given case," and "[e]ven the best criminal defense attorneys would not defend a client in the same way."Strickland, 466 U.S. at 689; see also United States v. Kurti, 427 F.3d 159, 163 (2d Cir. 2005). However, "evidence of counsel's failure to make conscious, reasonably informed decisions for the benefit of the criminal defendant may at times be sufficient to overcome the presumption of effectiveness."Greiner v. Wells, 417 F.3d 305, 325 (2d Cir. 2005).
In explaining its second prong, Strickland defines "a reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Specifically, Strickland provides that, where defendant is challenging his conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
It is worth noting that, generally, a tactical decision by a trial attorney of "whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (citing United States v. Romero, 54 F.3d 56, 60 (2d Cir. 1995); United States v. Aiello, 900 F.2d 528, 533 (2d Cir. 1990)). However, "the decision not to call a witness must be grounded in some strategy that advances the client's interests" rather than "animated primarily by a desire [by counsel] to save himself labor." Eze v. Senkowski. 321 F.3d 110, 129 (2d Cir. 2003); see Pavel v. Hollins, 261 F.3d 210, 218-19 (2d Cir. 2001).
Furthermore, a claim of ineffective assistance of counsel on the grounds that a trial attorney did not sufficiently inform a defendant of the "nature and existence of the right to testify," or based on a claim that trial counsel did not follow a defendant's wishes regarding that defendant's desire to testify, still must satisfy the two-prong test established in Strickland.See Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
Moreover, a court should be "highly deferential" to a counsel's performance, as there are strong presumptions regarding the provision of legal representation, particularly with respect to strategic choices made by counsel. Strickland, 466 U.S. at 690-91 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.").
iii. Defendant's Right to Testify at Trial
It is well established that, even though it is not found in the text of the Constitution, the right to testify at one's criminal trial "has sources in several provisions of the Constitution."Rock v. Arkansas, 483 U.S. 44, 51 (1987); see Brown v. Artuz, 124 F.3d 73, 76 (2d Cir. 1997). Such provisions include the Due Process Clause of the Fifth and Fourteenth Amendments, Rock, 483 U.S. at 51, and the Compulsory Process Clause of the Sixth Amendment, id. at 52. In addition, the Supreme Court has held that "[t]he opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony." Id.; see also Brown, 124 F.3d at 76; United States v. Bifield, 702 F.2d 342, 349 (2d Cir. 1983).
In this Circuit, as in most other Federal Circuits, "the decision whether to testify belongs to the defendant and may not be made for him by defense counsel." Brown, 124 F.3d at 78. Even though the ultimate decision of whether to take the stand belongs to the defendant in a criminal trial, a "[d]efense counsel bears the primary responsibility for advising the defendant of his right to testify or not to testify. . . ." Id. at 79 (internal quotation omitted). Defense counsel thus "should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best," however "counsel must abide by the defendant's decision on this matter." Id.
The Court has no affirmative obligation to "inform a defendant of the right to testify and ascertain whether the defendant wishes to waive that right." Id. A trial judge may conduct an inquiry as to whether a defendant understands his or her right to testify and whether he or she would like to waive that right, especially in exceptional circumstances such as "where the trial judge has reason to believe that defense counsel is frustrating the defendant's desire to testify." Id. at 79 n. 2 (internal quotations and citations omitted). However, the Second Circuit has discouraged this practice "even when exceptional circumstances are not present, . . . as judicial interference with counsel's strategic decision not to place his client on the stand 'poses a danger that the judge will appear to encourage the defendant to invoke or waive this right' even when it is unwise to do so." Id. (quoting United States v. Joelson, 7 F.3d 174, 178 (9th Cir. 1993)).
C. Applicable Law as Applied to Mustafa's Arguments
i. Sufficiency of the Evidence at Trial
Mustafa's arguments that the evidence against him was insufficient are based largely on his claims that the Government used false or perjured evidence against him at trial. (Aug. 12, 2006 Mot. at 6-9; Jan. 10, 2007 Mot. at 1-2, 6; Mar. 9, 2006 Mot. at 2; Apr. 2, 2007 Mot. at 2.) These claims of false evidence are based almost entirely on Mustafa's assertions that the recordings and transcripts of recordings presented at trial were altered, that the trial transcripts themselves were altered, and that the testimony of the witnesses against him at trial was not credible. (Id.)
Mustafa's claim that the evidence against him at trial was insufficient is wholly without merit. First, Mustafa's claims regarding the recordings and transcripts of recorded conversations between him and Osman, as well as the various claims regarding Mr. Turner's failure to effectively challenge the credibility of witnesses at trial are all related to Mustafa's wish that his attorney had been able to convince the jury not to rely on that proof at trial. Despite vigorous cross-examination of the witnesses at trial by both Mr. Turner and Osman's attorney, Robert Osuna, Esq., the jury did believe the evidence pointed to Mustafa and Osman's guilt. The Court cannot now under Rule 29 "substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 114. Nor does the Court believe Mustafa has demonstrated the "exceptional circumstances" necessary for it to "intrude upon the jury function of credibility assessment," Sanchez, 969 F.2d at 1414; Ferguson, 246 F.3d at 133-34, as is required under Rule 33. This is especially the case where, as here, Mustafa has provided the Court with no reason to believe that the jury's evaluation of witness credibility should be questioned, or that any exceptional circumstances exist.
Furthermore, the evidence at trial was more than sufficient. Indeed, as the Court has noted on many occasions, the case presented against Mustafa at trial was "strongly in favor of conviction." (8/28 Tr. at 5-6; see also 3/20 Tr. at 25.) Contrary to Mustafa's contentions, the Government was not required to present the jury with evidence that Mustafa and Osman had a conversation in which they explicitly stated their intent to commit murder-for-hire. Rather, "the jury's verdict may be based entirely on circumstantial evidence." Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). "Such evidence, of course, is of no less intrinsic worth than direct evidence and, indeed, circumstantial evidence alone may support a guilty verdict."United States v. Espaillet, 380 F.3d 713, 719 (2d Cir. 2004) (citing Martinez, 54 F.3d at 1043). The Court finds that the evidence presented by the Government was sufficient for the jury to conclude that Mustafa agreed to plan a murder-for-hire.
As described above, the jury viewed transcripts of numerous telephone conversations between Mustafa and Osman that, within the context of all the evidence presented, allowed it to draw a reasonable inference that Mustafa entered into a criminal agreement with his son. During these telephone calls, Mustafa and Osman discussed the fact that they needed to apply pressure to the Batcas to get them to pay the money owed (Gov't Ex. 15 — 15T); Mustafa instructed Osman to obtain, and Osman agreed to provide, the Victim's home and business addresses to a man they believed to be a hitman (Gov't Exs. 10-12, 10T-12T; Tr. 52:10-57:18); Mustafa supplied Osman with the name and telephone number for that hitman, "Joe" — the same telephone number and name that the cooperating witness, Muhammed Mabrouk, earlier had provided Mustafa at the Government's direction (Gov't Exs. 13, 13T; Tr. 63:1-14); Mustafa instructed Osman to call "Joe" from his own telephone, telling him that "[t]hey have talked to the person who is going to solve that problem" (Gov't Exs. 13, 13T; Tr. 63:15-18), and that he should he should tell "Joe" that he was Mustafa's son (Gov't Exs. 14, 14T; Tr. 65:14-16) and that Mustafa was "with Muhammed" (Gov't Exs. 14, 14T; Tr. 66:8). Subsequent conversations between Osman and "Joe" made it entirely clear that Mustafa and Osman intended "Joe" not only to collect the money from the Batcas, but also kill them. (See, e.g., Gov't Exs. 22, 22T-2; Tr. 319:6-17 (in which "Joe" told Osman that his "people" would "kill both of them," and when "Joe" asked Osman if he understood, Osman responded affirmatively).)
Finally, Mustafa presents the Court with no new evidence that is material, non-cumulative and not merely impeaching, and "would probably lead to an acquittal." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (quoting United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946 (1982)). Indeed, despite the Court's warnings at the August 14 Hearing that he should focus his presentation of evidence on his claims regarding his right to testify (8/14/07 Tr. at 49-50), Mustafa instead presented countless examples of situations in which he believed his attorney did not adequately cross-examine witnesses at trial (Id. at 12-13, 43-44, 47, 58-59, 69, 73, 76, 78), despite the fact that the record at trial completely belies such a suggestion.
In light of these considerations, and drawing all reasonable inferences in favor of the Government, see Mariani, 725 F.2d at 865, and resolving all issues of credibility in favor of the jury's verdict, see Weiss, 930 F.2d at 191; Roldan-Zapata, 916 F.2d at 802, this Court simply is not persuaded that "no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Leslie, 103 F.3d at 1100. Therefore, the Court denies Mustafa's motion for a judgment of acquittal under Rule 29.
Nor does the Court believe that Mustafa has demonstrated any "essential unfairness of [his original] trial," United States ex rel. Darcy, 351 U.S. at 462, as it relates to the evidence presented at trial for purposes of Mustafa's motion requesting a new trial under Rule 33.
ii. Ineffective Assistance of Counsel
Mustafa also claims, however, that his counsel at trial was ineffective, and that he is thus entitled to a new trial under Rule 33. Mustafa's claim of ineffective assistance of counsel is based on his assertion that Mr. Turner failed to call certain witnesses at trial, and also that Mr. Turner somehow improperly prevented Mustafa from testifying in his own defense at trial. (Apr. 12, 2006 Mot. at 3-4; Apr. 2, 2007 Mot. at 3-4.)
Thus, to prevail here, Mustafa must (1) show that his counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) demonstrate that he suffered prejudice because there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-94. Mustafa has shown neither.
First, Mustafa has given the Court no reason to doubt that Mr. Turner provided anything less than a complete and full defense for his client. Under Strickland, in determining whether counsel exercised reasonably effective assistance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). As the Court noted above, merely disagreeing with counsel's strategy and finding it inadequate, as Mustafa is doing here, is not enough for defendant to prevail on an ineffective assistance claim. See Sanchez, 790 F.2d at 253.
It also is important to reiterate, particularly given Mustafa's focus on Mr. Turner's performance at trial and his failure to call certain witnesses that Mustafa believed were important, that a tactical decision by a trial attorney of "whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." Schmidt, 105 F.3d at 90 (2d Cir. 1997) (citing Romero, 54 F.3d at 60; Aiello, 900 F.2d at 533). Moreover, given Mr. Turner's testimony at the August 14 Hearing, it is clear that his strategic decisions during the trial, were "grounded in some strategy that advances the client's interests" rather than "animated primarily by a desire [by counsel] to save himself labor." Eze, 321 F.3d at 129; see Pavel, 261 F.3d at 218-19. Indeed, the evidence presented at the August 14 Hearing indicated to the Court that Mr. Turner had made decisions with Mustafa's best interests at heart, and that Mustafa simply did not listen to his attorney or understand the necessary tactical and strategic decisions that Mr. Turner made.
For example, Mustafa spent a great deal of time questioning Mr. Turner about the fact that John F. Campanella — an FBI Agent who had worked on another case involving Mustafa — had not been called as a witness at trial. Mustafa, based on his pro se submissions and also his statements at the August 14 Hearing, seems to believe that Agent Campanella set up Mustafa in this case. Indeed, Mustafa claims Agent Campanella "was main organaizer this case (and my Kimba Wood Case) under Campanella control provide false case evidence against to both defendants." (July 26 Letter ¶ 5.) Mustafa further believes that Agent Campanella controlled the other Agents involved in this case, whom Mustafa believes provided false evidence, and that the failure of the Government to call Agent Campanella at trial then somehow constitutes a violation of due process. (July 26 Letter ¶ 5.) He also believes that Mr. Turner's failure to call Agent Campanella is evidence of ineffective assistance of counsel.
However, as Mr. Turner testified at the August 14 Hearing, Agent Campanella was not involved in this case, and any testimony he could have provided would have been irrelevant and cumulative, and thus not admissible under the Federal Rules of Evidence. For Mr. Turner to have introduced Agent Campanella at trial likely would have harmed Mustafa.
Similarly, Mustafa spent a great deal of time at the August 14 Hearing attempting to show that someone in the Government met with Mabrouk — the cooperating witness who testified against Mustafa at trial — prior to Mabrouk meeting with Mustafa regarding Mustafa's request that Mabrouk find him a hitman. Mr. Turner explained to Mustafa at the Hearing that, in fact, he had investigated the matter and found that no Government representative had met with Mabrouk prior to Mabrouk meeting with Mustafa, and thus a claim of entrapment was simply not viable. Thus, again, Mustafa's arguments at the August 14 Hearing did not provide the Court with any reason to doubt Mr. Turner's strategy at trial, or to believe in any way that Mr. Turner's conduct at trial did not "fall within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Even if the Court found Mr. Turner's conduct at trial to have fallen below the standard of reasonable professional assistance, Mustafa has given the Court no reason to believe that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 687-94. As the Court noted above, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Indeed, Strickland specifically holds that where a defendant is challenging his conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. Mustafa has made no such showing. Instead, Mustafa spent over four hours at the August 14 Hearing presenting evidence that was not only irrelevant to the Court's determination here, but also was cumulative and, in some cases, less than candid, to say the least. Moreover, as the Court has noted previously, this was a case in which the evidence against Mustafa was "strongly in favor of conviction." (8/28 Tr. at 5-6; see also 3/20 Tr. at 25.)
Mustafa also claims, though, that he received ineffective assistance of counsel on the grounds that Mr. Turner somehow improperly prevented him from testifying at trial, though he does not provide any specific allegations as to this claim. It is clear that the decision regarding whether he wanted to testify at trial was Mustafa's and could not be made by Mr. Turner. See Brown, 124 F.3d at 78. However, Mr. Turner had the primary responsibility for "advising the defendant of his right to testify or not to testify. . . ." Id. at 79. Thus, Mr. Turner should have advised Mustafa "about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best." Id.
There is no indication that Mr. Turner did not sufficiently inform Mustafa of the "nature and existence of the right to testify," or otherwise meet his obligation to discuss and counsel Mustafa regarding Mustafa's right to testify at trial. At a conference before this Court held in August 2006, Mr. Turner stated on the record that they discussed the issue "thoroughly," and that Mr. Turner recommended Mustafa not testify "because of his prior criminal history . . . I did not think it would be in his best interests to testify." (8/28 Tr. at 11.) Mr. Turner reiterated this claim at the August 14 Hearing, stating that "I have a firm recollection that my client and I discussed, in detail, . . . as to whether he would take the witness stand. I explained to him what would happen if he took the stand and why it was my recommendation to him not to take the stand because of at least two prior convictions in federal court and because of a witness who could potentially be called by the government that would also damage his case." (8/14/07 Tr. at 73.)
Mustafa has failed to show that Mr. Turner provided ineffective assistance of counsel at trial in any way. His motion for a new trial pursuant to Rule 33 is therefore denied.