Opinion
No. 03 CR 781 (CSH).
October 31, 2005
MEMORANDUM OPINION AND ORDER
In a three-count superseding indictment, defendants Samuel Saneaux and Rafael Estrella were charged in Count One with violating 18 U.S.C. § 371 by conspiring to accept bribes in connection with the assignment of federally subsidized housing, in violation of 18 U.S.C. § 666(a)(1)(B), and in Count Two with a substantive violation of the latter statute. In Count Three, Estrella was charged alone with witness tampering, in violation of 18 U.S.C. § 1512(b)(3).
Following a jury trial, the jury convicted Saneaux on Count One and reported itself unable to agree on any other count with respect to either defendant. The Court accepted the guilty verdict as to Saneaux on Count One and declared a mistrial as to Estrella on Count One, as to Saneuax and Estrella on Count Two, and as to Estrella on Count Three.
Having timely moved at the end of the government's case and the Court having reserved decision, Saneaux now moves under Rule 29, Fed.R.Crim.P., for a judgment of acquittal on Count One. Alternatively, he moves for a new trial under Rule 33. The government opposes the motions.
I. BACKGROUND
Andrews Plaza is a federally funded and subsidized seven-building rental apartment house complex in the Bronx. The federal funds are furnished under the "Section 8" program administered by the Department of Housing and Urban Development ("HUD"). At the pertinent times the demand for apartments greatly exceeded the supply. There was a lengthy wait list. Prospective tenants applied for apartments by filling written applications at the on-site Andrews Plaza business office. Pursuant to federal regulations, applications were supposed to be recorded and administered in such a way that, with certain limited exceptions, apartments were allocated to those who had been on the wait list for the longest time.
Samuel Saneaux was the manager of Andrews Plaza who worked out of the project office. Saneaux maintained control of the wait list, controlled who got applications, who obtained apartments, and which tenants obtained desired transfers from one apartment to another. Saneaux was subjected to minimal supervision and oversight by his corporate employer, Metro Management ("Metro"), a real estate management firm, and by agents of HUD. In consequence, Saneaux was able to run Andrews Plaza as something resembling a personal fiefdom.
The government's theory of the case was that Saneaux solicited and accepted, directly or through a number of intermediaries (including defendant Estrella), cash payments from individuals living elsewhere who wished to rent an apartment at Andrews Plaza, or from tenants at the complex who wished to move into another (usually larger) apartment. In return for such payments, Saneaux undertook to give favored treatment to new applicants, disregarding the wait list, or to present tenants in obtaining a new apartment.
At trial the government called witnesses from HUD, Metro, and the Andrews Plaza business office to furnish background facts. The government also called two witnesses who had applied for apartments in Andrews Plaza, paid no money to anyone, and did not get apartments. The government's principal witnesses were or had been tenants at Andrews Plaza: Erika Reyes, Reynaldo Santana, Cesar Mendez, Evelyn Morales, Marcia Gil, and Candida Vasquez. They testified that they had made cash payments, under a variety of circumstances, in order to obtain favorable treatment with respect to applications for apartments at Andrews Plaza.
These witnesses did not testify that anyone had requested or suggested that money be paid to expedite their applications.
The jury convicted Saneaux on Count One, the conspiracy count. It could not agree on the charge in Count One against Estrella; or on Count Two, a substantive count against both Saneaux and Estrella; or upon Count Three, the witness tampering charge against Estrella alone. Mistrials were declared on those counts. Saneaux now moves under Rules 29 and 33, Fed.R.Crim.P., for relief from his conviction on the conspiracy charge in Count One.
II. DISCUSSION
A. Standards of Review
1. Rule 29
Rule 29 provides that on a defendant's motion, the trial court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." The Rule was amended in 1994 to permit the court to reserve judgment on a motion for acquittal until the close of all the evidence, when the defendant may renew the motion. That is the procedure followed in this case.
A motion for judgment of acquittal under Rule 29 focuses upon the sufficiency of the government's evidence in its case in chief to sustain a conviction. "Under Rule 29, a district court will grant a motion to enter a judgment of acquittal on grounds of insufficient evidence if it concludes that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003). Stated somewhat differently, "the court may enter a judgment of acquittal only if the evidence that the defendant committed the crime is non-existent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (citation and internal quotation marks omitted). The evidence must be viewed by the trial court "in the light most favorable to the Government and all permissible inferences drawn in the Government's favor." Jackson, 335 F.3d at 180 (citation omitted).
2. Rule 33
Rule 33 empowers the trial court to "vacate any judgment and grant a new trial if the interest of justice so requires." "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." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citation and internal quotation marks omitted). When exercising the discretion conferred by Rule 33, "the court is entitled 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) (citation and internal quotation marks omitted). The majority in Ferguson summed the matter up:
The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict. The district court must examine the entire case, take into account all facts and circumstances, and make an objective evaluation. There must be a real concern that an innocent person may have been convicted.246 F.3d at 134.
A divided Second Circuit panel in Ferguson affirmed the district court's grant of a new trial under Rule 33. Chief Judge Walker dissented because "I believe the district court abused its discretion by empaneling itself as a thirteenth juror to overturn the jury verdict convicting Ferguson of conspiracy . . ." 246 F.3d at 138.
B. Analysis
Saneaux's arguments under both Rules are essentially the same. He contends, first, that the Andrews Plaza business documents proved "that none of the people who claimed they paid bribes obtained apartments faster than people who did not pay bribes," Main Brief at 3; second, that with respect to the monies some tenant witnesses testified they paid for favorable treatment, there was no proof that the funds came into Saneaux's hands; and third, that the lack of credibility of the government's tenant witnesses is manifest. In that last regard, Saneaux focuses upon (a) the conduct of HUD Special Agent Miguel Collazzo, who during his investigation into reported bribery at Andrews Plaza met with the tenant witnesses and threatened some of them with deportation and loss of child custody if they did not tell him the truth; (b) inaccuracies in the applications for apartments submitted by certain witnesses; and (c) asserted bias on their part against Saneaux.
Before addressing these contentions specifically, it is useful to consider again the jury's verdict, this time from a different perspective. Specifically, the conspiracy charge against Estrella in Count One, the substantive charge against both defendants in Count Two, and the witness tampering charge against Estrella in Count Three all depended entirely upon the testimony of one witness, the tenant Marcia Gil. And Gil's credibility was left in tatters by the effective cross-examinations of counsel for both defendants. I need not go into details. It is clear from the jury's verdict that some jurors were not willing to convict anyone on any charge that depended upon the testimony of Marcia Gil.
How, then, does one explain the guilty verdict against Saneaux on the conspiracy charge? Having examined the entire case, as Rule 33 commands me to do, I conclude (as I believe the jury concluded) that the conspiracy charge, broader in time and scope than the substantive charge including a single tenant, was sufficiently proved by two tenant witnesses who testified that they had personally handed cash in envelopes to Saneaux. These witnesses are Reynaldo Santana and Candida Vasquez.
Santana testified that late in 1994 he was living with Eleutera Perez in a single room in the Bronx. Ms. Perez was then pregnant. The building owner did not accept children as tenants. Santana and Perez had to move. Santana had a niece named Angela living in Andrews Plaza. She told Santana about possible vacancies in the complex. At his niece's suggestion, Santana communicated with an Andrews Plaza porter, who said he would inquire and that Santana should call him back. Santana called the porter back a day or so later. The porter told Santana that "I had to give him some money in order to make some arrangements, I don't know, in order to get the apartment." Tr. 511-12. Several days later Santana telephoned the telephone number he had been given by the porter, which Santana later learned was the Andrews Plaza office number. Santana found himself talking to a different man. Santana told this man that "I was Reynaldo. And I said that I was Angela's uncle, one of the tenants in the building." Tr. 512. Santana said he needed a place for his wife to live in. The man said "no, not right now, but I do think that some application are going to be available pretty soon," and "there was a possibility of getting it, but that I had to give — to turn in some money aside from that, because — because a lot of people were interested in that." Tr. 513. Santana was also told that he would have to pay $3,000, and payment in two installments would be acceptable. Santana pawned some jewelry, borrowed some money from friends, and then told the man by telephone that "I had the money in my hand." Tr. 515. The man replied: "Okay, fine, I'll stop by in a while. Wait for me downstairs, and I'll let you know when I'm going down there." Tr. 515. Santana gave the phone back to his niece, who was in the room and needed to make a call. Santana went downstairs to the street. He testified: "I waited between 15 to 20 minutes, until a black, a dark vehicle arrived. It was a BMW. It was black. Mr. Saneaux was in that vehicle and he asked me, are you Angela's uncle. . . . I told him yes, I was Angela's uncle. And he said I have an application here for the — he said I have an application here for the apartment." Tr. 516-17. At that point Santana handed Saneaux an envelope containing $1,500 in cash. Santana saw Saneaux place the envelope "under a binder that he had on the other side of the car." Tr. 518. Sanatana and Perez filled out the application and delivered it to the Andrews Plaza office two days later. Six or seven months passed. Santana and Perez received a letter from Andrews Plaza advising that an apartment was available and they should come to the office to inspect it. The apartment was acceptable to them. Santana telephoned the Andrews Plaza office and spoke to Saneaux, whose voice he now recognized. Santana told Saneaux that he had "the other part of the money that he had told me I had to deliver." Tr.520. Saneaux responded: "No, no, no, no, don't talk to me that way . . . if it's ready, I'll stop by right now. Just as the first time." Tr.520-21. Santana went downstairs to the street and waited in his car. Saneaux came walking down the street with another man. Santana honked his car horn to get Saneaux's attention. Saneaux got into Santana's car. They drove to Andrews Plaza. Santana testified: "And he said are we going to complete it now. And I said no problem. At that time I was wearing a blue jacket. I took the money out, $1,500 like this, in cash, and I gave it to him. He took it in his hand, he rolled it up, and he said, well, I hope you are good tenants, this is going to help to complete whatever is missing in the apartment. Such as the refrigerator and the stove." Tr. 522.
"T.R." references are to the trial transcript.
Santana had previously made an in-court identification of Saneaux. Tr. 506.
There is no evidence to suggest that Metro, the landlord, fulfilled its obligation to furnish rental tenants with basic appliances through the medium of cash payments to managers like Saneaux.
Candida Vasquez testified that she was living with her two children in a Manhattan apartment. She wished to reduce her rent payments. A friend, Luci Rodriguez (deceased at the time of trial), lived in Andrews Plaza. The subsidized rents at the project were lower than what Vasquez was paying. Rodriguez told Vasquez that to get an apartment in Andrews Plaza, "I had to pay $4,000, $2,000 for the application, when I filed the application, and $2,000 when I signed the lease." Tr. 921. Vasquez went to Rodriguez's apartment with $2,000 in $100 bills contained in an envelope. They went into the dining room. Saneaux was also sitting in the room. Rodriguez told Vasquez to "put the money on the table." Tr. 925. Rodriguez counted the money in the presence of Vasquez and Saneaux, left it on the table, and helped Vasquez fill out an Andrews Plaza application form. Vasquez and Saneaux did not exchange any words on that occasion. Subsequently Rodriguez telephoned Vasquez, told her that an Andrews Plaza apartment was available, and to go and sign the lease and "take the balance of the money, which was $2,000." Tr. 938. As instructed by Rodriguez, Vasquez went to Rodriguez's place of employment in the Bronx. Vasquez had $2,000 in cash in an envelope. Rodriguez gave her some candies to take to Saneaux and called a taxi to take Vasquez to Andrews Plaza. Vasquez went into Saneaux's small interior office where he was sitting alone. Vasquez placed the candies and the envelope on Saneaux's desk. Vasquez was then given a lease to sign and a key, and was shown the apartment.
Vasquez made an in-court identification of Saneaux. Tr. 918.
For Rule 29 analysis, I am not at liberty to weigh the credibility of the testimony of two witnesses that they each paid cash directly to Saneaux and thereafter received an Andrews Plaza application and a lease (Santana) or a lease (Vasquez). However, the jurors were entitled to accept that evidence and I must accept under Rule 29 that they did so, whether or not they disbelieved Marcia Gil or any other government witness. Moreover, the testimony of Santana and Vasquez is clearly sufficient for the jury to convict Saneaux of being a participant (if not the architect) of a conspiracy to violate 18 U.S.C. § 666(a)(1)(B), which prohibits agents of an organization receiving Federal program benefits (in this case, HUD rent subsidies) from soliciting or accepting bribes in connection with the organization's business. It necessarily follows that Saneaux's motion for a judgment of acquittal under Rule 29 fails.
There is no substance to Saneaux's argument that the Andrews Plaza documents, principally the Wait List Ledger, proved "that none of the people who claimed they paid bribes obtained apartments faster than people who did not pay bribes." Assuming that to be an accurate summary of the evidence, it does no more than show that Saneaux did not give good value for the bribes he accepted. It is not a necessary element of the crime of bribery that a bribe taker must keep his part of the illicit bargain entered into with a bribe payer.
The Rule 33 analysis is somewhat more complicated, but the result is the same. If I accept as credible the testimony of Santana and Vasquez about their direct payments of bribe money to Saneaux, I am entirely unable to conclude that letting Saneaux's conspiracy conviction stand "would be a manifest injustice" or feel any concern "that an innocent person may have been convicted." Ferguson, 246 F.3d at 134. And I do regard the testimony of those two witnesses as credible. The case for Saneaux must be that, in the light of the various circumstances described in his briefs, I should find that Santana and Vasquez made these descriptions of direct payments up out of whole cloth. But they are highly detailed descriptions, and the details give the testimony the ring of truth. For example: it is difficult for me to endow Santana with enough imagination to fabricate referring to his tenant niece Angela in his telephone conversation with the then unknown man at the Andrews Plaza office, in order to allow Saneaux, driving up in his black BMW to collect the first installment of the bribe, to greet Santana with "Are you Angela's uncle?" The box of candy Rodriguez gave Vasquez to deliver to Saneaux in his office, together with the second installment of that bribe, is another confirmatory detail.
My acceptance of the testimony of these two witnesses should not be read as an approval of the investigatory modus operandi of HUD Special Agent Collazzo, upon which Saneaux's briefs place an understandably indignant emphasis. It is apparent that Collazzo identified likely bribe payers during the initial stages of his investigation. He would then materialize in the apartments of vulnerable (albeit in this regard dishonest) women, some single parents, and threaten them with deportation or loss of the custody of their children if they did not tell him the "truth" about their bribe paying. If Collazzo's conduct is typical of the agency, HUD should rethink its investigative techniques. Marcia Gil was subjected to this treatment; so was Candida Vasquez. But Reynaldo Santana, while he encountered Collazzo, was a man, not an Andrews Plaza tenant at the time (he and Perez were then living separately), had no comparable hostages to fortune, was not nearly as subject to intimidation, and his contact with Collazzo was accidental and incidental, Collazzo having come to the apartment to interview Perez when Santana happened by chance to be there.
I risk a charge of political incorrectness by pointing that out, but I think that in the totality of circumstances it goes to the issue of vulnerability.
In short, if Saneaux's conviction depended entirely upon the testimony of women tenants who had been subjected to Agent Collazzo's interviewing practices, I might discern a Rule 33 problem. But it does not, and I do not.
Saneaux's briefs collect additional grounds for attacking the credibility of all the government's tenant witnesses. These contentions are legitimate, with the exception of factual inaccuracies in some of the witnesses' apartment applications; that is hardly surprising, given the government's theory that bribe payers were assisted in filling out false or misleading applications. In any event, it is the evidence of bribes paid directly to Saneaux, described by two witnesses whose testimony I accept and who I do not believe made up their detailed accounts to settle fancied grudges with Saneaux, that requires me to deny his motion for a new trial under Rule 33.
For the foregoing reasons, the motions of defendant Samuel Saneaux for a judgment of acquittal under Rule 29, or in the alternative for a new trial under Rule 33, are denied in their entirety. A sentencing date will be set by a separate Order.
It is SO ORDERED.