Opinion
04 CR 911 (SJ).
July 11, 2006
ROSYLNN R. MAUSKOPF, ESQ. United States Attorney Eastern District of New York Brooklyn, New York, By: Thomas J. Seigel, Esq. Deborah Sue Mayer, Esq. Attorneys for the United States
Thomas R. Ashley, Esq. Robert Treat Center Newark, New Jersey, Attorney for Defendant
MEMORANDUM AND ORDER
Before the Court are two post-trial motions (the "Motions") filed by the defendant, Michael Spataro ("Spataro"). For the reasons stated below, Spataro's Motions are DENIED.
BACKGROUND
The facts and procedural history of the case are presumed to be known by the parties and shall not be recounted here except as necessary for the disposition of the pending Motions.
On March 8, 2006, Spataro filed a motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure (the "Rule 29 Motion"), and in the alternative, a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (the "Rule 33 Motion"). See Memorandum of Law of Defendant Michael Spataro in Support of Motions Pursuant to Rule 29 and Rule 33 ("Def. Mem."), 04 CR 911, Docket Entry No. 192. The government responded on March 21, 2006. See Government's Memorandum of Law in Opposition to Defendant Spataro's Post-Trial Motion ("Gov. Mem."), 04 CR 911, Docket Entry No. 196. The Court shall address Spataro's Motions in turn.
The parties also submitted supplemental filings, all of which the Court considered as well. See 04 CR 411, Docket Entry Nos. 193, 195, 198, 236, 238, 239 and 240.
DISCUSSION
I. Rule 29 MotionSpataro first asserts that the evidence in this case is insufficient to sustain his convictions. However, a "defendant challenging a conviction based on a claim of insufficiency of the evidence bears a heavy burden. The evidence presented at trial should be viewed in the light most favorable to the Government, crediting every inference that the jury might have drawn in favor of the Government." United States v. Zhou, 428 F.3d 361, 369 (2d Cir. 2005). Moreover, courts must view "the evidence presented at trial in its totality, not in isolation," and may not "disturb a conviction on grounds of legal insufficiency of the evidence at trial if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 370 (citation omitted).
A review of the trial record demonstrates clearly that Spataro has failed to meet his burden. First, a cooperating witness, Giovanni Floridia ("Floridia"), implicated Spataro in the murder conspiracy, testifying about Spataro's role in the plan to murder Campanella, as well as the unsuccessful attempt. (Trial Tr. 431-32, 480-93, Feb. 2, 2006.) Floridia's testimony about Spataro's participation in the murder conspiracy included references to meetings in which Spataro participated as well as incriminating actions by Spataro both before and after Campanella was shot on July 16, 2001. (Trial Tr. 476-79, 484-85, 493, 497-99.)
Had the government relied exclusively on Floridia's testimony — which was not incredible on its face — to establish Spataro's guilt beyond a reasonable doubt on the charges, this evidence would have been enough to sustain Spataro's convictions. This is because "[t]he law is well established that a federal conviction may be supported `by the uncorroborated testimony' of even a single accomplice witness `if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt.'" United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (quoting United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990)).
But there was more evidence beyond Floridia's testimony that incriminated Spataro. For example, the government introduced telephone records that corroborated Floridia's testimony about Spataro's role in the murder conspiracy. These telephone records reflected that, in the period leading up to and immediately following the attempted murder, a significant number of telephone calls were placed between the cellular telephones of Spataro and Vincent DeMartino ("DeMartino"), the person who actually shot Campanella. (Trial Exs. 26, 27, 44.) In particular, Floridia testified that, as he and DeMartino were driving away from the location where DeMartino shot Campanella, DeMartino called Spataro and said, in part, "`Hey, Mike. We missed.'" (Trial Tr. 493.) The telephone records received into evidence indeed reflected that a call had, in fact, been placed from DeMartino's telephone to Spataro's telephone immediately after DeMartino shot Campanella. (Exs. 26, 37.)
As far as the Court is concerned, no doubt exists that a rational trier of fact could conclude — as this jury did — that Spataro was guilty of all three charges. Accordingly, Spataro's Rule 29 Motion is denied.
II. Rule 33 Motion
The Court is similarly unconvinced Spataro has shown he is entitled to a new trial. According to Rule 33(a) of the Federal Rules of Criminal Procedure, a trial court "may vacate any judgment and grant a new trial if the interest of justice so requires." As the United States Court of Appeals for the Second Circuit has explained, "[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (citation omitted). When evaluating such a motion, a court "must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict."Id. (internal quotation marks and citation omitted). In undertaking such an analysis, the court is "to exercise the Rule 33 authority sparingly and in the most extraordinary circumstances," meaning only when there exists "a real concern that an innocent person may have been convicted." Id. (internal quotation marks and citation omitted).
Based on the overwhelming amount of "competent, satisfactory and sufficient evidence" the jury was able to consider at trial, this Court has no such concern. Moreover, none of the issues Spataro raises in support of his Rule 33 Motion alters this Court's view.
A. Telephone Records of Spataro's Alibi Witness
Spataro relies a great deal in pursuing his Rule 33 Motion on the fact that the government failed to disclose to Spataro in a timely manner the telephone records the government used to impeach Lisa Ida ("Ida"), an alibi witness who testified as part of Spataro's case. His reliance on the non-disclosure, however, is misplaced. Nothing in Rule 16 of the Federal Rules of Criminal Procedure, or in the case law, requires the government to disclose in advance documents it plans to use to impeach an alibi witness called to the stand by a defendant during his case. Thus, Spataro is not entitled to a new trial on this basis. B. Exclusion of Defense Witnesses
In a supplemental filing dated July 7, 2006, Spataro requests an evidentiary hearing regarding the substance of Ida's testimony. See Response in Support Michael Spataro regarding Motion for New Trial, 04 CR 911, Docket Entry No. 236 at 3. Of course, "the decision of whether to . . . conduct an evidentiary hearing remains within the sound discretion of the trial court."United States v. Agunbiade, 90 CR 610, 1995 WL 351058, at *7 (E.D.N.Y. 1995) (citations omitted). After reviewing all of Spataro's submissions on this issue, the Court does not believe an evidentiary hearing is warranted with respect to Ida's testimony. Spataro made his strategic choice during trial to question or not to question Ida as he saw fit and to obtain or not to obtain whatever additional materials or documents with respect to that testimony he thought relevant and useful to him. He may not now use these Motions to have the Court save him from his freely-chosen trial strategy. See United States v. Taylor, 900 F. Supp. 618, 627-28 (E.D.N.Y. 1995).
Spataro also bases his request for a new trial on the fact this Court precluded Spataro from presenting two witnesses, Officer Vera Simon ("Simon") and Jeffrey Lichtman, Esq. ("Lichtman"). Of course, while the Court is well-aware that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense," Chambers v. Mississippi, 410 U.S. 284, 302 (1973), "this right does not preclude a judge from placing reasonable restrictions on the admission of evidence based on the concerns as to `prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" United States v. Holmes, 44 F.3d 1150, 1157 (2d Cir. 1995) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Thus, "[a]bsent a clear abuse of discretion, a trial judge retains a wide latitude to exclude irrelevant, repetitive, or cumulative evidence." Holmes, 44 F.3d at 1157 (citations omitted). Here, nothing Spataro offers as part of his Rule 33 Motion changes the Court's view that these witnesses were properly precluded, as the proposed testimony would have been of marginal value (Simon), if any, or it would have been, at a minimum, irrelevant (Lichtman). Accordingly, preclusion of these two witnesses does not warrant a new trial for Spataro.
C. Other Crimes
Finally, Spataro seeks, in essence, to relitigate this Court's pre-trial decision to permit the government to introduce during trial evidence regarding other crimes committed by individuals affiliated with the Colombo family, including Spataro. The Court sees no reason to revisit this issue, as "[i]t is well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise." United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (citation omitted). Moreover, after reviewing Spataro's Rule 33 Motion, the Court remains unpersuaded that its prior decision on this issue was in error. Thus, Spataro is also not entitled to a new trial on this basis.
Accordingly, the Rule 33 Motion is also denied.
CONCLUSION
For the above-mentioned reasons, Defendant's Rule 29 and Rule 33 Motions are DENIED.
SO ORDERED.