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holding that although the defendant gave consent for officers to enter his apartment, that consent did not give officers the right to enter or search the bedroom or living room
Summary of this case from Scott v. City of Mount VernonOpinion
02 CR. 798 (RPP)
October 31, 2003
OPINION AND ORDER
By motion dated September 3, 2003, Defendant Juan Santos renews the Federal Rules of Criminal Procedure Rule 29(a) motion made at the close of the government's case and moves under Rule 29(c) for a judgment of acquittal. Defendant also moves for a new trial pursuant to Rule 33(a). For the following reasons, his motions are denied.
Background
In May 2002, the Drug Enforcement Administration (DEA) was investigating groups transporting cocaine and marijuana between New York and Canada. (Trial Tr. at 109-110.) Investigations indicated that cocaine was being brought into Canada from the New York metropolitan area, and marijuana was being brought into New York from Canada. (Id. at 112.) Under cover as a drug courier, Special Agent Milione infiltrated the marijuana transport group. (Id. at 113 and 346.) This case arises out of negotiations for the transport of controlled substances between Agent Milione and Alejandro "Alex" Paulino, a member of the cocaine transport group.
In his undercover role as a drug courier, Agent Milione's assignment included telephone negotiations with a cocaine supplier in Canada to arrange the receipt of cocaine from Paulino and to arrange the delivery of marijuana to Paulino. (Id. at 114.) The agent met twice with Paulino. The meetings were subject to audio and video recordings by means of a button camera hidden on Agent Milione's jacket. (Id. at 124-25, 138.) Other DEA agents observed and also provided back up protection. (Id. at 124.) The first meeting occurred on May 14, 2002. Agent Milione met Paulino, who was driving a livery cab, near the corner of W. 100th Street and West End Avenue. Milione observed the driver of a gray livery cab parked across the street from Paulino (id. at 126, 238), and agents recorded the gray cab's license plate number: T406494C (id. at 143). Agent Milione asked Paulino about the gray cab, and Paulino referred to the gray cab's driver, Defendant, as his cousin (Id. at 148).
At this meeting, Agent Milione explained to Paulino that it was his understanding that Paulino would provide him with thirteen kilograms of cocaine, which Agent Milione would deliver to the Canadian border (Gov't Exhibit IT at 2; Trial Tr. at 150). Once at the border, the Agent would pick up marijuana from an unnamed trucker and drive it down to New York (id.). Paulino replied that he did not have anything for Agent Milione at this time and asked the Agent to call him in an hour (Gov't Ex. IT at 3).
Exhibit numbers followed by "T" indicate the transcript of an audio or video recording played for the jury.
Agent Milione testified that he had two conversations with a Canadian representative and co-conspirator of Paulino on May 16, 2002, establishing that the cocaine would be available by the next day (Gov't Ex. 116T at 2; see Gov't Ex. 117T). In a conversation with the same Canadian representative on May 19, 2002, Agent Milione promised not to delay the delivery of the marijuana any longer, understanding that the cocaine might not be delivered simultaneously (Trial Tr. at 180).
On May 20, 2002, Paulino and Agent Milione met near the corner of W. 100th Street and West End Avenue (id. at 186-87). Agent Milione parked on the west side of West End Avenue between W. 99th Street and W. 100th Street and walked over to the southeast corner of W. 100th Street and West End Avenue where Paulino was parked in a livery cab on W. 100th Street with a young woman (id. at 187, 189, 249). As he approached Paulino's livery cab, he noticed the gray livery cab parked on the north side of W. 100th Street across from Paulino (Gov't Ex. 40) and recognized the driver from the meeting on May 14th (Trial Tr. at 186).
The DEA agents who had arrived on scene earlier observed a Jeep Cherokee with four passengers discharge two passengers later identified as Kenneth Rodriguez and Faustino Delarosa, and then move from one position to another on West End Avenue after Paulino arrived (id. at 402, 391). Delarosa was observed talking on a cell phone in a nearby phone booth (id. at 36).
When Agent Milione reached Paulino's cab, he suggested that Paulino come to Agent Milione's car to pick up the marijuana (Gov't Ex. 7T at 3), but Paulino told him to deposit the marijuana delivery in "the car" indicating the gray livery cab across the street from him (Trial Tr. at 189, 213, 227). Agent Milione returned to his car. As he left Paulino, Paulino's car pulled away (id. at 190, 213). Agent Milione picked up the bag containing the "drugs" and began walking towards the gray livery cab (id. at 190-91). While crossing West End Avenue from his car to the gray livery cab, Agent Milione saw the gray livery cab pull away (id. at 219-20). Agent Milione testified that when he saw two men approaching him, "I believed that I was in immediate threat," (id. at 297). One of the men, Kenneth Rodriguez, was talking on a walkie-talkie and had displayed what appeared to be an identification badge on a chain, around his neck (id. at 363). Agent Milione gave the agreed upon distress signal (id. at 220), whereupon the DEA agents who had been observing, arrested three of the men.
At about this time, Agent Zimmerman noted two individuals approaching Agent Milione in a "determined" manner (id. at 363), and the Jeep Cherokee that had been parked one block north of the agents was bearing down on Agent Milione (id. at 220). Agent Zimmerman identified one of the men in the street as Faustino Delarosa (id. at 361).
Agents Roth and Weil stopped the Cherokee and arrested its two occupants, Angel Rodriguez and Edgardo Baez (id. at 404). A cell phone associated with the number 646/765-4525 was taken from the person of Angel Rodriguez id. at 465; see id. at 478). A cell phone associated with number 646/234-5714 was taken from the person of Edgardo Baez (id. at 474; see id. at 478).
Agent Zimmerman arrested Faustino Delarosa (id. at 404, 365) and recovered a cell phone from him (id. at 478). The number of this cell phone was 917/549-4980 (Id. at 475; see id. at 478).
Kenneth Rodriguez got away and turned himself in at a DEA office later (id. at 509). When he was arrested, Kenneth Rodriguez stated that his cell phone number was 646/529-2226 (id. at 546-47).
Paulino was arrested at his home on May 22, 2002 (id. at 369). A cell phone, number 917/225-6540, was recovered from Paulino's residence (id. at 584).
Angel Rodriguez had a knife on him at the time of arrest (id. at 406). Two knives (id. at 76), a hat (ski-mask) with two (eye) holes in it (id. at 70), a pair of panty-hose (id. at 72), and a walkie-talkie (id. at 366) were found in the Jeep Cherokee. A cell phone, associated with the number 917/582-4231 (id. at 549) was found in the Jeep as well (id. at 366).
Agent Roth testified that panty hose are often worn as masks in robberies. (Trial Tr. at 72.)
Agent Milione identified Defendant as the driver of the gray livery cab he observed on May 14th (id. at 127). The gray livery cab was identified as having license plate number T406494C on the May 14, 2002 (id. at 143) and May 20, 2002 meetings (id. at 393). According to motor vehicle records, the car with that license plate number is registered to Defendant. (Id.) DEA agents arrested Defendant upon his return from the Dominican Republic on June 12, 2002 (id. at 418). Defendant made a statement to DEA agents, Weil, Bradley and Sanger, upon his arrest (id. at 421-22).
On August 8, 2003, a jury convicted Defendant of conspiracy to commit robbery of articles in interstate commerce pursuant to 18 U.S.C. § 1951 (the Hobbs Act).
Discussion
In its opening, the Government stated that Defendant was engaged in a conspiracy in which Defendant betrayed Paulino's trust and arranged with Angel Rodriguez, Edgardo Baez, Faustino Delarosa, and Kenneth Rodriguez to rob the person expected to be delivering drugs to Paulino (seeid. at 14, 17). After the Government presented its case-in-chief, on August 6, 2003, Defendant moved, pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, for a judgment of acquittal. The Court reserved decision. Defendant presented no defense (id. at 650). After the jury delivered the verdict, Defendant made a motion pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, for the Court to set aside the guilty verdict. In the alternative, Defendant made a motion for a new trial under Rule 33(a) of the Rules. Each request shall be considered in turn.
A. Rule 29
Defendant asserts that impermissible speculation is required to tie Defendant to cell phone number 646/321-4022 (Mem. of Points and Authorities in Supp. of Mot. for J. of Acquittal or, in the Alternative, for a New Trial at 2 [hereinafter Def s. Mem.]). Next, he claims that the government impermissibly rests its charge of conspiracy on the "mere presence" of Defendant at the scene of the crime (id. at 5).
1. Applicable Law
Rule 29 of the Federal Rules of Criminal Procedure reads, ". . . the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. Rule Crim. Proc. Rule 29(a). The Supreme Court established the standard for insufficient evidence in Jackson v. Virginia: ". . . the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Mariani, 725 F.2d 862, 865 (2d Cir. 1984) (citing Jackson when describing standard for judgment of acquittal); United States v. Itzkowitz, 1998 WL 812573 at * 1 (E.D.N.Y. 1998) (applyingMariani to Rule 29(a) motions). "Moreover, `pieces of evidence must be viewed not in isolation but in conjunction,' . . . and the jury's verdict may be based on circumstantial evidence." United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994) (quotingUnited States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985),cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986)). The credibility of witnesses is for the jury, rather than the court to determine. United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). Nonetheless "the government must do more than introduce evidence at least as consistent with innocence as with guilt."D'Amato, 39 F.3d 1249 at 1256 (citations omitted).
2. Evidence Presented
At trial, the government presented evidence beyond Defendant's mere presence sufficient for a rational juror to find the Defendant guilty beyond a reasonable doubt. This evidence includes: the observation of DEA agents, Defendant's statement upon arrest, documents, and cell phone transmission records which showed Defendant was a member of a conspiracy with Edgardo Baez, Faustino Delarosa, Angel Rodriguez and Kenneth Rodriguez to rob Agent Milione of what they thought was drugs.
Evidence presented at trial indicated that Defendant was present in a position to watch and to protect Paulino at the scene of the crime. Agent Weil identified Defendant as being seated in the driver's seat of a gray livery cab parked across from Paulino's livery cab on the opposite side of West 100th Street during the period that Agent Milione was conducting negotiations with Paulino on May 14, 2002 and on May 20, 2002 (Trial Tr. at 186). The license plate of the livery cab Defendant was seen in was registered to Defendant's name (id. at 393). In his statement on arrest, Defendant admitted that he followed Paulino to the corner of W. 100th Street and West End Avenue on May 20, 2002, and remained there upon Paulino's orders (id. at 433).
Defendant's statement upon arrest also indicates that Defendant and Angel Rodriguez agreed to a plan to intercept a package believed to contain drugs. According to Defendant's statement, on May 17, 2002 Paulino requested that Defendant follow him in his livery cab and park across the street from him at 100th St. and West End Avenue and keep an eye on Paulino (id. at 428-29). Defendant said that Paulino did not meet with anyone that day (id. at 428-29). That evening, Defendant stated that Angel Rodriguez attended a party at Defendant's apartment. According to Agent Weil:
[Defendant] stated that after he explained what he had done that afternoon with Paulino, Angel Rodriguez stated that that was behavior consistent with drug trafficking activity to have people work as security taxis like that. And that it's a very dangerous situation and that the next time Paulino contacted Santos, Angel Rodriguez instructed Santos to call him and said: Listen, I'll bring out some of my guys and we'll act as protection for you. Anyone who tries to give you any packages or put any packages in your car, we will intercept them and we will get rid of the packages (id. at 430).
Defendant's conversation with Angel Rodriguez on the evening of May 17, 2002 established an agreement to intercept packages that were believed to contain drugs.
On May 20, 2002, Defendant followed Paulino and remained across the street from him on W. 100th Street (id. at 433; see id. at 186, 393). When Agent Milione attempted to deliver a canvas bag to Defendant, Defendant pulled his car away (id. at 219-20), leaving Agent Milione vulnerable to Kenneth Rodriguez and Faustino Delarosa who were approaching Agent Milione (id. at 220). Agent Milione was frightened by these converging actions and gave the emergency signal (id. at 297) resulting in the three arrests.
As in his cross-examination of Agent Milione (id. at 292-93, 299), Defendant suggests in his reply brief that Paulino directed the undercover agent to deliver the drugs to him, not to the Defendant (Reply Mem. in Furtherance of Def's. Mots. for J. of Acquittal and New Trial at 3 [hereinafter Reply Mem.].). Furthermore, Defendant argues that when Agent Milione was approached by Delarosa and Kenneth Rodriguez, he was actually walking back towards Paulino's car, not Defendant's, to deliver the drugs (Trial. Tr. at 281, 294). While, out of context, Paulino's command to "put it in the car" (Gov't Ex. 7T at 3) is ambiguous as to which car he is referring, Agent Milione testified that it was clear to him by Paulino's word and body language that he was being instructed to make the delivery to the Defendant's car (Trial Tr. at 213). Furthermore, the jurors had video tape evidence from which they could reasonably conclude that Paulino was referring to Defendant's car and that was the direction Milione was headed (id. at 278-82).
In short, Defendant's statement upon arrest shows that he agreed to enter into a plan with Angel Rodriguez to intercept packages likely to contain drugs and that plan was implemented on May 20, 2002 with Agent Milione as the victim. This evidence, together with the evidence of the agents, is sufficient for a reasonable juror to conclude that Defendant was a member of a conspiracy to rob Agent Milione.
The government augmented this proof of conspiracy with proof that Defendant was also known by the name "Polo" and that he participated in a slew of cell phone calls between the conspirators.
Upon his arrest, Defendant was found with a receipt addressed to, "Juan Ramon Santos (Polo)." (Gov't Ex. 26-C; Trial Tr. at 418). At the time of his arrest, Defendant stated that his home phone number was 212/740-3954 (Trial Tr. at 472-73). Angel Rodriguez's cell phone contained the listing of 212/740-3954 as the home phone number of "Polo" (id. at 497). A business card found on Angel Rodriguez at the time of his arrest contained the notation, "(917)944-2053 bipe polo" (Gov't Ex. 13H). On May 8, 2002 Angel Rodriguez's cell phone called that beeper number at 7:17 p.m. That call was returned at 7:21 p.m. from Defendant's home phone (212/740-3954) (Gov't Ex. 60 at 10). These pieces of evidence taken in conjunction could lead a rational juror to find that Defendant used the alias "Polo," the home phone number 212/740-3954 and the beeper number 917/944-2053. See D'Amato, 39 F.3d 1249 at 1256.
Agent Weil testified at trial that "bipe" is a phonetic spelling of "beeper" in Spanish (Trial Tr. at 489).
Evidence at trial also shows that Defendant's cell phone number was 646/321-4022. Both Paulino's address book, seized at the time of his arrest, and the phone number directory in Delarosa's cell phone list 646/321-4022 as the cell phone number for "Polo" (Trial Tr. at 483-84). A call placed to "Polo's" beeper from Angel Rodriguez's cell phone on May 8, 2002 at 7:17 p.m. was returned four minutes later from Defendant's home phone number (Gov't Ex. 60 at 10). On May 10, 2002 Angel Rodriguez's cell phone call to "Polo's" beeper at 6:32 p.m. was returned at 6:34 p.m. by the number 646/321-4022 (Gov't Ex. 60 at 12, Trial Tr. at 493-94).
Another piece of evidence suggests Defendant used the cell phone 646/321-4022. No outgoing calls were made from 646/321-4022 after Defendant flew to the Dominican Republic on May 25, 2002 (Gov't Ex. 64 at 5 and Trial Tr. at 535), suggesting that Defendant, rather than someone else, used the phone number.
Defendant argues that the subscriber information for phone number 646/321-4022 does not provide any other identification, but does indicate that the purchaser of the cell phone had a birthday of July 26, 1977 (Def. Ex. H and Trial Tr. at 559), while the Defendant's date of birth is June 10, 1963 (Trial Tr. at 544). This inconsistency is not sufficient to necessarily dispel reasonable doubt in a reasonable juror. It was the user not the purchaser of the cell phone which was important. The cell phone could have been purchased by another person for Defendant, H Defendant could have lied when acquiring the cell phone, or he could have purchased the cell phone second hand. Whoever purchased the cell phone evidently did not want to identify himself as no other identifying information was provided.
Connecting Defendant to phone number 646/321-4022 does involve using circumstantial evidence and drawing "justifiable inferences of fact."United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972) (quoting Curley v. United States, 160 F.2d 229, 232 (D.C. Cir. 1947), cert. denied, 331 U.S. 837 (1947)). Circumstantial evidence and reasonable inferences are acceptable means for jurors to use determining guilt beyond a reasonable doubt. See D'Amato, 39 F.3d at 1256; Tavlor 464 F.2d at 243.
The government also presented evidence indicating that Defendant was part of the nearly constant cell phone communications between the members of the conspiracy between May 14 and 20, 2002. On May 14, 2002, cell-phone 646/321-4022 called Angel Rodriguez twice that morning (Gov't Ex. 5A), less than two hours before the meeting. The same cell phone also called Angel Rodriguez at 1:40 p.m., approximately fifteen minutes after the first meeting between Paulino and Agent Milione (id. see Trial Tr. at 126).
On May 20, 2002, cell phone 646/321-4022 called Angel Rodriguez approximately twenty minutes before Defendant arrived at the scene and Rodriguez called that cell phone two minutes before Defendant arrived on the scene at 4:00 p.m. (Gov't Ex. 8A). These were just two of nine cell phone calls between 3:15 and 4:15 p.m. on May 20, 2002, between Angel Rodriguez, Faustino Delarosa, Kenneth Rodriguez, and Edgardo Baez (id.). After 646/321-4022d called Angel Rodriguez at 3:15 p.m., and until the time of Rodriguez's arrest, all of Rodriguez's cell phone calls were either to or from the alleged members of the conspiracy. (Gov't Ex. 60 at 24.) In view of Defendant's statement that Angel Rodriguez had agreed to provide protection to Defendant the next time Paulino asked Defendant to accompany him, a juror could reasonably conclude that cell phone number 646/321-4022 was being used by Defendant.
Thus a reasonable juror could have found that Defendant is also known by the nickname Polo, that Defendant used cell phone 646/321-4022, and that Defendant was a member of the conspiracy. He was at the scene of the crime. His actions were synchronized with the other members of the conspiracy and the cell phone linked to him instigated a slew of phone calls between members of the conspiracy immediately proceeding the attempted robbery.
There are several brief arguments that Defendant makes in his reply memorandum that bear addressing. First, Defendant did note a contradiction in Agent Weil's testimony. On direct, Agent Weil testified that the records for cell phone number 646/529-2226, attributed to Kenneth Rodriguez, were for a cell phone found in the Jeep on May 20, 2002. (Trial Tr. at 479.) On cross, however, he testified that the cell phone number 646/529-2226 was for the number of the cell phone Kenneth Rodriguez had acknowledged that he used at the time of his arrest. (Trial Tr. at 546-47.) A reasonable juror could have determined that Agent Weil's direct testimony was an innocent mistake since there were two arrestees named Rodriguez and that his testimony on cross-examination was clearly correct, since the cell phone number the other conspirators had in their cell phone directories for Kenneth Rodriguez was the one he provided to officers at arrest (id.). The jurors could weigh the Agent Weil's testimony and determine which piece of his testimony was more credible. See Strauss, 999 F.2d at 696.
Second, Defendant asserts that Agent Milione's statement to his contact in Canada, "Alex [Paulino] tried to rob me" (Trial Tr. at 339-40) disputes the government theory that Paulino was to be one of the "victims" of the intended robbery (Reply Mem. at 3). As the government argued on re-direct however, that statement reflected Agent Milione's belief at the time, but not his current belief (Trial Tr. at 354). At that time, Agent Milione had no reason to conclude that "Alex" (Paulino) and his "cousin" (Defendant) were not acting in concert and his contact in Canada had put him in touch with "Alex" (Paulino) (id.).
Third, in his reply memorandum, Defendant lists information the government failed to elicit from the Defendant when he was interviewed upon his arrest and questions why the government did not record the interview (Reply Mem. at 3-4). "[T]he government has no duty to employ in the course of a single investigation all the many weapons at its disposal, and . . . the failure to utilize some particular technique or techniques does not tend to show that a defendant is not guilty of the crime with which he has been charged." United States v. Saldarriaga, 204 F.3d 50, 53 (2d Cir. 2000). The jury could find that the statement as explained by Agent Weil in his testimony was an adequate basis upon which to evaluate the statement.
Thus, a reasonable juror could have found beyond a reasonable doubt that Defendant was also known as Polo, that he used the cell phone number 646/321-4022, and that he conspired with Edgardo Baez, Faustino Delarosa, Angel Rodriguez, and Kenneth Rodriguez to violate the Hobbs Act.
B. The Rule 33 Motion
The Court has more discretion in evaluating a Rule 33 request for a new trial than in evaluating a Rule 29 motion for a judgment of acquittal. The Court does not need to examine the evidence in the light most favorable to the government and the Court can make its own determinations in evaluating witness testimony. U.S. v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980);United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). Despite this broader discretion, "that discretion should be exercised sparingly." Sanchez, 969 F.2d at 1414. Here, the Court finds that the evidence sufficient to overcome the Rule 29 motion is sufficient to meet the standard of a Rule 33 motion.
In addition to pleading insufficient evidence, Defendant also claims that granting the prosecution one of its requested jury instruction was a "miscarriage of justice" sufficient to order a new trial. See U.S. v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) ("The rule by its terms gives the trial court `broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice,'") (quoting Sanchez, 969 F.2d at 1413).
The jury instruction in question is as follows:
I omitted one thing. And this is very simple. You've heard arguments regarding the absence of phone records for a cell phone seized from Alejandro Paulino. I instruct you that both parties had an equal opportunity to subpoena these records. Therefore you should not draw any inferences or reach any conclusions as to what those records would have shown. You should, however, always remember my instructions, that the law does not impose on the defendant in a criminal case the burden or duty of producing any evidence (Trial Tr. at 814).
Defendant asserts that this instruction was misleading and prejudicial because it shifted the burden of proof to the Defendant. (Def's. Mem. at 10.)
There are few criminal cases that concern missing evidence jury charges. Recently, the Second Circuit upheld a jury charge stating that the jury should not be prejudiced against the government because it had failed to present specific items of evidence since the judge added that the jury could use only the evidence presented at trial to determine the verdict. United States v. Saldarriaga, 204 F.3d at 53. Other recent Second Circuit cases involving missing evidence argue the propriety of instructions that the jury may not draw inferences based on evidence not presented at trial. See United States v. Thristino, 47 Fed. Appx. 7, 9 (2d Cir. 2002) (holding that counsel who failed to request an adverse-inference charge for missing evidence was not ineffective because the evidence would not have assisted the defense). In Kronisch v. United States, the court held that there is an adverse inference when a party destroys evidence that would have been damaging to it.Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Here, on the other hand, Defendant made no claim that the government destroyed the cell phone records of Paulino nor did he claim the government did not disclose Paulino's cell phone number to him in discovery. Under these conditions, the Court specifically instructed the jury not to draw any inferences as to what the records for this cell phone would have shown and reminded them that there was no burden on Defendant to produce any such evidence (Trial Tr. at 814).
In this case, the jury charge contained the standard instruction to only base its verdict on the evidence presented at trial (Trial Tr. at 757-58 and 774).
The rules governing missing witness charges give some guidance here. "Whether a missing witness charge should be given lies in the sound discretion of the trial court." Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) (citations omitted). Generally when there is a missing witness the trial court has discretion to "(1) give no instruction and leave the entire subject to summations . . ., (2) instruct the jury that no unfavorable inference may be drawn against either side . . ., or (3) instruct the jury that an adverse inference maybe drawn against either or both sides." United States v. Caccia, 122 F.3d 136, 139 (2d Cir. 1997) (citations omitted). In this case, the Court opted for the second option described inCaccia. It instructed the jury, "you should not draw any inferences or reach any conclusions as to what those records would have shown" (Trial Tr. at 814). Thus, the Court gave a proper instruction to the jury for evaluating so-called "missing evidence."
It should be noted that the cell phone records of Angel Rodriguez, Baez, Delarosa, or Kenneth Rodriguez show no incoming calls from, or outgoing calls to, the Paulino cell phone number (917/225-6540). (See Gov't Exs. 60, 61, 62, 63.)
In this particular instruction, and twenty-three separate times in the jury charge, the judge reminded the jury that it is the government's burden to prove each element beyond a reasonable doubt or that Defendant was under no obligation to present evidence (See Trial Tr. at 763, 769, 770, 771-72, 772, 774, 780, 782, 783, 787, 793, 794, 798, 799, 800, 801, 803, 804, 807). Accordingly, the instruction did not shift the burden of proof to Defendant, and was not a manifest error.
In a supplemental reply brief filed after oral arguments on these motions, Defendant raises a Brady claim for the first time.See United States v. Brady, 83 S.Ct. 1194, 1196-97 ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . ."). The Defendant makes no showing as to why Paulino's phone records would be exculpatory. The claim is denied.
The Defendant's motions are denied.