United States v. Rosario

          MEMORANDUM OF DECISION ON MOTION FOR NEW TRIAL [DKT. 53]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Before this Court is Defendant Ivan Rosario's motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. Defendant was tried and convicted of one count of causing or inducing any person to destroy evidence, in violation of 18 U.S.C. §§ 1512(b)(2)(B), (j). He now seeks a new trial and requests that the Court reconsider several of its prior rulings. For the following reasons, this motion is DENIED.

         I. Background

         On March 16, 2017, a grand jury returned an indictment charging Defendant with (1) conspiracy to distribute and to possess with intent to distribute 1 kilogram or more of a mixture or substance containing 1 kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(i); (2) unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(2). See United States v. Rosario, No. 17-cr-00055 (VLB) (Rosario I), [Dkt. 13 (Indictment)]. As the case progressed to trial, Defendant was indicted on new charges. This time, he was charged with two counts in United States v. Rosario, No. 18-cr-00007 (VLB) (Rosario II): (1) witness tampering with intent to influence or prevent testimony and to cause or induce any person to withhold testimony, in violation of 18 U.S.C. §§ 1512(b)(1), (b)(2)(A), (j); and (2) causing or inducing any person to destroy evidence, in violation of 18 U.S.C. §§ 1512(b)(2)(B) and (j) (“Count Two”). The Court consolidated the cases for trial purposes but bifurcated the count for unlawful possession of a firearm by a convicted felon. The two cases were tried in April 2018 and the jury convicted Defendant of Count Two causing or inducing any person to destroy evidence, in violation of 18 U.S.C. §§ 1512(b)(2)(B), (j). The jury could not agree on the conspiracy charge and it acquitted him of all other charges. Notably, the Government subpoenaed Defendant's girlfriend, Shanika Lexie, to testify. Defendant elected to testify on his own behalf. The Government submitted evidence of certain telephone conversations between Defendant, Ms. Lexie, and Defendant's mother during the time when Defendant was detained and awaiting trial. During those conversations, Defendant directed Ms. Lexie to destroy her cell phone which contained information damaging to Defendant. He enticed her to do so and threatened to hurt her if she did not.

         II. Procedural History

         After the jury convicted Defendant of Count Two, Defendant moved for a mistrial. Rosario II, [Dkt. 26 (Oral Mot. for Mistrial)]. The Court denied Defendant's motion. Rosario II, [Dkt. 37 (Order Denying Oral Mot. for Mistrial)]. A few days later, Defendant filed his motion for judgment of acquittal. Rosario II, [Dkt. 39 (Mot. for J. of Acquittal)]. The Court denied his motion finding that the evidence supported a reasonable juror's conclusion that he is guilty of Count Two beyond a reasonable doubt. Rosario II, [Dkt. 42 (Ruling and Order on Mot. for J. of Acquittal)]. The Court specifically cited Defendant's three telephone calls with Ms. Lexie during which he told her he would “F” her up if she did not break her cell phone. See Rosario I, [Dkt. 41-1 (Gov. Exs. 200A-T-200F-T) at USAO-002956, -002977, -002981]. Defendant testified that when he told Ms. Lexie to break the “window” she knew that “window” meant “phone.” See Rosario I, [Dkt. 291 (Rosario Trial Tr. Day 9) at 234:6-10]. The Court found that a reasonable juror could conclude that Defendant's statements were to prevent the use of the cell phone in his upcoming trial given the short time period between Defendant's telephone calls with Ms. Lexie and the trial in addition to the interrelatedness of the conversations.

         Defendant also moved to continue his sentencing arguing that the Court should not sentence him because the underlying offense related to the count of conviction was one for which the jury could not reach a verdict. See Rosario II, [Dkt. 40 (Mot. for Continuance Regarding Sentencing)]. Defendant claimed that the Court should not sentence him until the Government decided whether it would retry him on that count. Defendant further claimed that he was in the unfair predicament of hoping that he would receive a long enough sentence to satisfy the Government so it would not retry him on the underlying offense. He also claimed that participating in a presentence interview with the Probation Office would violate his Fifth Amendment rights. The Court denied Defendant's motion on the following grounds: (1) the count of conviction is not so inextricably linked to the underlying charge such that the Court could not sentence him until the Government decided whether or not to sentence him for the underlying charge; (2) 18 U.S.C. § 1512(j), the statute of conviction, does not require Defendant to be convicted of the underlying charge; and (3) the Defendant did not state how his Fifth Amendment rights would be prejudiced, but even if he did, Defendant waived his Fifth Amendment right to remain silent by testifying at trial. See Rosario II, [Dkt. 44 (Ruling and Order)].

         III. Motion for a New Trial

         Rule 33 of the Federal Rules of Criminal Procedure provides that, “the court may vacate any judgment and grant a new trial if the interests of justice so require.” Fed. R. Crim. P. 33(a). Rule 33 “confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992); see also United States v. Robinson, 430 F.3d 537, 543 (2d Cir. 2005). A motion for a new trial should only be granted under exceptional circumstances when “letting a guilty verdict stand would be manifest injustice.” United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001).

         There are two grounds for a motion for a new trial and each has different time limitations. First, a “motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(1). Second, a “motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). Defendant claims to bring this motion under Rule 33(b)(1) and admits that it is not timely under Rule 33(b)(2). Defendant's motion entirely ignores two important aspects of Rule 33 - the restriction for cases pending appeal and the test for when a Rule 33(b)(1) motion may be granted. First, Defendant's motion is procedurally improper. Rule 33 states, “[i]f an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.” Fed. R. Crim. P. 33(b)(1). Defendant filed his notice of appeal on June 25, 2018, several weeks before he filed this motion for a new trial. Rosario II, [Dkt. 49 (Notice of Appeal)]. The appeal is currently pending and the Second Circuit has not remanded Defendant's case to this Court. Therefore, the motion for a new trial is procedurally improper and the Court could not grant it at this time.

         Second, Defendant fails to cite the relevant standard under which a Rule 33 motion based on newly discovered evidence may be granted: “Relief under Rule 33 based on newly discovered evidence may be granted only upon a showing that ‘(1) the evidence [was] newly discovered after trial; (2) facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence; (3) the evidence is material; (4) the evidence is not merely cumulative or impeaching; and (5) the evidence would likely result in an acquittal.'” United States v. Forbes, 790 F.3d 403, 406-07 (2d Cir. 2015) (internal citation and quotation omitted).

         Without referring to any of the above factors, Defendant argues that justice requires the Court to order a new trial for the following reasons: (1) the Government should be forced to decide whether it will retry him on the conspiracy charge; (2) there was not sufficient incriminating evidence on the telephone that Defendant wanted Ms. Lexie to destroy so he could not have intended the phone to be destroyed to obstruct justice; (3) alleged jury misconduct; and (4) an incomplete transcript. None of these reasons justify a new trial under Rule 33. Defendant's motion is another attempt to postpone his sentencing until after the Government decides whether it will retry him on the conspiracy charge on which the jury did not reach a verdict.

         The Court is not persuaded by Defendant's arguments. First, Defendant claims that it was not until the Government responded to his motion for judgment of acquittal and the Court denied his motion that he was on notice that the Court was inclined to permit the sentencing to proceed under the Government's overtly stated claim that an above guideline sentence would “obviate the need” to retry the Defendant for conspiracy to distribute at least 1 kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. See Rosario II, [Dkt. 41 (Gov. Opp'n to Def.'s Mots. For J. of Acquittal and Continuance of Sentencing) and Dkt. 42 (Ruling and Order on Mot. for J. of Acquittal)]. The Government's procedural argument is not evidence. Accordingly, Federal Rule of Criminal Procedure 33(b)(1) does not apply.

         In addition, the Court expressly stated that it was not inclined to sentence Defendant based on the conduct underlying the charge on which the jury could not reach a verdict. See Rosario II, [Dkt. 42 (Ruling and Order on Mot. for J. of Acquittal)]. The Court explained that the sentence for obstruction should bear a relation to the penalty sought to be avoided. The Court further explained its role as a neutral arbiter to sentence a Defendant for the offense of conviction, not to be a vehicle for fulfillment of the Government's prosecutorial aims. The Court declined to participate in the strategic machinations of the parties.

         Second, Defendant claims that the interests of justice require a new trial because there was evidence on both sides regarding Defendant's intent behind ordering Ms. Lexie to destroy her cell phone. That is exactly why the issue was presented to the jury, to resolve that question of material fact, which they did. The simple fact that Mr. Rosario is dissatisfied with their decision is not a basis for a new trial. See United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (“To grant the motion [for a new trial], [t]here must be a real concern than an innocent person may have been convicted.”) (internal citation and quotation omitted).

         Again, as set forth in the Court's Ruling and Order on Motion for Judgment of Acquittal at Dkt. 42 and reiterated above, there was substantial evidence that Defendant wanted the cell phone to be destroyed because it contained incriminating evidence. Defendant told Ms. Lexie that she must do what his mother asks her to do because the Government is trying to make him seem like “the biggest fucking drug dealer.” Rosario, II [Dkt.41-1 (Gov. Exs. 200A-T-200F-T) at USAO-002958]. Defendant called his mother while she was at her house with Ms. Lexie and instructed his mother to “Break the window.” Id. at Gov. Ex. 200D-T. Mr. Rosario later testified both he and Ms. Lexie understood “window” to mean “phone.” Rosario I, [Dkt. 291 (Rosario Trial Tr. Day 9) at 234:6-10]. The jury also heard evidence that Mr. Rosario instructed Ms. Lexie to bring the item he wanted her to destroy to his mother's home and destroy it in his mother's presence. Ms. Lexie threw the item Mr. Rosario wanted her to destroy in the Long Island Sound. Rosario I, [Dkt. 290 (Rosario Trial Tr. Day 8) at 58:15-59:7]. A reasonable jury could have found that Mr. Rosario did not instruct Ms. Lexie to bring a window to his mother's house and break it and that Ms. Lexie did not throw a window into the Sound; but rather the item they were discussing was a cell phone as the Government suggested. A reasonable jury also could have found that Defendant's requests for Ms. Lexie to break her cell phone were made to prevent its use in an official proceeding.

         Third, Defendant claims that the Court failed to ensure that the Defendant received a fair trial after learning of discussions among two jurors out of the presence of the other jurors. First, the Court has already ruled on this claim and Defendant offers no legal basis for its reconsideration.

         Federal Rule of Criminal Procedure 33(b)(1) does not afford Defendant the relief sought. Defendant relies on United States v. Cox in which the Second Circuited rejected defendants' juror misconduct claim where a juror had a conversation with a secretary working for the government. 324 F.3d 77, 87 (2d Cir. 2003). The Circuit found that the district court judge did not abuse his discretion by examining the two jurors involved in and providing reinforcing instruction to all jurors. Id. at 88. Like Cox, the jurors at issue here were not deliberating, discussing evidence, or applying the law to the facts. They were discussing their deliberation process.

         The dynamic of deliberation is a private matter between the jurors and should not be disclosed. Defense counsel were made aware of the matter and how the Court intended to proceed. The Court delivered an Allen Charge and there were no indications that the jurors were unable to deliberate. Thus, there is no basis to conclude that the impasse persisted other than the fact that the jury was unable to reach a verdict on certain charges, which was not prejudicial to the Defendant.

         Defendant's suggestion that the split verdict represented a compromise is pure speculation. Defendant offers no facts suggesting the jurors were discussing the merits of the case nor is there any such indication. The only way he could make such a representation of fact is if defense counsel asked a juror to ...