United States District Court, D. Connecticut
MEMORANDUM OF DECISION ON MOTION FOR NEW TRIAL [DKT.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
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.
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.
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
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)].
Motion for a New Trial
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).
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.
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).
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.
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.
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.
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).
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.
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.
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.
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
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