United States v. Delgado

• Decision Date: 13 February 2019
• Docket Number: CRIMINAL NO. 1:15-CR-3
• Citation: 367 F.Supp.3d 286
• Parties: UNITED STATES of America v. Armando Enrique DELGADO (4), Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

367 F.Supp.3d 286

UNITED STATES of America

v.Armando Enrique DELGADO (4), Defendant

CRIMINAL NO. 1:15-CR-3

United States District Court, M.D. Pennsylvania.

Signed February 13, 2019

Meredith A. Taylor, Scott R. Ford, Eric Pfisterer, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

Robert J. Daniels, Jr., Richard H. Katsifis, Killian & Gephart LLP, Harrisburg, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, Chief JudgeDefendant Armando Enrique Delgado ("Armando")¹ moves for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. (Doc. 481). He also moves for a new trial pursuant to Federal Rule of Criminal Procedure 33. (Doc. 479). Armando claims that the evidence adduced at trial is insufficient to sustain the six counts of conviction. He further maintains that prosecutorial misconduct necessitates a new trial. We will grant in part and deny in part the motion for judgment of acquittal and deny the motion for a new trial.

I. Factual Background and Procedural History

In January 2015, a federal grand jury returned a three-count indictment charging Albert Eliezer Martinez ("Albert") with sex trafficking of minors and interstate prostitution. By way of a superseding indictment returned two months later, the grand jury added five codefendants and four additional counts. The superseding indictment charges Armando in all seven counts, which include sex trafficking of minors, 18 U.S.C. § 1591(a) (Count 1); transportation of an individual to engage in prostitution, 18 U.S.C. § 2421(a) (Count 2); transportation of a minor to engage in prostitution, 18 U.S.C. § 2423(a) (Count 3); conspiracy to transport an individual to engage in prostitution in violation of Section 2421, 18 U.S.C. § 371 (Count 4); conspiracy to transport a minor to engage in prostitution in violation of Section 2423(a), 18 U.S.C. § 2423(e) (Count 5); conspiracy to distribute and possess with intent to distribute oxycodone (Percocet ), cocaine, heroin, and marijuana, 21 U.S.C. § 846 (Count 6); and distribution and possession with intent to distribute oxycodone, 21 U.S.C. § 841(a)(1) (Count 7).²

Prior to trial, two defendants pled guilty. One of those defendants was Albert, who later testified at trial for the government. Armando, along with codefendants Antonio Delgado ("Antonio"), Anthony D'Ambrosio ("D'Ambrosio"), and Keanu Martinez ("Keanu") chose to go to trial. A jury trial commenced on December 5, 2017. After jury selection but before the start of the government's case in chief, Keanu entered into a plea agreement and pled guilty to Count 3. Keanu, like his father Albert, also testified at trial for the government. Following Keanu's guilty plea, the trial proceeded against Armando, Antonio, and D'Ambrosio only.

At the close of the government's case, all three defendants moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The court granted D'Ambrosio's and Armando's Rule 29 motions in part, dismissing Count 3 of the superseding indictment against them with the government's consent. The court granted Antonio's Rule 29 motion in full, dismissing all charges against him because the evidence showed that he was a juvenile at the time of the alleged acts and conspiracies. The court permitted the remaining charges—Counts 1, 2, 4, 5, 6, and 7—against D'Ambrosio and Armando to go to the jury. The jury convicted both D'Ambrosio and Armando on all six counts.

Following his conviction, Armando timely renewed his motion for judgment of acquittal and moved separately for a new trial pursuant Federal Rule of Criminal Procedure 33. Armando contends that there was insufficient evidence to sustain his six convictions. In his Rule 33 motion, he argues that a new trial is warranted due to discovery violations and prosecutorial misconduct during closing arguments. The motions are fully briefed and ripe for disposition.

II. Legal Standards

A. Rule 29 Motion for Judgment of Acquittal

On a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, the court must decide whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" based on the evidence presented at trial. United States v. Caraballo-Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (en banc ) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); see also United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014). The court must view the evidence in a light most favorable to the prosecution and must deny the motion "if there is substantial evidence ... to uphold the jury's decision." Caraballo-Rodriguez, 726 F.3d at 430 (quoting United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003) ). Under this highly deferential standard of review, it is not the court's task to "act as the thirteenth juror," weigh credibility, assign weight to evidence, or "substitute [its] judgment for that of the jury." Id. (citations omitted). The decision to overturn a conviction based on insufficient evidence may only be made "where the prosecution's failure is clear," United States v. Leon, 739 F.2d 885, 890 (3d Cir. 1984) (quoting Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ), or where the verdict "fall[s] below the threshold of bare rationality," Caraballo-Rodriguez, 726 F.3d at 431.

B. Rule 33 Motion for a New Trial

Under Rule 33 of the Federal Rules of Criminal Procedure, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM. P. 33(a). Granting or denying a motion for a new trial "lies within the discretion of the district court." United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). A court evaluating a Rule 33 motion does not view the evidence favorably to the government but instead must "exercise[ ] its own judgment in assessing the Government's case." United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citation omitted). Rule 33 motions are disfavored and should be "granted sparingly and only in exceptional cases." United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (quoting Gov't of V.I. v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) ). Exceptional cases include those in which trial errors "so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993) (citation omitted).

III. Discussion

Armando argues that the evidence adduced at trial is insufficient to sustain a conviction on Counts 1, 2, 4, 5, 6, and 7. He also claims a new trial is required due to improper government conduct both before and during trial. We will address his insufficiency claims seriatim before turning to his motion for a new trial.

A. Sufficiency of the Evidence

Armando's sufficiency claims are neither targeted nor complex. Most of his arguments consist of a single paragraph stating that the government proffered insufficient evidence to prove certain elements of the crimes of conviction. Nevertheless, in the context of a criminal prosecution where the government has the burden to prove each element of a crime beyond a reasonable doubt, such bare-bones challenges must be answered by the government and considered by the court. We take each challenged conviction in turn.

1. Count 1 – Sex Trafficking of Minors, 18 U.S.C. § 1591(a)

Armando argues that there was no evidence adduced at trial to establish that he transported or aided and abetted in transportation of a minor for prostitution. He also contends that the government presented no evidence to show the required "knowing" or "in reckless disregard" mens rea in relation to the victim's underage status. The government's response to Armando's first challenge is abbreviated and unavailing. Rather than citing to record evidence, the government simply posits that "the evidence presented at trial sufficiently established" that Armando violated Section 1591(a). (Doc. 559 at 14). Moreover, the government offers no response to Armando's mens rea argument.

In light of the United States' tenuous response, we have performed our own exhaustive review of the trial record. We find a more fundamental problem with Count 1 that is tangentially related to the insufficiency argument—constructive amendment of the indictment. Constructive amendment occurs "when evidence, arguments, or the district court's jury instructions effectively amend[ ] the indictment by broadening the possible bases for conviction from that which appeared in the indictment." United States v. Centeno, 793 F.3d 378, 390 (3d Cir. 2015) (quoting United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) ). Constructive amendment of an indictment violates a criminal defendant's "basic right" of the Fifth Amendment's grand jury guarantee. McKee, 506 F.3d at 229.

The version of 18 U.S.C. § 1591 in effect at the time of Armando's indictment makes it a crime for an individual to

knowingly in or affecting interstate or foreign commerce ... recruit[ ], entice[ ], harbor[ ], transport[ ], provide[ ], obtain[ ], or maintain[ ] by any means a person ... or benefit[ ], financially or by receiving anything of value, from participation in a venture which has engaged in [the foregoing actions] knowing, or in reckless disregard of the fact ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act[.]

18 U.S.C. § 1591(a) (2012). Subsection (c) of this statute imposes strict liability for any defendant who "had a reasonable opportunity to observe" the minor victim, "thus relieving the government's usual burden to prove knowledge or reckless disregard of the victim's underage status." United States v. Smith, 662 F. App'x 132, 136 (3d Cir. 2016) (nonprecedential) (quoting United States v. Robinson, 702 F.3d 22, 26 (2d Cir. 2012) ); see also 18 U.S.C. § 1591(c) (2012). Taken together, subsections (a) and (c) provide three different methods...