United States v. Rivera

• Decision Date: 18 June 2012
• Docket Number: 09-CR-619(SJF)
• Parties: UNITED STATES OF AMERICA, Plaintiffs, v. ANTONIO RIVERA, JASMIN RIVERA, JOHN WHALEY and JASON VILLAMAN, Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

UNITED STATES OF AMERICA, Plaintiffs,

v.ANTONIO RIVERA, JASMIN RIVERA,JOHN WHALEY and JASON VILLAMAN, Defendants.

09-CR-619(SJF)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: June 18, 2012

OPINION & ORDER

FEUERSTEIN, J.

On May 26, 2011, defendant Antonio Rivera ("Rivera") was convicted, upon a jury verdict, of one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a), effective October 28, 2000 to December 22, 2008¹ (count one of the superceding indictment); one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 1594(c), effective December 23, 2008, and 1591(a), as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. 110-457, 122 Stat. 5044, Title II, § 222(b)(5), enacted on December 23, 2008.² (count fourteen of the superceding indictment); four (4) counts of sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. § 1591(a) (2000) (counts two through five of the superceding indictment); two(2) counts of sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. § 1591(a) (2009) (counts fifteen and sixteen of the superceding indictment); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 371 and 1589, effective October 28, 2000 to December 22, 2008³ (count six of the superceding indictment); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 1589(d), as amended by the TVPRA,⁴ effective December 23, 2008, and 1594(b), effective December 23, 2008 (count seventeen of the superceding indictment); seven (7) counts of forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2000) (counts seven through thirteen of the superceding indictment); four (4) counts of forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2009) (counts eighteen through twenty-one of the superceding indictment); one (1) count of conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (count twenty-two of the superceding indictment); seven (7) counts of transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (counts twenty-three through twenty-nine of the superceding indictment); and seven (7) counts of alien harboring in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (counts thirty through thirty-six of the superceding indictment).

Defendant John Whaley ("Whaley") was convicted, upon a jury verdict, of one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a) (2000) (count one of the superceding indictment); one (1) count of conspiracy to commit sex trafficking in violation of, inter alia, 18 U.S.C. §§ 1594(c)and 1591(a) (2009) (count fourteen of the superceding indictment); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§371 and 1589 (2000) (count six of the superceding indictment); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 1589(d) and 1594(b) (2009) (count seventeen of the superceding indictment); four (4) counts of forced labor in violation of, inter alia, 18 U.S.C. §1589 (2009) (counts eighteen through twenty-one of the superceding indictment); one (1) count of conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (count twenty-two of the superceding indictment); five (5) counts of transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (counts twenty-four through twenty-eight of the superceding indictment); and five (5) counts of alien harboring in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (counts thirty-one through thirty-five of the superceding indictment).

Defendant Jason Villaman ("Villaman") was convicted, upon a jury verdict, of one (1) count of conspiracy to commit sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 371 and 1591(a) (2000) (count one of the superceding indictment); two (2) counts of sex trafficking by means of force, fraud and coercion in violation of, inter alia, 18 U.S.C. §§ 1591(a) and (b)(1) (2000) (counts two and three of the superceding indictment); one (1) count of conspiracy to commit forced labor in violation of, inter alia, 18 U.S.C. §§ 371 and 1589 (2000) (count six of the superceding indictment); two (2) counts of forced labor in violation of, inter alia, 18 U.S.C. § 1589 (2000) (counts seven and eight of the superceding indictment); one (1) count of conspiracy to transport and harbor aliens in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (count twenty-two of the superceding indictment); four (4) counts of transportation of aliens within the United States in violation of, inter alia, 8 U.S.C. § 1324(a)(1) (counts twenty-three, twenty-four, twenty-seven and twenty-nine of the superceding indictment); and five (5) counts of alien harboringin violation of, inter alia, 8 U.S.C, § 1324(a)(1) (counts thirty, thirty-one and thirty-four through thirty-six of the superceding indictment).

Rivera, Whaley and Villaman (collectively, "defendants") have not yet been sentenced upon their respective convictions. Whaley now moves pursuant to Rules 29(c)(2) and 33 of the Federal Rules of Criminal Procedure, respectively, to set aside the jury verdict and (1) enter a judgment of acquittal or (2) for a new trial, and Villaman and Rivera move pursuant to Rule 33 of the Federal Rules of Criminal Procedure to set aside the jury verdict and for a new trial.

I. DISCUSSION

A. Rule 29

1. Standard of Review

"Under Rule 29, '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." United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011). cert. denied, 132 S. Ct. 1637,182 L. Ed. 2d 246 (2012) (citing Fed. R. Crim. Pro. 29(a)); see also United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006) ("[T]he very nature of . . . motions [for acquittal pursuant to Rule 29] is to question the sufficiency of the evidence to support a conviction." (alterations in original)). Rule 29(c)(2) of the Federal Rules of Criminal Procedure provides, in relevant part, that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal."

"The test for sufficiency is whether, as to a given count, a 'rational trier of fact could have found the defendant guilty beyond a reasonable doubt.'" Persico, 645 F.3d at 104 (quoting United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)): see also United States v. O'Connor, 650F.3d 839, 855 (2d Cir. 2011). cert. denied, 132 U.S. 1040, 181 L. Ed. 2d 791 (2012) ("In considering * * * a challenge [to the sufficiency of the evidence], [the court] must credit every reasonable inference that the jury could have drawn in the government's favor, * * * [and] affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt * * *." (citations omitted)). On a Rule 29 motion made after a jury has rendered a verdict of guilty, the defendant "carries a heavy burden, and must show that when viewing the evidence in its totality, in a light most favorable to the government, and drawing all inferences in favor of the prosecution, no rational trier of fact could have found him guilty." United States v. Irving, 452 F.3d 110,117 (2d Cir. 2006); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (holding that the test for determining the sufficiency of the evidence 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."); United States v. Litwok, 678 F.3d 208,2012 WL 1478796, at * 3 (2d Cir. 2012) ("A defendant who challenges the sufficiency of the evidence after a conviction bears a heavy burden * * * '." (citation omitted)); United States v. Abu-Jihaad. 630 F.3d 102, 134-5 (2d Cir. 2010). cert. denied, 131 S. Ct. 3062,180 L. Ed. 2d 892 (2011) ("A defendant mounting a sufficiency challenge * * * bears a very heavy burden * * * because a court must uphold a jury verdict so long as 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (citations omitted)). "[A] court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010) (quotations and citation omitted); seealso Temple, 447 F.3d at 136 (accord). "Viewing the evidence in the light most favorable to the government means crediting every inference that the jury might have drawn in favor of the government * * * and recognizing that the government's evidence need not exclude every other possible hypothesis." United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008) (internal quotations and citations omitted); see also United States v. Cote, 544 F.3d 88, 98 (2d Cir. 2008) (holding that on a Rule 29 motion, the evidence must be considered "in its totality, not in isolation, and the government need not negate every possible theory of innocence.").

"In assessing the evidence, a court is constrained to bear in mind that Rule 29 'does not provide [it] with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury.'" Temple, 447 F.3d at 136 (quoting United States v....