The opinion of the court was delivered by: Kauffman, J.
Now before the Court is Defendant's Motion for Judgment of Acquittal or New Trial (the "Motion"). For the reasons set forth below, the Motion will be denied.
This case presents an extraordinarily important issue: When the Government's conduct intentionally precludes the attendance at trial of a member of the defense team, is the defendant entitled to a new trial if he fails to prove actual prejudice resulting from the misconduct?
On February 1, 2007, a grand jury sitting in the Eastern District of Pennsylvania issued a Second Superseding Indictment charging Defendant Anthony Mark Bianchi ("Defendant") with conspiracy to engage in illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(e) (Count One);traveling with the intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) (Counts Two, Four, Six, Eight, and Nine); engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(c) (Counts Three, Five, Seven, and Ten); and using a facility in foreign commerce to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Counts Eleven and Twelve).
By a letter dated Saturday, July 14, 2007, with Defendant's trial scheduled to begin on Monday, July 16, 2007, the Government notified the Court that it was obtaining a warrant to charge Victor Levintsa ("Levintsa"), a Moldovan lawyer who it knew was assisting the defense, with witness intimidation in violation of 18 U.S.C. § 1512. See July 14, 2007 Letter, admitted as Court Exhibit 1 at Trial ("Ct. Ex. 1"). The same day, the Government notified defense counsel by telephone of its decision to arrest Levintsa if he came to the United States. The Government then obtained the arrest warrant from Magistrate Judge M. Faith Angell. See Arrest Warrant for Victor Levintsa dated July 14, 2007, attached to Gov't Resp. at Exhibit B ("Ex. B").*fn1
The Court conducted a hearing regarding the Government's actions on July 16, 2007, prior to the start of trial. At the hearing, the Government withdrew the warrant and informed the Court that Levintsa could testify in the United States without threat of arrest for the conduct that formed the basis of the warrant. On July 17, 2007, Regional Security Officer Cameron Burks obtained assurances from the Moldovan Government that it would not charge or question Levintsa or prohibit him from leaving Moldova in conjunction with the alleged witness intimidation, and that it would postpone a criminal investigation until further notice from the United States. See Burks Decl., attached to Gov't Supplemental Reply at Ex. 1. Nevertheless, Levintsa refused to come to the United States to testify. The defense agreed to arrange for him to testify by live video feed from Moldova even though Defendant's counsel asserted that "it was not clear that a live deposition of Levintsa would or could serve as an adequate substitute for his in-court testimony." Def. Mot. 8. However, on the morning of July 25, 2007, the day Levintsa was scheduled to arrange the video feed, and despite the Government's assurances, he received a phone call from a Moldovan police officer, Iurie Slivciuc ("Slivciuc"), who "told [Levintsa] that he had questions to [ask Levinsta] and invited [him] to come to the [Moldovan Center for Combating Trafficking in Persons ("CCTIP")] of the Ministry of the Interior." "Explanation" from Victor Levintsa to Director of the CCTIP dated July 27, 2007, attached to Gov't Resp. at Exhibit E ("Ex. E"). Levintsa informed Slivciuc that under Moldovan law, he was not allowed to provide any information regarding his professional activities with respect to this case. See id. Levintsa claims that Slivciuc responded that he could subpoena him, fine him, or issue a warrant, so he met with Slivciuc that evening. See id.
Levintsa subsequently executed a declaration dated July 25, 2007, stating that he no longer was willing to cooperate with the defense due to "the intimidation of both the United States Attorney General and the Moldovan Police." July 25, 2007 Decl. of Victor Levintsa ¶ 15, admitted as Court Exhibit 2 at trial ("Ct. Ex. 2").*fn2 At the Court's request, the Government investigated whether the United States had a role in the events of July 25, 2007. The Government obtained a letter from the United States Ambassador to Moldova, Michael D. Kirby, which stated that "[i]n no way was [the July 25 interview] sought or requested by the Embassy. Subsequent to learning that this interview took place, we have been in touch with the Government of Moldova, and have confirmed that Mr. Levintsa is not the target of a criminal investigation at this time. We have further confirmed that he is free to depart Moldova at any time and is free to provide testimony in this case." July 26, 2007 Letter from Ambassador Kirby, admitted as Court Exhibit 4 at Trial ("Ct. Ex. 4"). The letter further stated that "[i]n the interests of ensuring a fair trial, the Embassy is at the disposal of the Court to provide any assistance which may be required to permit Mr. Levintsa to participate fully." Id. The Government also obtained a letter of assurance from the Deputy Director of the CCTIP which stated that "Mr. Victor Levita [sic] is not a target of criminal investigation. Also . . . Mr. Levinta [sic] is free to travel outside the Republic of Moldova. Furthermore, we would like to inform you that Mr. Victor Levinta [sic] can provide video testimony from the Republic of Moldova to the United States. We would like to assure you that the Center of Combating Trafficking in Persons will assist Mr. Victor Levinta [sic] to conduct this testimony." July 26, 2007 Letter from Deputy Director of the CCTIP, admitted as Court Exhibit 5 at Trial ("Ct. Ex. 5").
Despite the assurances obtained by the Government, Levintsa remained unwilling to travel to the United States or to testify via video feed. The Court then proposed that a declaration from Levintsa be prepared and read to the jury. Levintsa agreed to work with the defense on a declaration containing all of the information that would have been included in his testimony at trial.*fn3 After the Court ruled on objections from the parties regarding Levintsa's proposed declaration, defense counsel read the revised declaration to the jury with no opportunity for the Government to cross-examine. See July 30, 2007 Decl. of Victor Levintsa, attached to Gov't Resp. at Exhibit F ("Ex. F"). At the close of trial, the jury returned a verdict of guilty on Counts One through Five and Counts Eight through Twelve of the Second Superseding Indictment.*fn4
Defendant subsequently filed the instant Motion.
Defendant asserts that the Government's notification of its decision to obtain a warrant for Levintsa's arrest deprived him of his ability to call Levintsa as a witness for the defense and also deprived him of Levintsa's assistance during the course of trial. He alleges violations of his rights to: (1) due process under the Fifth Amendment, (2) an impartial jury trial under the Sixth Amendment, (3) compulsory process for obtaining witnesses in his favor under the Sixth Amendment, and (4) assistance of counsel under the Sixth Amendment. See Def. Mot. 1-2. Defendant's Motion and supporting papers do not include any argument with respect to the impartial jury claim other than an initial blanket assertion that the right was violated.
A. Legal Standard Under Rule 29
Federal Rule of Criminal Procedure 29 provides, in relevant part, that the trial court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). The Supreme Court has held that the critical inquiry on review of the sufficiency of evidence "is whether, after viewing the evidence in the light most favorable to the prosecution, anyrational 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); see also United States v. Taftsiou, 144 F.3d 287, 290 (3d Cir. 1998) (explaining that review of a Rule 29 motion requires the Court to "interpret the evidence in the light most favorable to the government as the verdict winner" (citing United States v. Rieger, 942 F.2d 230, 232 (3d Cir. 1991))).
B. Legal Standard Under Rule 33
Federal Rule of Criminal Procedure 33 provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). The decision to grant a new trial lies within the discretion of the Court. See, e.g., United States v. Henry, 2007 WL 2458555, at *2 (E.D. Pa. Aug. 24, 2007). Rule 33 "may be applied where there is a finding of prosecutorial misconduct, as well as when the trial court does not believe that the evidence supports the jury's verdict." United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (citation omitted); see also Henry, 2007 WL 2458555, at *2 ("In exercising its discretion, the court may grant a motion for a new trial on one of two grounds. First, the court may grant the motion if, after weighing the evidence, it determines that there has been a miscarriage of justice. Second, the court must grant a new trial if trial error had a substantial influence on the verdict." (citations and internal quotation marks omitted)). The Court should grant a new trial on the basis of trial errors "only when the errors, when combined, so ...