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United States v. Borbon

November 23, 2009

UNITED STATES OF AMERICA,
v.
JAMIE CARDENAS BORBON, ANTONIO AVILA, FERNANDO BELTRAN, AND ROGELIO LOPEZ DEFENDANT



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court are defendants' post-trial motions. Defendant Rogelio Lopez ("Lopez") moves for judgment of acquittal or, in the alternative, for a new trial, and defendants Jamie Cardenas-Borbon ("Cardenas-Borbon") and Fernando Beltran ("Beltran") join said motion. (Doc. 1234, 1235, 1237, 1242, 1248.) Defendant Antonio Avila ("Avila") requests a new trial, arrest of judgment,*fn1 or, in the alternative, judgment of acquittal, and Beltran joins his motion. (Doc. 1236, 1243, 1248.) For the reasons that follow, the motions will be denied.

I. Factual Background & Procedural History

On September 17, 2008, an indictment*fn2 was filed charging Cardenas-Borbon, Avila, Beltran, and Lopez (collectively, "defendants") and other individuals with a variety of crimes. In pertinent part, count 1 charged the defendants with conspiracy to distribute cocaine hydrochloride, crack cocaine, or marijuana, or conspiracy to possess with intent to distribute; count 2 charged them with distribution or possession with intent to distribute cocaine hydrochloride; count 3 alleged that Lopez distributed or possessed with the intent to distribute marijuana; and counts 5 and 8 charged Avila and Beltran with attempted escape and use of an interstate facility in aid of bribery. (Doc. 828.) The parties are familiar with the underlying factual record-which is voluminous-and therefore, the court will set forth only those facts which are relevant to the court's analysis of the pending motions. See III. Discussion, infra. In general, it is sufficient to note that the government presented evidence that defendants were involved in large scale drug trafficking, and that at various points in time, they supplied drugs to Amauris Sanchez ("Sanchez"), who ran a drug trafficking organization in central Pennsylvania. The government's evidence also showed that Sanchez, Avila, and Beltran were subsequently incarcerated at the same facility and that they planned an escape which involved bribing members of the prison staff.

Trial began with jury selection on June 8, 2009, and the case was submitted to the jury roughly two weeks later, at approximately 6:00 p.m. on June 23, 2009. (Doc. 1282 at 1; Doc. 1418 at 4.) Counts 1, 2, 3, 5, and 8 were submitted to the jury. (Doc. 1214.) In their respective motions, defendants allege that a court security officer overheard a juror say "Let's hurry up and convict the defendants so that we can get out of here." (Doc. 1282 at 4.) After deliberating approximately two and a half hours, the jury found the defendants guilty on counts 1, 2, 5, and 8, but the jury acquitted Lopez of distribution or possession with intent to distribute marijuana. (Doc. 1214; Doc. 1282 at 1-2; Doc. 1418 at 4.) On June 30, 2009, defendant Lopez filed a motion for judgment of acquittal or, in the alternative, for a new trial, which defendants Cardenas-Borbon and Beltran subsequently joined. (Doc. 1234, 1235, 1237, 1242, 1248.) On the same date, defendant Avila filed post-trial motions, which defendant Beltran later joined. (Doc. 1236, 1243, 1248.) The defendants filed a joint brief in support of their post-trial motions, (Doc. 1282), and the government filed a brief in opposition (Doc. 1418). The motions are now ripe for disposition.

II. Standard of Review

On a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, the court must "sustain the verdict if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury's decision." United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006); see also United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) ("[A] district court must . . . 'determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001))).

Pursuant to 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). When reviewing a motion for a new trial based on a "weight of the evidence" argument, a district court may order a new trial only if the court "believes that 'there is a serious danger that a miscarriage of justice has occurred-that is, that an innocent person has been convicted.'" United States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003) (citation omitted).

III. Discussion

Lopez moves under Rule 29(c) for the court to enter a judgment of acquittal with respect to counts 1 and 2; he contends that the evidence against him was insufficient to sustain a conviction. Cardenas-Borbon and Beltran join this motion. Avila, joined by Beltran, also makes a motion pursuant to Rule 29(c) requesting that the court enter a judgment of acquittal with respect to counts 5 and 8, and he claims that the evidence tending to prove his guilt was insufficient. In the post-trial motions that Avila originally filed, he made a variety of other arguments which the defendants' joint brief in support of the pending motion did not renew, but the court will address these arguments nevertheless. In addition, all defendants contend that the interests of justice require the court to grant a new trial pursuant to Rule 33(a). The court will address these issues seriatim.

A. Lopez's Motion for Judgment of Acquittal on Counts 1 and 2

The jury found all defendants guilty on counts 1 and 2; thus, the jurors necessarily concluded that the government proved the elements of the crimes charged therein beyond a reasonable doubt. The court will first address count 2, which alleged that the defendants distributed certain narcotics, or possessed narcotics with the intent to distribute them, and then turn to count 1, which charged the defendants with a conspiracy to do the same.

Count 2 required the government to prove that the defendants were in either actual or constructive possession of powder cocaine, crack cocaine, or marijuana. See United States v. Introcaso, 506 F.3d 260, 270-71 (3d Cir. 2007). The Third Circuit has explained that, in order to show constructive possession, the government must submit sufficient evidence to support an inference that the individual "knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or ...


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