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United States v. D'Ambrosio

United States District Court, M.D. Pennsylvania

August 12, 2019

UNITED STATES OF AMERICA
v.
ANTHONY F. D'AMBROSIO (2), Defendant

          MEMORANDUM

          Christopher C. Conner, Chief Judge

         In December 2017, a jury convicted defendant Anthony F. D'Ambrosio (“D'Ambrosio”) of six offenses involving prostitution, sex trafficking of minors, distribution of controlled substances, and related conspiracies. D'Ambrosio moves for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, a new trial under Rule 33, and arrest of judgment under Rule 34. (See generally Docs. 477, 595, 604).

         I. Factual Background and Procedural History

          In January 2015, a federal grand jury returned a three-count indictment charging Albert Martinez (“Albert”)[1] 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 D'Ambrosio in all seven counts: 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). Counts 1, 2, 3, and 7 include aiding and abetting charges under 18 U.S.C. § 2(a).

         Prior to trial, two defendants pled guilty. One of those defendants was Albert, the admitted leader of the prostitution organization, who later testified at trial for the government. D'Ambrosio, along with codefendants Antonio Delgado (“Antonio”), Armando Delgado (“Armando”), 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, trial proceeded against D'Ambrosio, Armando, and Antonio.

         At the close of the government's case, all three defendants moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. The court granted D'Ambrosio's and Armando's Rule 29 motions in part, entering judgment of acquittal on Count 3 of the superseding indictment. 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 their convictions, D'Ambrosio and Armando renewed their motions for judgment of acquittal and moved for a new trial pursuant to Federal Rule of Criminal Procedure 33. Armando was acquitted on Count 5 due to insufficient evidence, and his conviction on Count 1 was reversed because the superseding indictment had been constructively amended by the jury instructions. The government decided not to retry Armando on Count 1. While Armando's post-trial motions were being litigated, D'Ambrosio obtained new counsel, who filed two additional rounds of post-trial motions. In total, D'Ambrosio asserts eight grounds for relief. The motions are fully briefed and ripe for disposition.

         II. Legal Standards

         A. Rule 29 Motion for Judgment of Acquittal

         On 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 (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 (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 Federal Rule of Criminal Procedure 33, “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 in a light favorable 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

         D'Ambrosio argues that the evidence adduced at trial is insufficient to sustain his convictions on Counts 1 and 5. Alternatively, he maintains that-like his codefendant Armando-he is entitled to reversal of conviction on Count 1 because the government constructively amended the superseding indictment. He also presents a bevy of Rule 33 claims seeking a new trial. Finally, he moves to arrest judgment on Counts 2 and 5, asserting that the superseding indictment is fatally defective as to those counts. We will address these claims seriatim.

         A. Sufficiency of the Evidence

         D'Ambrosio's sufficiency claims are straightforward. He argues that the government proffered insufficient evidence to prove the two convictions involving minors-sex trafficking of a minor (Count 1) and conspiracy to transport a minor to engage in prostitution (Count 5).

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

         D'Ambrosio contends that there was no evidence at trial establishing that he “recruited, enticed, harbored, or transported any minor to engage in a commercial sex act” or that he benefitted financially from such an action. (Doc. 478 at 2). We disagree.

         Minor victim A.B. testified extensively about working with both Albert and D'Ambrosio in Harrisburg, Pennsylvania, on her first night as part of the prostitution organization. A.B. attested that she worked with D'Ambrosio that night and that D'Ambrosio drove her. (12/11/17 Trial Tr. 74:7-8, 10-15, 80:20-25, 91:12-15). She explained that D'Ambrosio informed her and several other victims about “everything” involved with the prostitution process, going “over e-mails, phones, [and] text mail ap[p]s.” (Id. at 74:12-14). A.B. specifically confirmed that, during this first night, she met with paying customers and worked as a prostitute. (Id. at 111:24-112:4).

         A.B.'s grand jury testimony likewise reveals that she worked with D'Ambrosio and paid him a percentage of her prostitution proceeds.[2] During trial A.B. repeatedly denied working with D'Ambrosio other than on the first night and disavowed any payment arrangement with him. (Id. at 75:22-24, 76:17-19, 77:9-13, 23-24, 78:21-79:1, 88:4-7, 91:12-24). However, A.B. conceded that before the grand jury she had testified that D'Ambrosio drove her and that she had a “fifty-fifty” fee-splitting arrangement with him. (Id. at 76:20-80:13). This grand jury testimony is bolstered by Albert's trial testimony, during which he explained that D'Ambrosio was one of only two people he permitted to drive A.B. to appointments. (12/6/17 Trial Tr. 86:22-87:12). In view of the foregoing testimony, we have little difficulty finding that sufficient evidence supports the jury's determination that D'Ambrosio “transport[ed]” a minor for prostitution or benefitted financially therefrom. See 18 U.S.C. § 1591(a) (2012).

         D'Ambrosio does not explicitly challenge the mens rea component of Count 1 regarding the minor victim's age, but he does cite to certain evidence tending to show that he was unaware that A.B. was 17 years old. We are satisfied that, although the record evidence is far from overwhelming, sufficient evidence exists to establish that D'Ambrosio committed the above-mentioned acts “knowing” that A.B. was a minor or “in reckless disregard” of that fact. See id.; (Doc. 23 at 1-2). In particular, the jury heard evidence of recorded telephone calls D'Ambrosio made only a few days after his arrest on the superseding indictment and prior to the government disclosing any discovery materials. (See 12/12/17 Trial Tr. 15:10-13, 32:8-14, 43:2-14). Notably, the superseding indictment identifies the minor victims only as “Minor [A, B, C, or D].” (See Doc. 23 at 7-9). In D'Ambrosio's phone calls, however, he frequently refers to A.B. by her first and last name and indicates that she may be-in the government's parlance-“the ...


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