United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
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).
Factual Background and Procedural History
January 2015, a federal grand jury returned a three-count
indictment charging Albert 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 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.
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.
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.
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.
Rule 29 Motion for Judgment of Acquittal
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.
Rule 33 Motion for a New Trial
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)
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
Sufficiency of the Evidence
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).
Count 1 - Sex Trafficking of Minors, 18 U.S.C. §
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).
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
grand jury testimony likewise reveals that she worked with
D'Ambrosio and paid him a percentage of her prostitution
proceeds. 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).
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