United States v. Sepulveda

420 F.Supp.3d 153

UNITED STATES of America

v.Wilfredo SEPULVEDA, Defendant.

No. 18-cr-363 (RJS)

United States District Court, S.D. New York.

Signed November 5, 2019

United States Attorney Geoffrey Berman and Assistant United States Attorneys Kyle Wirshba, Elinor Tarlow, and Alison Moe, United States Attorney's Office for the Southern District of New York, One Saint Andrew's Plaza, New York, NY 10007, for United States of America.

Noam Biale of Sher Tremonte LLP, 90 Broad Street, New York, NY 10004, and Samuel Gregory of the Law Offices of Samuel Gregory P.C., 45 Main Street, Brooklyn, NY 11201, for Defendant.

OPINION AND ORDER

Richard J. Sullivan, Circuit Judge:

On February 21, 2019, a grand jury returned a five-count superseding ("S3") indictment charging Defendant Wilfredo Sepulveda with the following offenses: (1) Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951 ; (2) narcotics (fentanyl) possession with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 ; (3) narcotics (heroin) possession with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 ; (4) use and brandishing of a firearm in connection with the offenses charged in Counts One through Three, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(i)–(ii) ; and (5) possession of a firearm after having previously been convicted of a felony, in violation of 18 U.S.C. §§ 2, 922(g)(1). (Doc. No. 48.) On March 25, 2019, the case proceeded to trial before a jury. (Doc. No. 78.)

On March 26, 2019, the government submitted a revised trial indictment containing the same charges set forth in the S3 indictment, except that it lowered the threshold quantity of fentanyl in Count Two from 450 grams to 40 grams pursuant to 21 U.S.C. § 841(b)(1)(B). On March 29, 2019, the jury returned a verdict of guilty on Counts One, Two, Three, and Five of the trial indictment, and acquitted Defendant on Count Four. (Doc. No. 77, Court Ex. 10.)

Now before the Court are (1) Defendant's April 12, 2019 renewed motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 on the counts of conviction, or, in the alternative, for a new trial on those counts pursuant to Rule 33 (Doc. No. 86); and (2) Defendant's August 5, 2019 motion to set aside his conviction on Count Five in light of the Supreme Court's June 21, 2019 decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) (Doc. No. 97). For the reasons set forth below, Defendant's April 12, 2019 motion is DENIED, and Defendant's August 5, 2019 motion is GRANTED as to his request for a new trial on Count Five, and DENIED in all other respects.

I. BACKGROUND

A. Facts¹

In April 2018, Defendant was $8,000 in debt to Sergio Polanco, a narcotics supplier from whom he had procured wholesale quantities of heroin three times in the preceding months. (Tr. 195:14–204:5.) Rather than pay Polanco back, Defendant decided to rob him. (Tr. 320:2–5.)

In preparation for the robbery, Defendant offered to pay his friend's sister, Solenny Abreu, $120 to sit on the stairs outside Polanco's apartment door until he left. (Tr. 308:17–309:14.) Abreu went to Polanco's apartment, but after waiting on the stairs for approximately forty-five minutes, she had to leave before Polanco came out. (Tr. 309:15–318:21.) Defendant met up with Abreu at a nearby McDonald's and paid her $80 for the effort. (Tr. 318:14–15.) A few days later, Defendant asked Abreu to return with him to Polanco's apartment in order to rob it. (Tr. 319:5–323:1.) This time, Abreu declined the request. (Tr. 322:15–17.)

Nevertheless, soon thereafter, Defendant went forward with the robbery. On May 14, 2018, Defendant called Polanco for the stated purpose of setting up a meeting at Defendant's apartment to settle part of his $8,000 debt. (Tr. 204:9–205:15.) When Polanco arrived at Defendant's apartment, however, Defendant was nowhere to be found. (Tr. 204:22–206:4.) Instead, when Polanco left his apartment for the scheduled meeting, Defendant, disguised in a woman's dress and wig, went to Polanco's apartment. (Tr. 122:8–125:11,426:11–12.) Armed with a knife and gun, Defendant gained access to the apartment (Tr. 148:16–23, 153:8–9, 155:8–9), where he encountered Polanco's mother-in-law, Ana Paulino, who was the only person home at the time (Tr. 148:11–14). Defendant brandished the weapons and forced Paulino to stay in her bedroom while he scoured the apartment in search of Polanco's drug stash. (Tr. 148:21–23, 149:6–150:20, 155:8–9.) Defendant eventually found the stash, consisting of 1.38 kilograms of heroin, 266 grams of fentanyl, and $13,000 in cash. (Tr. 92:18–20,102:7–109:3,209:16–21.)

Meanwhile, as Defendant was searching for the stash, a downstairs neighbor, Amaury Toro, heard "[a] lot of banging upstairs ... like some demolition work was going on." (Tr. 420:21–24.) Toro knew Paulino's grandson, Amaury Payano, from the neighborhood, and called him to see whether work was being done on his grandmother's apartment. (Tr. 412:12–413:14, 422:6–423:16.) Payano said he would call Polanco to find out. (Tr. 423:18–19.) While Payano waited to hear back from Polanco, Toro went upstairs to check on the apartment. (Tr. 423:20–25.) Toro was able to look through the peephole from the hallway, at which point Defendant came to the door and told him that Polanco was not home. (Tr. 423:23–424:17.) Toro then returned to his apartment downstairs, only to receive a call from Payano asking him to go back up to check on the apartment where his grandmother and Polanco lived. (Tr. 425:7–20.)

Toro thereupon left his apartment a second time, but immediately came upon Defendant leaving Polanco's apartment, still in disguise. (Tr. 425:22–426:20.) Defendant dropped his knife as he walked down the stairwell in front of Toro, who continued to follow him into the lobby of the apartment building and out into the street. (Tr. 428:20–430:3.) Toro then chased Defendant around the block, eventually catching up to him and tripping him. (Tr. 439:21–440:3.) Defendant brandished his gun and cocked it, but at that moment Toro managed to wrest the gun away from him. (Tr. 443:6–444:18.) A fight ensued; ultimately, Toro tackled Defendant and prevented him from escaping while bystanders called the police. (Tr. 444:21—447:23.) When the police arrived at the scene, they arrested Defendant and recovered a bag containing drugs and cash, as well as a dress, a wig, a knife, a gun, and Defendant's iPhone. (Tr. 61:3–21, 92:13–20,106:16–109:4.)

B. Procedural History

Defendant made a Rule 29(a) motion after the close of the government's case. (Tr. 651:24–25.) The Court heard brief arguments from Defendant and denied the motion. (Tr. 651:25–652:16.) Defendant then completed the examination of his sole witness (a paralegal called as a summary witness), after which the parties presented their closing arguments and the Court charged the jury. (Tr. 656:3–801:20.) After approximately five hours of deliberation, the jury returned guilty verdicts on Counts One through Three and Five, and a verdict of not guilty on Count Four. (Tr. 803:6, 819:8–9; Doc. No. 77, Court Ex. 10.) Defendant timely filed a renewed motion for a judgment of acquittal pursuant to Rule 29(c) and, in the alternative, a motion for a new trial pursuant to Rule 33, on April 12, 2019 (Doc. No. 86 ("Mem.")); the government filed its opposition on May 13, 2019 (Doc. No. 87 ("Opp'n")). On August 5, 2019, Defendant filed a second post-trial motion, arguing that his conviction on Count Five should be set aside in light of the Supreme Court's decision in Rehaif. (Doc. No. 97.) The government filed a response on August 9, 2019 (Doc. No. 99), and Defendant filed a reply on August 12, 2019 (Doc. No. 100).

II. LEGAL STANDARD

Rule 29(c)(2) provides that "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c)(2). In particular, the Court may grant an acquittal under Rule 29(c)(2) where the evidence at trial was legally insufficient to sustain a conviction. See United States v. Irving , 452 F.3d 110, 117 (2d Cir. 2006). Nevertheless, "[a] defendant challenging a conviction based on insufficient evidence bears a heavy burden." United States v. Aina-Marshall , 336 F.3d 167, 171 (2d Cir. 2003). "[T]he relevant question 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." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this analysis, a court does not assess witness credibility, resolve inconsistent testimony against the verdict, or otherwise weigh the significance of the evidence. See United States v. Autuori , 212 F.3d 105, 114 (2d Cir. 2000). Further, a court is to apply this test to "the totality of the government's case and not to each element, as each fact may gain color from others." United States v. Guadagna , 183 F.3d 122, 130 (2d Cir. 1999). "[T]he 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.’ " Id. (quoting United States v. White , 673 F.2d 299, 301 (10th Cir. 1982) ).

Pursuant to Rule 33, the court may, upon the defendant's motion, "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). "The defendant bears the burden of proving that he is entitled to a new trial under Rule 33." United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice. The trial court must be satisfied that competent, satisfactory and sufficient evidence in the record supports the jury verdict." United States v....