United States v. Borda

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
Criminal Action No. 07-0O65 (GK)
CHRISTIAN FERNANDO BORDA, 1
z FILEn
Defendants. 2 APR 27 20"
C|erk, U.S. District and
Bankruptcy Courts
MEMORANDUM OPINION
Defendants Christian Fernando Borda and Alvaro Alvaran-Velez
bring this Motion for New Trial, pursuant to Federal Rule of
Criminal Procedure 33. On December 9, 20lO, Defendants were
convicted under the Controlled Substances Import and Export Act, 21
U.S.C. §§ 951 et seq¢, of conspiracy to distribute five kilograms
or more of cocaine with the intent or knowledge that the cocaine
would be unlawfully imported into the United States. _ee Verdict
Form as to Christian Fernando Borda [Dkt. No. 207]; verdict Form as
to Alvaro Alvaran-Vele2 [Dkt. No. 209]; 21 U.S.C. §§ 959, 960, 963.
Under Federal Rule of Criminal Procedure 29, Defendants first moved
for judgment of acquittal, which this Court denied in a Memorandum
Opinion on March 9, 2011 (Mem. Op.) [Dkt No. 238].
On January 15, 201l, Defendants filed a Joint Motion for New
Trial, (Defs.' Mot.)[Dkt. No. 227], under Federal Rule of Criminal
Procedure 33, arguing that a new trial is warranted in the interest
of justice as the Jury's verdict is against the weight of the
evidence and resulted from numerous errors.
Upon consideration of the Motion, the Opposition, the Reply,
the entire record herein, and the applicable case law, Defendants'
Joint Motion for New Trial is denied.l
I. Background
Defendants were each convicted of conspiring, beginning in
January 2005 and continuing at least to October 2005, to distribute
five or more kilograms of cocaine with the intent or knowledge that
the cocaine would be unlawfully imported into the United States.
_§e 21 U.S.C. §§ 959, 963. At trial, Defendants did not dispute
that they had distributed cocaine during that period, but argued
that they neither knew nor intended that the cocaine would be
unlawfully imported into the United States.
The Government offered evidence of three separate drug deals
in 2005. The first deal, “Palm Oil One,” took place between January
and May 2005. ln Paln1 Oil One, Defendants Borda and Alvaran
arranged to ship 1,553 kilograms of cocaine concealed in drums of
palm oil from Cartagena, Colombia to Puerto Progreso, Mexico. Upon
1 ln their submissions on the Motion for New Trial, parties
incorporate by reference the arguments contained in their briefing
on the Motion for Judgment of Acquittal. Defs.’ Mot. 1;
Government’s Opposition to Defendants’ Second Corrected Motion for
New Trial 1 (Feb. l4, 2011) (“Gov’t Opp'n”) [Dkt. No. 23l]. As
these arguments were addressed in the Court's March 9, 2011
Memorandum Opinion, the Court does not reconsider them here to the
extent that they are not expressly raised by the parties.
_2_
the shipment’s arrival in Puerto Progreso, an associate named Raul
Valladeres, or “Junior,” contacted Defendants to say that he could
transport the cocaine to Monterrey, Mexico and would pay Borda
$9,l00 per kilogram within ten days after receipt of the drugs. Tr.
at 18:24-20:18, 25:10-28:15 A.M. Session, Nov. 4, 2010. Defendants
agreed to Junior’s proposal, and Junior transported the cocaine
north to Monterrey. lQ;; Gov’t Ex. 40b at 3-4.
The Government introduced evidence that Monterrey is located
less than two hours away from the United States border. The
Government’s evidence also showed that Monterrey is an inland city
in Mexico with insufficient demand for a load of cocaine as large
as the Palm Oil One load. §ee Gov’t Ex. 40b at 6 (Defendant Alvaran
stated that Monterrey is “not a market for personal use”).
In addition, the Government introduced the following evidence
to prove that Defendants were aware that Junior was trying to sell
the cocaine across the Mexican border into the United States.
First, on June l5, 2005, Defendant Alvaran met with the
Government’s confidential informant, Camilo Suarez, after Junior
had failed to pay Defendants for Palm Oil One within ten days of
his receipt of the drugs. Suarez testified at trial that, in the
course of that meeting, Alvaran expressed his understanding that
the cocaine had been moved north of Mexico City to Monterrey. Tr.
at 22:2-9 P.M. Session, Nov. 15, 20l0; Gov’t Ex. 34b.
Second, on July 20, 2005, Borda met with Alvaran and Suarez to
discuss Junior’s progress in making payments for Palm Oil One,
Suarez defended Junior’s delay to Borda by explaining that the
“market went bad because the border got, [] harder for him.” Gov’t
Ex. 40b at 3-7. Defendants then discussed the conditions at the
border in further detail. Id. At one point, Borda noted that he
understood Junior's difficulties because he had once been a drug
dealer in the United States. ld. at 10. Borda also went on to
explain that his source for cocaine in Colombia had told him how
such transactions usually proceed:
[Mexicans] get the merchandise, they say
they'll take it, they pay us nine thousand in
Monterrey and they go and sell it on the other
side2 for, for fourteen thousand or fifteen
thousand pesos, and we’re the ones that are
losing because we lose time, money and
everything else.
Id. at 22-23.
Third, Suarez testified at trial that “[a]ll 1,553 [kilograms]
went to the United States.” Tr. at 44:5-9 A.M. Session, Nov. l8,
2010. Suarez also testified that he did not recall any discussion
that Borda’s 724 kilogram share of the Palm Oil One cocaine was
going to Europe. Tr. at 46:13~17 P.M. Session, Nov. l8, 20l0f
2 “On the other side” refers to the United States.
3 1n their Motion for Judgment of Acquittal, Defendants argued
that this testimony was contradicted by Suarez’s subsequent
testimony on November 22, 2010 that he did not know what Junior had
done with the cocaine. In its March 9, 2011 Memorandum Opinion, the
(continued...)
_4_
Finally, both Suarez and Borda’s secretary in Mexico City, Juan
Montoya, testified at trial that payment was received from Junior
for Palm Oil One in United States currency. Tr. at 45:17-24 A.M.
Session, Nov. 17, 20l0; Tr. at 7l:9~18 A.M. Session, Nov. 24, 2010.
In. the second deal, “Paln1 Oil Two,” Defendants discussed
shipping additional cocaine from Colombia to Mexico, but ultimately
never did so because of their difficulties in receiving payment for
Palm Oil One, Finally, the third deal, named the “Chino Load,” was
3(...continued)
Court rejected this characterization:
[T]his argument takes Suarez’s testimony out of context.
On November 22, 20l0, Suarez testified that he lacked any
knowledge on November 22, 2005--the date of the recording
about which he was being questioned--as to what Junior
had done with the drugs. Tr. at 31:5-34:15 A.M. Session
Nov. 22, 2010. There is no contradiction between this
statement and his testimony at trial regarding his
current knowledge about the final destination of the
cocaine.
ld. at 4 n.2.
1n their Reply brief, Defendants challenge this conclusion.
Defendants’ Reply to Government's Opposition to Their Motion for
Judgment of Acquittal and For a New Trial 11-12 (Mar. l4, 201l)
(“Defs.’ Reply”) [Dkt No. 241]. Defendants assert that evidence
introduced at trial and contained in an April 2006 email, at which
point “the Palm Oil [One] deal was completed [and] no more monies
were paid,” shows that “there is no basis for believing that Suarez
learned any additional information after that date that could be
imputed to the defendants” about the final destination of the
cocaine shipment. lQL at l1. However, as with the November 2005
statement, there is no contradiction between the April 2006
statement and Suarez's testimony at trial “regarding his current
knowledge about the final destination of the cocaine.” Mem. Op. 4
n.2.
scheduled for September 2005. ln this third deal, Borda, Alvaran,
and an associate named “El Chino” agreed to transport a second load
of 3,000 kilograms of cocaine from Colombia to Mexico City, Mexico
in two “go-fast boats,” one of which was a Venezuelan-registered
fishing vessel. However, the crew of that fishing vessel, which was
carrying half of the Chino Load, threw the cocaine into the
Caribbean Sea shortly before being intercepted by the United States
Coast Guard. Tr. at 41:24-42:17 A.M. Session, Nov. l6, 2010.
Conseguently, the United States Coast Guard found no cocaine on the
ship.
On the basis of this evidence, the Jury returned a verdict of
guilty against Defendant Borda and Defendant Alvaran, concluding
that each conspired to distribute more than five kilograms with the
knowledge or intent that the cocaine would be unlawfully imported
into the United States.
II. Standard of Review
Under Federal Rule of Criminal Procedure 33(a), “[u]pon the
defendant’s motion, the court may vacate any judgment and grant a
l
new trial if the interest of justice so requires.' ln deciding a
motion for new trial, the court has broad discretion. United States
v. Lam Kwong-Wah, 924 F.2d 298, 308 (D.C. Cir. 1991); United States
v. Reese, 561 F.2d 894, 902 (D.C. Cir. 1977).
Motions for new trial are “not favored and are viewed with
great caution.” United States v. Blackthorne, 378 F.3d 449, 452
_6_
(5th Cir. 2004) (citations omitted). Contrary to the Government’s
burden at trial to prove guilt beyond a reasonable doubt,
Defendants bear the burden of proof under Rule 33 to demonstrate
that a new trial is warranted. United States v. Manqieri, 694 F.2d
1270, 1285 (D.C. Cir. 1982)i BQ§§§, 561 F.2d at 902.
Despite the court's broad authority to order a new trial, it
should be “exercised sparingly” and “limited to situations
presenting a serious danger that a ndscarriage of justice has
occurred - that is, that an innocent person has been convicted.”
United States v. Wilkerson, 656 F. Supp. 2d 22, 28 (D.D.C.
2009)(internal quotations and citations omitted). A new trial may
be granted “only in the extraordinary circumstances where the
evidence preponderates heavily against the verdict,” United States
v. Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990)(internal quotations
and citations omitted).
Unless an error, defect, irregularity, or variance affects a
defendant’s substantial rights, it shall be disregarded. United
States v. Lawson, 494 F.3d 1046, 1053 (D.C. Cir. 2007). In cases
where such rights are adversely affected, the error must have a
“substantial and injurious effect or influence in determining the
verdict” in order to warrant a new trial. United States v.
Dominquez Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333(2004)(alteration in original)(internal quotations and citation
omitted). The Government “‘bears the burden of proving the absence
of such an effect.’” United States v. Smith, No. 09-3119, 2011 WL
1437378, at *6 (D.C. Cir. Apr. 15, 201l) (quoting United States v.
Linares, 367 F.3d 94l, 952 (D.C. Cir. 2004)).
ln deciding whether a new trial should be held, the court may
weigh the evidence and consider the credibility of witnesses to
determine whether a serious miscarriage of justice has occurred.
Tibbs v. Florida, 457 U.S. 31, 38 n.11, 102 S. Ct. 2211 (1982);
Rogers, 918 F.2d at 213. As noted by the Supreme Court in Iibb§,
the court in_ making this determination essentially sits as a
“thirteenth juror.” 457 U.S. at 42; Brodie v. United States, 295
F.2d 157, 160 (D.C. Cir. 1982) (internal quotations and citation
omitted); Wilkerson, 656 F. Supp. 2d at 28 (internal quotations and
citation omitted).
III. Analysis
Defendants raise the following five claims to support their
motion for a new trial: (1) the evidence offered by the Government
is insufficient to sustain the Jury’s verdict that Defendants had
the necessary intent, as required by statute, for conviction of
conspiracy to distribute cocaine with the intent or knowledge that
it would be unlawfully imported into the United States; (2) the
Government’s closing remarks improperly argued facts not in the
record and invited the Jury to speculate that Defendants knew or
intended to import cocaine into the United States; (3) the Court
violated Defendants’ Sixth Amendment confrontation and due process
_3_
rights by excluding key evidence; (4) the Court's Final Jury
Instructions were flawed; and (5) the Court erred in precluding
Defendant Alvaran's closing argument regarding lack of evidence
that the Palm Oil One cocaine shipment had been imported into the
United States.
A. Evidence of Intent
A conviction under 21 U.S.C. § 959 requires proof of intent or
actual knowledge; it is not enough to merely show that a defendant
should have known that the illegal substance would be unlawfully
imported into the United states. United States v. Chan Chun-Yin,
958 F.2d 440, 443 (D.C. Cir. l992). However, “proof [of a
defendant’s actual knowledge] may take the form of circumstantial
as well as direct evidence.” lQ4 (citations omitted).
Defendants argue that evidence introduced by the Government
fails to establish Defendants’ “specific intent” to import cocaine
into the United States. Defs.’ Mot. 3. ln this regard, Defendants
claim that the Government’s case is based “primarily on a single
statement by Suarez that . . . [Junior] . . . sent 200 kilos [of
the Palm Oil One shipment] to New York.” lQ; Defendants attack the
credibility of Suarez’s testimony, arguing that it is not
corroborated by any other material evidence or testimony and is, in
fact, contradicted by statements Suarez made in November 2005 and
April 2006 claiming that neither he nor anyone else knew what
Junior had. done with the Paln1 Oil One shipment. ld. at 3-9.
Defendants also argue that, at most, Suarez’s statements
demonstrate that the only actual knowledge the Defendants had was
that the Palm Oil One shipment was moved from Puerto Progreso to
Monterrey, Mexico. lg; at 6-9.
ln making these claims, Defendants largely repeat arguments
presented in their Motion for Judgment of Acquittal. For reasons
similar to those contained in the Court's March 9, 2011 Memorandum
Opinion denying that Motion, Defendants’ arguments fail for several
reasons.
First, Defendants err in claiming that the Government’s case
revolves exclusively around Suarez’s testimony about the Palm Oil
One shipment reaching the United States. Rather, as discussed above
as well as in the Court's March 9, 2011 Memorandum Opinion, the
Government presented evidence to prove a number of other facts
supporting conviction. Mem. Op. 7-8. For example, the Government
offered evidence showing that Junior informed Defendants of his
intention to bring the Palm Oil One shipment, including Borda's
share, north from Puerto Progreso to Monterrey shortly after it was
delivered from Colombia. Further evidence, which was undisputed,
also established that Monterrey has no market for personal
consumption of cocaine, and is less than two hours from the United
States border. There was also evidence demonstrating that Junior’s
delay in paying Borda and Alvaran for the Palm Oil One shipment led
-10_
to a series of discussions in which Junior's difficulties in moving
the cocaine across the border were explained to Defendants.
Second, as clearly reflected in the statute, 21 U.S.C. § 959
requires that Defendants have the knowledge or intent that the
drugs “will be unlawfully imported into the United States”
(emphasis added). Having failed to address this issue in their
Motion for Judgment of Acquittal, Defendants now raise it in the
pending Motion for New Trial.4 However, their arguments do not
address the appropriate mens rea inquiry, namely, whether
Defendants intended or knew that the Palm Oil One shipment wgu1d
enter the United States. §§§ Mem. Op. 9 (“Defendants keep
misstating what the statute requires. They say repeatedly that
there was no evidence that they knew that the cocaine was imported
into the United States. . . . The difference is between proving
that past importation occurred, as opposed to proving knowledge or
intent of future importation into the United States.”)(emphasis in
original)(citation omitted).
Instead, much of Defendants’ challenge focuses on what Suarez
did not know or what he should have known about the actual, final
destination of the Palm Oil One shipment. ee Defs.’ Mot. 5 (“ln a
recorded conversation dated November 22, 2005, that directly
4 In response to the Court's March 9, 2011 Memorandum Opinion,
Defendants’ Reply attempts to recast their claims so as to address
whether evidence demonstrates that Defendants had the knowledge or
intent that the cocaine would be imported into the United States.
Defs.’ Reply 8 n.2.
_11_
contradicts his trial testimony, Suarez is heard explaining to
Montoya that he (Suarez) did not know what Junior had done with the
cocaine from the Palm Oil Deal.”); lQ; at 6 (“Suarez, who had been
Junior’s associate for more than 10 years and had introduced Junior
to Borda would have known in November 2005 whether Junior had
shipped the cocaine to New York.”). Whi1e these claims may raise
doubts as to how much Suarez actually knew about the cocaine’s
shipment to New York, Defendants do not thereby meet their burden
of proof for purposes of their Motion for New Trial, to show that
“the evidence preponderates heavi1y” against a finding that they
had the knowledge or intent that the Palm Oil One shipment would be
imported into the United States. Ro ers, 918 F.2d at 213 (internal
quotations and citation omitted).
Similarly, Defendants’ emphasis on the fact that their only
actual knowledge was of the transfer of the Palm Oil One shipment
to Monterrey also misses the point, §eg Defs.’ Mot. 6 (arguing that
in a July 20, 2005 recorded conversation with Defendants, Suarez
assured them that Junior “had not sent the n@rchandise to the
United States”); Defs.’ Reply 7 (”There is no evidence that Junior
told either defendant that he was taking the cocaine to Monterrey
to import it to the United States or that the defendants would
otherwise know that.”); lQ4 at 9 (arguing that Borda's statements
in a July 22, 2005 recorded conversation do not demonstrate that he
knew Junior was trying to transport the Palm Oil One shipment into
_12_
the United States). However, the Defendants’ admission of their
actual knowledge that the cocaine had been transported to
Monterrey, is not inconsistent with a finding that they also
intended or knew that the shipment would ultimately be imported
into the United States.
In their Motion papers, Defendants essentially argue for a new
trial on the grounds that a new, and different, jury will draw
particular inferences and reach certain conclusions favorable to
Defendants, which the Jury in this trial rejected. However, in
weighing the evidence presented to it in this case, it was well
within the bounds of the Jury's instructions to make the inferences
and reach the conclusions that it did. Consequent1y, the Court
denies the Defendants’ challenge to their conviction. on these
grounds.5
5 A number of Defendants’ challenges to Suarez’s in-court
testimony, as well as to recorded conversations between Suarez and
the Defendants, go to the sufficiency, rather than the weight of
this evidence. Defs.’ Mot. 2-4; Defs.’ Reply 7-8, l1. However, on
a Motion for New Trial, the court does not evaluate the sufficiency
of the Government’s evidence. §ee Tibbs, 457 U.S. at 42-43 (“A
reversal based on the weight of the evidence, moreover, can occur
only after the State both has presented sufficient evidence to
support the conviction and has persuaded the jury to convict.”).
Consequently, these arguments cannot support Defendants’ claim for
a new trial. Similarly, Defendants challenge the Government’s case
on the Chino Load based on the sufficiency of the proffered
evidence. Defs.’ Reply 13. For the same reason, this claim cannot
support a motion for new trial as to that issue.
-13_
B. The Government’s Closing Remarks
Defendants claim that the Government made remarks during its
closing arguments which both misrepresented Suarez’s statements as
to the different fees Junior charged for his transportation
services to Mexico and the United States, and misstated witness
testimony that Borda and Alvaran received money for the Palm Oil
One shipment via a “money exchange house.” Defs.’ Mot. 10-12.
Echoing similar arguments raised in their Motion for Judgment of
Acquittal, Defendants argue that the Government’s misrepresentation
regarding the transportation fees, as well as its use of a metaphor
involving a box of bees at the border, invited speculation on the
part of the Jury that the Defendants knew or intended to import
cocaine into the United States. ld4 at 21-22.6
“The touchstone of a prosecutorial misconduct claim is
prejudice: the court must consider ‘the probable effect the
prosecutor’s [statements] would have on the jury's ability to judge
the evidence fairly.’” United States v. Thomas, 114 F.3d 228, 246
(D.C. Cir. l997) (alteration in original) (quoting United States v.
§Qugg, 470 U.S. 1, 12, 105 S. Ct. 1038 (1985)). See United States
v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999)(holding that the
court must ask “not whether evidence was sufficient to convict
notwithstanding the error, but rather whether the court can say
6 The Defendants raised timely objections to these statements
during trial. Tr. at 90:18, 97:2-3 A.M. Session, Dec. 7, 2010.
-14_
that the error did not affect the jury's verdict; if in grave doubt
the court cannot affirm [] the conviction”) (internal quotations
and citations omitted). 0ur Court of Appeals has made clear that
“[t]he federal courts generally, and this court in particular, have
strictly enforced the obligation of the prosecutor to avoid making
statements of fact to the jury not supported by proper evidence
introduced during trial.” Gaither v. United States, 413 F.2d 106l,
1079 (D.C. Cir. 1969). See United States v. Edelin, 996 F.2d 1238,
1243 (D.C. Cir. 1993).
To determine whether the Government’s purportedly improper
remarks prejudiced Defendants’ substantial rights, the Court
applies a three-part test, weighing “the closeness of the case, the
centrality of the issue affected by the error, and the steps taken
to mitigate the effects of the error.” Watson, 171 F.3d at 700
(internal quotations and citations omitted). See Thomas, 114 F.3d
at 246 (alternately framing the three-part test as “the severity of
the misconduct, the measures adopted to cure the misconduct, and
the certainty of conviction absent the improper remarks”).
In evaluating the components of this three-part test, the
court may consider “the jurors’ common sense in assessing the
effect of a prosecutor’s statement.” United States v. Johnson, 231
F.3d 43, 48 (D.C. Cir. 2000). The court must also recognize that a
prosecutor’s statements during closing argument will rarely justify
a new trial. Watson, 171 F.3d at 699. See id. at 704 (Gar1and, J.,
_15_
dissenting) (“[A]lthough it is error for a prosecutor to
mischaracterize evidence in a summation [,] [i]t is also clear
that an error i11 a prosecutor’s summation will only rarely
warrant reversal of a conviction.”) (alterations in original)
(internal quotations and citations omitted); Edelin, 996 F.2d at
1243 (“[W]e have generally been chary of reversing convictions
solely on the grounds of a Hdsstatement in a closing
argument.”)(internal quotations and citation omitted).
Applying the watson test to both the transportation fees and
money exchange house issues, the Court concludes that, although the
Government did misstate witness testimony regarding Junior's
transportation fees7 and did inaccurately describe the money
exchange house in its closing argument, these errors did. not
“effect . . . the jury's ability to judge the evidence fairly.”
Thomas, 114 F.3d at 246 (internal quotations and citation omitted).
Regarding the “closeness of the case,” it is true that the
Government’s evidence of Defendants’ guilt was not overwhelming.
With respect to the “centrality of the issue affected by the
error,” the transportation fees charged by Junior for shipment of
cocaine to Mexico and the United States were in fact important
7
The Government admits that it did not accurately convey the
testimony regarding the transportation fees, conceding that Suarez
testified that the fees were calculated based upon a percentage of
the load while the Government’s closing argument described the
calculation as based upon a percentage of the price. Gov't Opp'n
26.
_16_
issues, However, perhaps because of its centrality, a great deal of
evidence about the transportation fees was presented at trial,
including witness testimony, charts, other documentary evidence,
and vigorous cross-examination. Consequently, the Jury had a very
substantial opportunity to judge the accuracy of the evidence
offered, about which there was little if any conflict.8 §§§ United
States v. Cabrera, 734 F. Supp. 2d 66, 88 (D.D.C. 2010)(“‘When
taken in context of the entire trial and the lengthy closing
arguments and rebuttal, the objectionable references did not
significantly detract from the proper focus of the
argument.’”)(quoting United States v. Oberle, 136 F.3d 1414, 1422
(10th Cir. 1998)).9
8 The Court observed that the Jury in this case took its role
very seriously, was extremely attentive, and many Jurors took
copious notes.
9 ln his dissent in Watson, Judge Garland noted that
prosecutorial misstatements are mitigated, in part, where the
objectionable statements relate to evidence presented to and heard
by the jury during trial:
Both the Supreme Court and [the D.C. Circuit Court of
Appeals] have repeatedly held such [jury] instructions
sufficient to mitigate prejudice caused by prosecutors’
misstatements in closing arguments. Moreover, it bears
emphasizing that this is not a case in which the
prosecutor asserted knowledge of evidence neither seen
nor heard by the jury, nor subject to cross-examination
by the defense. ln such a case, it might be argued that
an instruction that the jury's recollection controls is
of questionable value since the jury has no recollection
on which to rely. Here, by contrast, the dispute was
solely about evidence the jury did hear, and as long as
the jury followed the court's instructions the
(continued...)
-17_
The identity of the money exchange house, by contrast, was a
minor issue that was not central to the Government’s case or
critical to establishing the mens rea necessary to establish
Defendants’ guilt. Again, the Jury heard all the testimony on this
issue directly and was well-positioned to recognize that the
Government’s description of the money exchange house, as an
“armored car company,” conflated the type of car used to transport
the money from Monterrey (an armored car) with the place where the
money was exchanged (a money exchange house).
Finally, on “the steps taken to mitigate the effects of the
error,” the Court gave the Jury a number of instructions that would
ameliorate the possibly harmful effects of these misstatements.
For instance, the Court instructed the Jury that closing
argument did not constitute evidence to be considered in deciding
Defendants’ guilt. Tr. at 41:1-4 A.M. Session, Dec. 6, 2010 (“The
opening statements and the closing arguments of the lawyers are not
evidence. They are only intended to assist you in understanding and
to persuade you about what the evidence shows.”). The Court also
informed the Jury that “[s]ometimes a lawyer's question suggests
that something is a fact. You may consider the witness’s answer,
but not the lawyer's question. A lawyer's question is not evidence.
9(...continued)
prosecutor’s error would be mitigated,
171 F.3d at 706 (citing Richardson v. March, 481 U.S. 200, 211, 107
S. Ct. 1702 (1987)).
_18_
A witness’s answer is, of course, evidence.” ld; at 41:5-8. Most
significantly, the Court also instructed the Jury that in
considering all the evidence in determining whether the Government
had established Defendants’ guilt beyond a reasonable doubt, it was
“very important” that the Jury “consider and weigh the testimony of
all of the witnesses who have appeared before [the Jury].” 1QL at
44:l6-21. Of particular importance, the Court emphasized to the
Jury that “[i]f any reference by [the Court] or the attorneys to
evidence does not coincide with your recollection of the evidence,
it is your recollection which should control during your
deliberations.” lQL at 38:22-25.
As case law from our Court of Appeals has established, these
jury instructions were sufficient to mitigate any prejudice to
Defendants’ substantial rights caused by the Government’s
misstatements. §ee Watson, 171 F.3d at 706 (holding that prejudice
caused by prosecutorial misconduct during closing argument was
mitigated by lower court's instructions, which directed jury that
lawyers' arguments were not evidence, that witness’ answers
constituted evidence, but lawyers' questions did not, and that
jury's recollection of previous evidence, rather than lawyers'
descriptions of such, was controlling). _e§ also §mi;h, 2011 WL
1437378, at *8 (“We normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently
presented to it, unless there is an overwhelming probability that
_19_
the jury will be unable to follow the court's instructions and a
strong likelihood that the effect of the evidence would be
devastating to the defendant.”)(internal quotations and citation
omitted); Johnson, 231 F.3d at 48 (holding that prosecutorial
misconduct during closing argument did not prejudice defendant, in
part, because judge issued general instructions ordering jury “to
convict based only on the evidence and remind[ing] the jury that
the lawyers' arguments were not evidence”).
lt certainly should not be assumed that the Jurors would
disregard the Court's instructions, the witness’ testimony, and all
the other evidence offered during trial about the economics of
shipping cocaine because of the Government’s misrepresentations
during closing argument, Consequently, although the Government’s
closing statements did misstate witness testimony, application of
the watson criteria demonstrates that these errors did not
prejudice Defendants’ substantial rights, The Court, therefore,
denies Defendants’ claims for a new trial on the basis of
prosecutorial misconduct.w
C. Sixth Amendment Claim
Raising factual allegations similar to those included in their
Motion for Judgment of Acquittal, Defendants claim that the Court
w The Government’s use of the “box of bees” metaphor cannot
have prejudiced Defendants’ substantial rights, as this argument
was barely comprehensible, and certainly neither effective nor
persuasive.
-20_
violated their Sixth Amendment confrontation right by failing to
properly instruct the Jury to strike testimony related to
Government Exhibit 77b,“ which included several clips from an
intercepted conversation between Defendant Borda and others on
August 22, 2006. Defs.’ Mot. 15-20. Defendants also argue that the
Court violated their Sixth Amendment right to confrontation and due
process by excluding two pieces of evidence: (1) a recording and
transcript of an August 2006 conversation between Suarez,
Defendants, and one of Junior’s associates regarding drugs Junior
sent to Europe on Borda's behalf (“Borda Exhibit 42"); and (2) a
March 6, 2006 email from Junior [Dkt. No. 227-2], in which he tells
his contacts at the U.S. Drug Enforcement Agency (DEA) that Borda
is not interested in sending cocaine to the United States. lQ; at
12.”
Under the Sixth Amendment, a defendant’s basic due process
rights involve “an opportunity to be heard in [her] defense
the right to present [her] version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies.”
n Defendants also challenge the Court's decision to strike
Government Exhibit 35 a/b, without “inform[ing] the Jury that the
testimony related to the intercepted conversation was also struck.”
Defs.’ Mot. 20 n.1. For the same reasons, discussed below, that
Defendants’ arguments regarding Government Exhibit 77b fail, this
Court also denies Defendants’ challenge to the Court's handling of
Government Exhibit 35 a/b.
n lt appears that this email never received an Exhibit number
at trial.
_21_
Washinqton v. Texas, 388 U.S. 14, 18-19, 87 S. Ct. 1920 (1967)
(internal quotations and citation omitted). Nonetheless, the
district court has “considerable discretion to place reasonable
limits on a criminal defendant’s presentation of evidence ”
United States v. Whitmore, 359 F.3d 609, 616 (D.C. Cir.
2004)(citation omitted). ln exercising its discretion, the court
should, however, “be cautious [] particularly where a party is
seeking' to impeach_ a witness whose credibility could have an
important influence on the outcome of the trial.” lQ; (internal
quotations and citation omitted).
In reviewing claims for constitutional error, the court
applies a harmless error standard. Chapman v. California, 386 U.S.
18, 23-24, 87 S. Ct. 824 (1967), overruled on other grounds bV
Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993); §mi;h,
2011 WL 1437378, at *5. Under this standard, which differs from the
standard of review for non-constitutional error, once a defendant
has established that a constitutional error has occurred, the
burden shifts to “the Government [] [to] show ‘beyond a reasonable
doubt that the error at issue did not have an effect on the
verdict, not merely whether, absent the error, a reasonable jury
could nevertheless have reached a guilty verdict.’” United States
v. Cunningham, 145 F.3d 1385, 1394 (D.C. Cir. 1998)(quoting
Chapman, 386 U.S. at 24). See Dominquez Benitez, 542 U.S. at 81 n.
11 (citing to Qhapman in noting that “[w]hen the Government has the
_22_
burden of addressing prejudice, as in excusing preserved error as
harmless on direct review of [a] criminal conviction, it is not
enough to negate an effect on the outcome of the case”); Delaware
v. Van Arsdall, 475 U.S. 673, 681, 160 S. Ct. 1431 (1986) (“[A]n
otherwise valid conviction should not be set aside if the reviewing
court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.”)
(citation omitted). With regard to violations of the Sixth
Amendment’s Confrontation Clause, “the focus of the prejudice
inquiry in determining whether the confrontation right has been
violated must be on the particular witness, not on the outcome of
the entire trial.” Van Arsdall, 475 U.S. at 680.
As will be demonstrated below, the Court did not commit
constitutional error in excluding Defendants’ exhibits or in giving
its jury instruction on Government Exhibit 77b.
ln its December 2, 2010 Memorandum 0pinion,(“Dec. 2010 Mem.
Op.”) [Dkt. No. 196], the Court excluded Borda Exhibit 42 and
Government Exhibit 77b, among other exhibits. The Court's Opinion
centered primarily upon discussion of Government Exhibit 77b, which
the Court excluded because “[t]he meeting at which these statements
were made was held on August 22, 2006, a substantial period of time
beyond the time during which the main part of the conspiracy
existed. lt makes no sense that Suarez would be talking to Borda,
_23_
A1varan . . . in August of 2006 when palm oil #1 was successfully
completed in March of 2006 . . . .” Dec. 2010 Mem. Op. 2.
With regard to Government Exhibit 77b, although Defendants
concede that the Court did instruct the Jury to strike the related
testimony, Defs.’ Mot. 19, they argue that the prejudicial nature
of the Exhibit. as well_ as the two-week delay in the Court's
decision to strike the evidence required that the Court tell the
Jury exactly what portions of the testimony should be disregarded.
lQ4 at 15-19. After striking the Exhibit, the Court instructed the
Jury that “Ladies and Gentlemen, l’m sure you all understand. The
actual testimony in court regarding those particular exhibits and
clips, that testimony is struck from the record as well.” Tr. at
7:10-13 P.M. Session, Dec. 6, 2010.
Defendants do not point to any case law establishing a Sixth
Amendment violation where a court, as in this case, excludes the
offending evidence and instructs the jury to strike related
testimony, but stops short of specifying the exact testimony to be
excluded. While Defendants also argue that the Exhibit itself was
prejudicial, Defs.’ Mot. 19-20, this Court's remedy was, in fact,
precisely tailored to cure that prejudice, by both excluding the
offending Exhibit and instructing the Jury to strike all related
testimony. See United States v. Morrison, 449 U.S. 361, 364 101 S.
Ct. 665 (1981)(“Cases involving Sixth Amendment deprivations are
subject to the general rule that remedies should be tailored to the
_24_
injury suffered from the constitutional violation and should not
unnecessarily infringe on competing interests.”). Defendants do not
demonstrate how this Court's “nearly two week” delay in rendering
its instruction would alter this conclusion.
With regard to Borda Exhibit 42, the same logic for excluding
Government Exhibit 77b applies to the Court's exclusion of Borda's
evidence. Both Borda Exhibit 42 and Government Exhibit 77b refer
to different portions of the same conversation that took place in
August 2006, several months afLa; the end of the Palm Oil One
conspiracy. Consequently, as with Government Exhibit 77b, Borda
Exhibit 42 could not reasonably be understood as relevant to the
charged crime.
Defendants cannot convincingly clain1 that their right to
confront Suarez about this conversation was violated,” as the Sixth
Amendment does not afford Defendants the right to cross-examine the
Government’s witness on matters that cannot reasonably be connected
with the conspiracy at issue. §aa Van Arsdall, 475 U.S. at 680(“[A]
criminal defendant states a violation of the Confrontation Clause
by showing' that he was prohibited froH1 engaging in otherwise
appropriate cross-examination . . . .”)(emphasis added); Delaware
v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292 (1985)(“[T]he
Confrontation Clause guarantees an opportunity for effective cross-
w lt should be noted that Suarez spent many hours on the stand
being cross-examined by both defense counsel at great length. The
Jury had ample opportunity to assess his credibility.
_25_
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.”) (emphasis in
original) (citation omitted). Finally, even if exclusion was error,
it is beyond a reasonable doubt that it could not have affected the
Jury's verdict because it did not relate to the Palm Oil One deal.
As to the March 2006 email, Defendants again fail to meet
their burden of showing that the Court's exclusion of this evidence
amounts to constitutional error. ln their Motion, Defendants do not
contest that the email constitutes inadmissible hearsay within
hearsay under Federal Rule of Evidence 801(d)(2), United States v.
Yildiz, 355 F.3d 80, 82 (2d Cir. 2004).
According to Defendants, the email contains representations
by Junior that Borda “is not interested in sending anything to the
United States[,] Nothing. He is interested in Spain, (Valencia) and
Mex[ico].” Defs.’ Mot. 13-14. ln fact, the email, does not contain
any reference to Borda by name, although it does specifically
mention other individuals. Assuming, however, that Defendants are
correct and the email does relate to Borda, Borda conceded in his
trial motion to admit the same email that this discussion related
to “apparently illicit business ventures that are obviously not
part of the charged conspiracy.” Defendant’s Motion to Admit
Evidence and Motion in Limine to Preclude lrrelevant Evidence and
Argument 1 (Dec. 2. 2010) [Dkt. No. 193]. Evidence of Borda's
purported lack of interest in sending other shipments of cocaine to
_26_
the United States, which are “obviously not part of the charged
conspiracy," certainly does not compel the conclusion that he did
not have the knowledge or intent that Junior, rather than he,
Borda, would send cocaine from the Palm Oil One shipment to the
United States. Consequently, there was no error in excluding this
evidence nor was Defendants’ Sixth Amendment right to introduce
exculpatory evidence violated by the exclusion of this inadmissible
email.M The Court, therefore, denies Defendants’ Sixth Amendment
claims.
D. Jury Instructions
Defendants timely objected during trial to this Court's final
instructions to the Jury on the elements of the offense and maaa
;aa requirements of the charged crime, and again raise this
challenge in their Motion for a New Trial, §aa Objections,
Corrections and Additions to the Proposed Jury lnstructions (Dec.
“ The Government also argued that the email would “confuse
issues and mislead the jury,” that it related to a transaction
which was not a part of the charged conspiracy, and that it did not
specify whose statement it was, Government’s Motion in Opposition
to Defendant’s Oral Motion Seeking Ruling on Admissibility of E-
Mail Evidence 2-3 (Dec. 2, 2010) [Dkt No. 194]. Given the length
of this trial, the fact that three different cocaine shipments were
discussed at length, and the difficulty in following translated
transcripts while listening to the Spanish language tape recorded
phone calls and in-person conversations, the Government’s concern
was fully justified. Al1owing in this email -- which was
inadmissible hearsay -- would have opened the door to extensive
testimony about Junior’s cooperation with the DEA, his
disappearance, and speculation about whether he was murdered
because of his cooperation. Finally, the email related to a
transaction which was not a part of the charged conspiracy and did
not even specify whose statement it was,
_27_
5, 2010) [Dkt. No. 200]. Specifically, Defendants raise two
challenges to these instructions: (l) “the final jury instructions
watered down the intent necessary and allowed the jury to speculate
ll
and convict the defendants without sufficient evidence; and (2)
“[t]he final jury instructions were also flawed with respect to the
quantity determination, which the jury was asked to determine after
it found the defendants guilty and with respect to the instructions
that it could find them responsible for a quantity which was simply
foreseeable to them.” Defs.’ Mot. 20-21.
Because Defendants properly raised their challenge to the jury
instructions during trial, the Court reviews this claim for
harmless error. FED.R. CRn4P. 52(a). ln reviewing jury instructions
for legal error, the court considers “not just the challenged
phrases, but the instruction as a whole.” United States v.
Washington, 106 F.3d 983, 996-97 (D.C. Cir. 1997) (internal
quotations and citation omitted). An erroneous jury instruction is
harmless and will not be grounds for a new trial where “in light of
al1_ the circumstances - the language of ‘the instructions, the
arguments of counsel, and the evidence itself - it is highly
improbable that the jury convicted on an improper theory ”
United States v. Rhone, 864 F.2d 832, 835 (D.C. Cir. l989)(internal
quotations and citation omitted).
-28_
ln giving its jury instruction on the mens rea requirements
and elements of the offense for the conspiracy charge, this Court
stated:
[Defendants] are both charged with conspiracy to
distribute five kilograms or more of cocaine intending
and knowing that the cocaine would be unlawfully imported
into the United States.
lntending means to do a thing personally in order to
bring about a desired result, not mistakenly, not
accidentally, not inadvertently.
Specifically, for you to find either Mr. Borda or
Mr. Alvaran-Velez guilty of conspiracy, the government
must prove each of the following elements beyond a
reasonable doubt,
First, that . . . an agreement existed between at
least two people to commit the crime charged, namely, a
conspiracy with the following objectives To distribute
five kilograms or more of cocaine knowing or intending
that the cocaine would. be imported into the United
States.
Second, that the defendant knowingly and willfully
joined and participated in the conspiracy, that it [sic]
consciously, voluntarily, on purpose, not mistakenly,
accidentally or inadvertently.
ln other words, ladies and gentlemen, the second
element requires as to Mr. Borda, that the government
must prove that he knowingly joined the charged
conspiracy, and as to Mr. Alvaran, the government must
prove that he knowingly joined the charged conspiracy.
Third that the defendants intended or knew that such
cocaine was to be unlawfully imported into the United
States.
What the government must prove is that one or both
of the defendants knew that the cocaine would be imported
into the United States, or intended that the cocaine
would be imported into the United States.
_29_
Tr. at 55:2-5,21-23, 56:15-25, 57:1-12,18-21 A.M. Session, Dec. 6,
2010.
Defendants are correct that a conspiracy to commit 21 U.S.C.
§ 959 is a specific intent crime. See United States v. Morqan, 385
F.3d l96, 206 (2d Cir. 2004)(in case involving a conspiracy under
the Controlled Substances lmport and Export Act, 21 U.S.C. § 963,
court held that conspiracy is “specific intent crime”). See also
United States v. Childress, 58 F.3d 693, 707 (D.C. Cir. 1995)
(holding that conspiracy under the Controlled Substances Act
requires showing of specific intent).”
ln Childress, our Court of Appeals held, that a district
court's jury instruction describing a conspiracy charge under the
Controlled Substances Act as a general intent crime was harmless
error because the jury instructions gave “adequate guidance on the
intent required.” laa at 707-709. ln this case, Defendants do not
even allege that the jury instruction given characterized the
conspiracy as a “general intent” crime. Moreover, this Court's jury
instruction clearly told the Jury, as in Childress, that conspiracy
involved a “purposeful state of mind,” with the result that the
§ Several provisions of the Controlled Substances Act and the
Controlled Substances lmport and Export Act are substantially
similar; their respective subsections on “attempt and conspiracy”
are identical. §aa 21 U.S.C. § 846; 21 U.S.C. § 963. And, in fact,
as the Government notes in its brief, 21 U.S.C. § 841(a)(1) of the
Controlled Substances Act is the “domestic equivalent” of 21 U.S.C.
§ 959. Gov't Opp'n 32.
_30_
“jury could not convict under these instructions without finding
what amounts to the specific intent to further the common unlawful
objective.” lap at 708-09 (emphasis in original)(internal
quotations and citation omitted).
lf there is any error in this Court's failure to give a
separate instruction on “specific intent,” it is harmless error,
which did not affect Defendants’ substantial rights. _aa United
States v. Brown, 739 F.2d 1136, 1143 (7th Cir. 1984) (“[T]he
distinction between specific and general intent tends to confuse
juries. Because of this, failure to give a separate instruction on
specific intent is not reversible error so long as the court's
general instructions on intent sufficiently define the appropriate
mental state.”) (citations omitted); United States v. Childress,
746 F. Supp. 1122, 1128-29 (D.D.C. 1990)(same), rev’d on other
grounds by 58 F.3d 693.
As to the jury instruction on quantity determinations,
Defendants’ decidedly brief challenge does not include any
authority demonstrating that the Court's instruction to the Jury on
this matter was improper or erroneous. Defs.’ Mot. 21. ln its
statements to the Jury, the Court directed, in part:
[l]f you [the jury] return a guilty verdict against one
or both of the defendants on [the conspiracy charge], you
must then make a determination as to the quantity of
cocaine for which such defendant or defendants are
responsible
ln making any determination of drug quantities
attributable to a defendant, you are instructed that a
_31_
defendant is responsible for those drugs that he
distributed knowing or intending that such drugs would be
imported into the United States, and those drugs imported
into the United States distributed by other co-
conspirators who knew or intended such drugs to be
imported into the United States, which the defendant
reasonably could have foreseen would have occurred in
furtherance of the conspiracy.
Tr. at 63:20-23, 64:3-11 A.M. Session, Dec. 6, 2010.
Since the Supreme Court's ruling in Apprendi v. New JerseV, it
has been well-established that determinations of drug quantity must
be reserved for the jury, 530 U.S. 466, 490, 120 S. Ct. 2348 (2000)
(holding that it is for the jury to determine beyond a reasonable
doubt “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum”). See United States v. Washington,
558 F.3d 716, 719 (7th Cir. 2009) (citing to Apprendi in holding
that “drug type and quantity are sentencing factors that must be
found by the jury, insofar as they establish the maximum possible
sentence”) (citations omitted).
ln this case, the Court's instruction to the Jury directing
its members to determine the amount of drugs reasonably foreseeable
to Defendants was legally proper. See United States v. Hickman, 626
F.3d 756, 771 (4th Cir. 2010)(upholding judicial instruction asking
the jury to decide “the type and. amount of drugs reasonably
foreseeable to the Defendant that would be involved in the
conspiracy . . . .”) (emphasis added) (internal quotations and
citation omitted).
_32_
Furthermore, the Court's instruction to the Jury that it could
make this determination only if it first found Defendants guilty of
the underlying conspiracy charge is in accord with established
practice among the circuits. See United States v. Washindton, 558
F.3d at 717 (discussing, although not deciding propriety of, jury
instruction on drug quantity in which jury was told to determine
drug amount only if it first found defendant guilty of underlying
conspiracy charge); United States v. WestrV, 524 F.3d 1198, 1217
(11th Cir. 2008) (upholding jury instruction in drug conspiracy
case in which jury was directed to make finding on drug amount only
if it first found any of defendants guilty of conspiracy).
Because the Court, at most, committed harmless error in
instructing the Jury as to the substantive offense and did not err
on the instruction for the drug quantity determination, it is clear
that no “substantial rights” of the Defendants were affected.
Consequently, the Court denies Defendants’ challenge to the jury
instructions in its entirety.
E. Alvaran's Closing Argument
Defendant Alvaran argues that the Court erred in sustaining
the Government’s objection to Alvaran's closing statements, which
attempted to focus on the Government’s lack of evidence that the
Palm Oil One cocaine shipment had ever actually been imported into
the United States. Defs.’ Mot. 22-28. Defendant Alvaran further
contends that the Court's ruling on this issue led the Jury to
-33_
believe that the Court approved prosecutorial theories and
disapproved those foreclosed to Alvaran's Counsel. laa at 28-30.
The court has broad discretion in controlling the scope of
closing arguments, United States v. DeLoach, 504 F.2d 185, 189
(D.C. Cir. 1974), although it should, of course, permit the
prosecution and defense “a full opportunity to advance their
competing interpretations [of the evidence] . .. .” lay (citing to
United States v. SawVer, 443 F.2d 712, 713 (D.C. Cir. 1971)).
ln bringing his challenge, Defendant Alvaran argues that the
objectionable statements, which dealt with Junior’s work as a DEA
informant, would have established that the Government should have
been able to, but did not, present detailed information on the Palm
Oil One shipment to New York. Defs.’ Mot. 26 (quoting trial
transcript in which Defendants defend this line of argument by
claiming that they can “show that the government didn’t
investigate. The logical inference is, if Junior is cooperating in
August of 2005 . . . he will give information that will lead the
government to . . . the cocaine . . . .“).
Defendant Alvaran claims that the Court excluded the
statements as disallowed missing-witness arguments. lay at 27. That
is not quite correct. Although, in sustaining the Government’s
objection, the Court did mention Defendants’ previous request for
_34_
a missing-witness instruction,M Tr. at 23:21-23 A.M. Session, Dec.
7, 2010, the Court first made it very clear that its reason for
precluding the argument was because it was purely speculative in
nature and not based on any evidence presented at trial, iga at
20:8-9, 2228-9, 23:6."
Moreover, precluding Alvaran's closing argument on missing-
witness grounds would not have prejudiced Alvaran’s substantial
rights. First, as noted by the Government, Defendant was permitted
to present, at great length, other arguments in his closing that
there was insufficient evidence establishing that the cocaine had
reached the United States. lay at 56:16-25, 57:1-4. Second,
Defendant Alvaran concedes that his co-Defendant Borda was
permitted by the Court “to make a nearly identical argument without
objection or without any instruction to the jury by the Court
.” Defs.’ Mot. 29. Throughout this case, Defendants have jointly
16 The Court's reference was in error since Defendants are
correct they had never requested such an instruction.
" Even if the Court had excluded Defendant Alvaran’s closing
argument on missing-witness grounds, Alvaran’s substantial rights
would not have been prejudiced by the exclusion. ln Lawson, our
Court of .Appeals held that a lower court's failure to permit
defendant’s argument on missing-witness grounds was error as
defendant was “simply calling into question the sufficiency of the
government's evidence . . . .” 494 F.3d 1046 at 1053. However, in
determining whether the defendant was thereby entitled to a new
trial, the court held that it must disregard “‘[a]ny error, defect,
irregularity or variance which does not affect substantial
rights. . . .’” laa (alteration in original)(citing to FED.ER CRIM.
P. 52(a)).
_35_
presented their defense and Alvaran has not argued that Borda's
interest in bringing this particular challenge was in any way
different from his own.” Cf. United States v. Bradshaw, 719 F.2d
907, 915 (7th Cir. 1983) (noting that “[criminal] co-defendants
may, in fact, benefit from the presentation of a united defense
against a common attack.”)(citing Glasser v. United States, 315
U.S. 60, 92, 62 S. Ct. 457 (1942) (Frankfurter, J., concurrinQ)).
ln light of the forgoing, any error this Court may have
committed in limiting Defendant Alvaran's closing argument did not
affect his “substantial rights,” and was mitigated by Defendant
Alvaran’s other closing statements on the insufficiency of evidence
regarding the Palm Oil One shipment to New York as well as
arguments included in Defendant Borda's closing remarks. Defendant
Alvaran’s claims on this issue are, therefore, denied.
IV . CONCLUSION
While the Government’s evidence was not overwhelming, this
Court cannot conclude that “a serious miscarriage of justice” has
occurred. Tibbs, 457 U.S. at 38 n.11.
w Defendant Alvaran’s failure to challenge Defendants’
“identity” of interest is particularly noteworthy given the
Government’s express claim in its Opposition Brief that Defendants
had “nearly identical” interests, such that any error in
foreclosing Defendant Alvaran's closing argument “did not have a
substantial and injurious effect or influence in determining the
verdict,” Gov't Opp'n 39-40.
-36_
For the reasons set forth above, Defendants’ Motion for New
Trial under Federal Rule of Criminal Procedure 33 is denied in its
entirety. An 0rder will accompany this Memorandum Opinion.
n l
67 ~ /L_
Aprii 27, 2011 GiaayS K@SSiBr
United States District Judge
Copies to: Attorneys of Record via ECF
_37_