able to "send" contraband to Rex without the aid of, and an agreement with, a third person. See McGlory, 968 F.2d at 321 (existence of conspiracy can be inferred from circumstances "from which it appears . . . that the activities of the participants . . . could not have been carried on except as the result of a preconceived scheme or common understanding").
Also during the First 7 August Recording, Wright made reference to the role of a specific third party in the upcoming drug transaction, stating: "I can talk to Cheryl and I'll pay her." First 7 August Recording at 6. This reference to a third party was sufficient to support a conspiracy conviction "on the ground that [Wright] knew he was part of a larger drug operation." Padilla, 982 F.2d at 114.
Wright made similar references to third parties during the Second 7 August Recording. Describing his plan to go to the Atlantic City area for the 8 August Sale, Wright stated: "I'm tryin' to see if I can round up . . . somebody to go . . . . If I can round up somebody to come there, I'll come, and, you know, move, with you know." Second 7 August Recording at 6-7. This reference to a third party, and to that party's role in the transaction, likewise demonstrated Wright's knowing and wilful involvement in an agreement to distribute contraband. See Padilla, 982 F.2d at 114.
Wright's statements during the 8 August Sale, as recounted by Agent Monroe's testimony and in the 8 August Recording, also support the jury's finding as to the existence of a conspiracy. At the 8 August Sale, Wright indicated he was "planning" to set up a network for the distribution of heroin between New York and Atlantic City. 8 August Recording at 5-6; Tr. at 128. Wright stated that in future deals, "he would send another individual down with the drugs and he would come down a day or so later and pick up the money." Tr. at 128; see 8 August Recording at 5-6. Wright's statements indicate the involvement of other persons in a plan orchestrated by Wright for the sole and express purpose of distributing heroin. These statements therefore overwhelmingly support the inference that Wright was, during the 8 August Sale, wilfully involved in a conspiracy to distribute heroin.
The evidence offered by the Government provided a sufficient basis on which the jury could rationally have concluded, beyond a reasonable doubt, that Wright had knowingly entered into an agreement to possess and distribute heroin, with the intention of carrying out this illicit agreement. Such evidence therefore was sufficient to sustain Wright's conspiracy conviction under section 846. Salmon, 944 F.2d at 1113. Accordingly, Wright's motion for acquittal is denied as to Count I.
In support of acquittal, Wright contends his confession during the 8 August Interview was uncorroborated and therefore insufficient to sustain a conviction. See Wright Response at 5; Wright Brief at 3. It is recognized that "in order to convict a defendant of a crime based upon an extrajudicial confession or admission, the defendant's statement must be corroborated by some evidence of the corpus delicti."
Government of the Virgin Islands v. Harris, 938 F.2d 401, 409 (3d Cir. 1991); see Opper v. United States, 348 U.S. 84, 90-91, 99 L. Ed. 101, 75 S. Ct. 158 (1954).
However, "the corroboration need not be sufficient, independent of the statements of the accused, to establish the corpus delicti, and what the Government must do, in order to furnish sufficient corroboration, is to introduce substantial evidence which would tend to establish the trustworthiness of the statement." United States v. Wilson, 436 F.2d 122, 124 (3d Cir.), cert. denied, 402 U.S. 912, 28 L. Ed. 2d 654, 91 S. Ct. 1393 (1971); see Opper, 348 U.S. at 93 ("It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth."); Harris, 938 F.2d at 410 (quoting Wilson, 436 F.2d at 124); United States v. Felder, 572 F. Supp. 17, 21 (E.D.Pa) ("In order to corroborate a confession or admission, it is unnecessary for the prosecutor to introduce substantial independent evidence of each element of the offense charged."), aff'd without op., 722 F.2d 735 (3d Cir. 1983).
Evidence sufficient to corroborate a substantial part of the confession will establish the trustworthiness of the entire confession. See Wilson, 436 F.2d at 124 ("Since two parts of [the defendant's] confession were corroborated by other evidence, this established the trustworthiness of the entire admission and authorized the prosecutor to prove the element of interstate transportation solely by [the defendant's] admission . . . ."); see also Harris, 938 F.2d at 410 (quoting same language from Wilson). Moreover, "[a] confession may be corroborated in a number of ways. A degree of corroboration may be found in the detailed nature of the confession itself, or in the recital of facts that would be unknown to anyone other than the criminal." Felder, 572 F. Supp. at 22; see Harris, 938 F.2d at 410 (quoting Felder, 572 F. Supp. at 22, with approval).
In the instant case, as demonstrated above, each of the offense elements supported by Wright's statements during the 8 August Interview was supported as well by independent evidence, such as the testimony of Agent Monroe, the testimony of Agent Zyckowski, and the tape recorded conversations; most of the individual statements made by Wright during that confession were directly corroborated by this independent evidence. Indeed, such additional evidence would by itself have been sufficient to establish the offense elements beyond a reasonable doubt. This evidence, along with the detailed nature of Wright's confession, sufficiently establish the trustworthiness of the confession to justify the jury's use of the confession in reaching its verdict. See Harris, 938 F.2d at 418; Felder, 572 F. Supp. at 22. Wright's confession, along with the independent testimonial and tape recorded evidence, provided overwhelming support for the jury's conviction of Wright on both Count I and Count II.
B. Motion for New Trial
In the alternative, Wright has moved for a new trial pursuant to Fed.R.Crim.P. 33. Rule 33 provides: "The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Fed.R.Crim.P. 33.
"Whether to grant a Rule 33 motion lies within the sound discretion of the district court." United States v. Keyser, F. Supp. , No. 91-682-01, 1994 U.S. Dist. LEXIS 319, 1994 WL 12117 at *4 (E.D.Pa. 14 Jan. 1994); see United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976); United States v. Gonzalez, F. Supp. , No. 92-517-01, 1993 U.S. Dist. LEXIS 12723, 1993 WL 364711 at *9 (E.D.Pa. 13 Sept. 1993). The motion can be granted on either of two grounds: "First, the court may grant a new trial if, after weighing the evidence, it determines there has been a substantial miscarriage of justice." Government of the Virgin Islands v. Commissiong, 706 F. Supp. 1172, 1184 (D.V.I. 1989); see Keyser, 1994 U.S. Dist. LEXIS 319, 1994 WL 12117 at *4; United States v. Fleming, 818 F. Supp. 845, 846 (E.D.Pa.), aff'd without op., 9 F.3d 1542 (3d Cir. 1993); United States v. Yun, 718 F. Supp. 366, 368 (D.N.J. 1989). "Second, the court must grant a new trial if error had a substantial impact on the verdict." Commissiong, 706 F. Supp. at 1184; see Keyser, 1994 U.S. Dist. LEXIS 319, 1994 WL at 4; Villard, 700 F. Supp. at 815.
"A motion for a new trial is not favored and is viewed with great caution." United States v. Miller, 987 F.2d 1462, 1466 (10th Cir. 1993); see United States v. Goodwin, 770 F.2d 631, 639 (7th Cir. 1985), cert. denied, 474 U.S. 1084, 88 L. Ed. 2d 897, 106 S. Ct. 858 (1986); United States v. Clemons, 658 F. Supp. 1116, 1119 (W.D.Pa. 1987) ("The power to grant a new trial should be exercised sparingly."), aff'd, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S. 835, 102 L. Ed. 2d 73, 109 S. Ct. 97 (1988). Moreover, in the absence of plain error, "[a] defendant's failure to object to an alleged error [during trial] generally precludes him from asserting the claimed error in a motion for a new trial." United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988); see United States v. Flake, 746 F.2d 535, 543 (9th Cir. 1984) ("The failure to object to an instruction before the trial court is a bar to any challenge before this court in the absence of plain error."), cert. denied, 469 U.S. 1223 (1985); United States v. Bevans, 728 F. Supp. 340, 346 (E.D.Pa.) (incompetency of witness could not be raised for first time in motion for new trial), aff'd, 914 F.2d 244 (3d Cir. 1990); United States v. Lowell, 490 F. Supp. 897, 906 (D.N.J. 1980) ("Alleged instances of prosecutorial misconduct must be the subject of an objection at trial in order to be raised in a motion for a new trial."), aff'd, 649 F.2d 950 (3d Cir. 1981).
In moving for a new trial, Wright has engaged in a virtual fishing expedition. In an apparent effort to turn attention away from the overwhelming evidence of his guilt adduced at trial, Wright requests a new trial based on errors he attributes to every party to this litigation other than himself, namely the Government, the court and even his own trial counsel. He has alleged numerous instances of prosecutorial misconduct, judicial error and ineffective assistance of counsel, many of which were not raised at trial, and most of which are patently frivolous.
Only the least frivolous of these will be addressed.
Wright does not appear to request a new trial based on the insufficiency of the evidence. However, to the extent he does, his request fails. "Rule 33 motions based on the weight of the evidence are not favored, and should be granted only in exceptional circumstances." Gonzalez, 1993 U.S. Dist. LEXIS 12723, 1993 WL 364711 at *9; see Government of the Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987). "In the Third Circuit, a court is not permitted to sit as a thirteenth juror and set aside the verdict simply because it feels some other result would be more reasonable." Gonzalez, 1993 U.S. Dist. LEXIS 12723, 1993 WL 364711 at 9; see Derricks, 810 F.2d at 55. Rather, "the evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." Gonzalez, 1993 U.S. Dist. LEXIS 12723, 1993 WL 364711 at *9.
As discussed, the evidence against Wright overwhelmingly supported his conviction on both Count I and Count II. Based on the weight of the evidence, Wright's conviction did not present a miscarriage of justice; a new trial is not warranted by the weight of the evidence. See Derricks, 810 F.2d at 55.
In support of his motion for a new trial, Wright first alleges several instances of prosecutorial misconduct. Specifically, Wright points to several statements made by the Government during its closing argument. "Improprieties in a prosecutor's remarks warrant a new trial only if they are so gross that there is a probability of prejudice to the defendant and such prejudice was not neutralized by the court." United States v. Gaines, 726 F. Supp. 1457, 1469 (E.D.Pa. 1989), aff'd, 902 F.2d 1562 (3d Cir.), cert. denied, 498 U.S. 844, 112 L. Ed. 2d 96, 111 S. Ct. 128 (1990); see United States v. Gonzalez, 833 F.2d 1464, 1466 (11th Cir. 1987); Flake, 746 F.2d at 542. "Moreover, any harm from prosecutorial misconduct must affect a substantial right and the prejudice must be balanced against the evidence of guilt." Gaines, 726 F. Supp. at 1469; see Gonzalez, 833 F.2d at 1467 ("Given the overwhelming evidence against [the defendant], her substantial rights were not prejudiced by the . . . remark of the prosecutor."). As the Supreme Court has stated: "It is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974)).
With respect to the Government's closing argument in the instant case, Wright first contends it was misconduct to argue to the jury that if it found that Wright was a "facilitator," of the crime charged, then it must also find he was a conspirator in the crime charged.
Wright Response at 8. No objection was made to the AUSA's comment in this regard at trial; the issue, therefore, may not be raised for the first time in the instant motion in the absence of plain error. See Lowell, 490 F. Supp. at 906.
It was not plain error to permit the comments of the AUSA regarding the definition of the term "facilitator." Other courts have, in fact, used the term "facilitator" in describing the requirements of a conspiracy conviction. For example, the Tenth Circuit has stated:
To reasonably infer a [conspiratorial] agreement the defendant's conduct must be interdependent with the conduct of other conspirators. Interdependence requires more than casual transactions or mere associations; the defendant's activities must facilitate the endeavors of other conspirators or the venture as a whole.