United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
This matter comes before the Court on the post-trial motions of defendant Anthony Jefferson for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29, or in the alternative for a new trial, pursuant to Fed. R. Crim. P. 33. (Dkt no. 70) For the reasons expressed below, the motions will be denied.
I. Procedural Background
On February 22, 2013, defendant Anthony Jefferson was charged in a two-count Indictment, along with a codefendant, Sharod Culp. That original indictment charged Jefferson and Culp with carjacking and with possessing and brandishing a firearm in furtherance of the carjacking offense, and aiding and abetting the same. (Dkt no. 11) On July 10, 2013, Culp pled guilty to both counts. (Dkt no. 22)
On November 22, 2013, Jefferson was charged in a Superseding Indictment containing three counts:
Count 1: Conspiracy with "S.C." (Sharod Culp) to commit carjacking and to possess and carry a firearm in relation to that carjacking offense, in violation of 18 U.S.C. § 371;
Count 2: Carjacking, and aiding and abetting the same, in violation of 18 U.S.C. §§ 2119(1) and 2;
Count 3: knowingly using and carrying a firearm, and possessing a firearm, in furtherance of the carjacking charged in Count 2, which firearm was brandished, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2.
(Dkt no. 42)
Counsel for Jefferson made two sets of pretrial motions, focused on the particular facts of the case. Among them were a motion for a Wade suppression hearing regarding pretrial identifications; for disclosure of certain materials, including local police records and the presentence report of Culp; for a spoliation charge regarding a 911 tape that had allegedly been destroyed in violation of state law; for the home address of an officer, now on disability, who had participated in the case; and for other relief. After oral argument I decided some of the motions, found others to be moot in light of subsequent disclosures or concessions by the government, and reserved decision on still others until trial. (Dkt nos. 42, 53, 54)
Trial began on February 25, 2014, and lasted for five days. The government introduced the testimony of six witnesses, as well as physical and documentary evidence. After the government rested, the defense rested without putting on a case. At defense counsel's request, and out of the presence of the jury, I briefly informed the defendant on the record that he had the right to testify and ascertained that he personally had chosen to waive that right.
Both sides submitted written proposed jury charges, which I discussed with counsel at an off-the-record charge conference on the morning of March 3, 2014. The government's proposed charges as to conspiracy, the 924(e) firearms offense, and aiding and abetting, were closely adapted from the Third Circuit model charges. The government's proposed carjacking instruction was taken from other authoritative sources (there is no model Third Circuit carjacking charge). Defense counsel proposed additional charges that were keyed to the theory of the defense. (Dkt no. 60) One, regarding the credibility of a witness who is an addict or substance abuser, I rejected, because it was not supported by the evidence. The other three, titled "Inference of Participation From Mere Presence, " "Impermissible To Infer Participation From Association, " and "Inference Regarding Association With Conspirators, " were incorporated into my final charge. Counsel were given the opportunity to state on the record any objections to the final version of the charge.
Late on March 3, 2014, the jury returned a verdict of guilty on all three counts of the indictment. The verdict sheet included a special interrogatory: "Did the defendant, Anthony Jefferson, brandish the firearm in furtherance of the crime charged in Count Two?" The jury answered "Yes." (Dkt no. 68)
On March 5, 2014, two days after the jury returned its verdict, the United States Supreme Court rendered its decision in Rosemond v. United States, 572 U.S. ___, 134 S.Ct. 1240 (2014). The following day, I sua sponte placed the following notice on the docket:
NOTICE to Parties as to ANTHONY JEFFERSON: Any post-trial motions relating to the 924(c) firearms component of the case should include discussion of the effect, if any, of the U.S. Supreme Court decision in United States v. Rosemond, No. 12-895 (The decision is available at http: / / www. supremecourt.gov/opinions/slipopinions.aspx?Term= 13.). At trial, neither the parties nor the Court had the benefit of the decision, which was handed down yesterday, March 5, 2013. (nic, ) (Entered: 03/06/2014)
(Dkt No 69)
On March 9, 2014, counsel for Jefferson filed the current motions for a judgment of acquittal or a new trial. (Dkt no. 70) These understandably focused on Rosemond, but also argued more generally that the verdict was against the weight of the evidence or that no reasonable jury could have found beyond a reasonable doubt that Jefferson was guilty of armed carjacking. The government submitted a response on March 24, 2014. (Dkt no. 71) On April 10, 2014, I heard oral argument and reserved decision on the motions. (See Dkt no. 74)
II. The Evidence at Trial
The government's witnesses were John Cinardo (the owner of the car and one of two victims of the carjacking); Leandra Semedo (the second victim); Jacquenetta Moton (Newark Police Identification Officer); Sonia Carvalho-Cunha (Newark Police Detective); Gary Robinson (Newark Police Identification Officer); and Shalonda Thomas (the mother of codefendant Sharod Culp).
The evidence would support a jury finding as to the following facts:
On March 11, 2012, at approximately 2:45 a.m., John Cinardo and his best friend, Leandra Semedo, were on Patterson Street, between Wall Street and Niagara Street, in the Ironbound section of Newark, New Jersey. Patterson Street, where Cinardo lives, is a one-way street that runs in an easterly direction, toward Niagara. Cinardo's car, a blue 2009 Hyundai Sonata, was parked on the right side of the street, that is, with the passenger-side door nearest the curb.
Cinardo and Semedo had just left a neighborhood bar on Patterson Street. Cinardo had consumed three drinks over the course of four or five hours. He testified that he was not impaired. Semedo testified that she had consumed four or five drinks and was "buzzed"-not sober, but not intoxicated, either. They briefly stopped at Cinardo's apartment, then returned to the street and got into Cinardo's car so that Cinardo could drive Semedo home.
Cinardo turned on the ignition. Both the inside cabin light and the headlights of the car were on. A streetlight, located on the opposite side of the street and behind the car, was lit. Cinardo and Semedo then saw two men approaching from the direction of Niagara Street (i.e., from the direction the car was facing). One was tall; the other was about 5'6", had scruffy facial hair, a short haircut that looked like a grown-out "fade, " a dark hooded sweatshirt, and jeans.
There is no dispute that the shorter man was Anthony Jefferson, and the taller was Sharod Culp. In defense counsel's opening and closing statements, he acknowledged that Jefferson was on the scene, and that the other man was Culp. At oral argument of these motions, counsel acknowledged that this was "not an identification case." At the time, however, Cinardo and Semedo did not know the men's names; for clarity, I here substitute the name "Jefferson" for the shorter man and "Culp" for the tall man.
After turning the corner from Niagara, Culp and Jefferson walked down the middle of Patterson Street. As they walked toward the front of Cinardo's car, they first talked to each other and then separated. (Semedo described them as making a "V".) Culp walked to the driver's side of the car, where Cinardo was sitting. Jefferson simultaneously walked to the passenger side, where Semedo was sitting. Culp pointed a gun at Cinardo and told him to get out of the car and leave the keys. Cinardo obeyed. Jefferson opened the passenger-side door, and Semedo got out of the car.
Culp took Cinardo and Semedo at gunpoint to a narrow alley between two houses, on the passenger side of the car. Jefferson remained with the car; he never got closer to the alley than the vicinity of the entrance, and he did not enter the alley. As Cinardo recalled it, Jefferson was on the passenger side of the car as Culp took them to the alley, but then walked around to the driver's side.
In the alley, Culp held Cinardo and Semedo at gunpoint. After patting them down, he took Cinardo's phone and Semedo's handbag. Culp asked Jefferson if the keys were in the car, and Jefferson answered that they were. Standing in the open driver's side door of the car, Jefferson told Culp that he should shoot the "faggot, " referring to Cinardo. Culp, still holding Cinardo and Semedo at gunpoint, told them to turn around and face the wall of the alley. Culp then walked back to the car. When Cinardo heard the car door slam, he turned and looked. Jefferson, now driving, backed up the car, then pulled out of the parking space and drove off, with Culp in the passenger seat.
At no point in these events did Jefferson set off on foot, or otherwise indicate any intent to leave the scene or abandon the carjacking plan. When Culp pulled the gun, Jefferson did not object or look surprised.
Semedo ran back to the bar and called 911. Police officers arrived. Later that morning, Cinardo gave a tape recorded statement, which, at the behest of the defense, was played for the jury.
About three weeks later, Cinardo's car was found abandoned on Court Street in Newark. On April 4, 2012, it was processed for fingerprints. Two fingerprints matched those of Culp. One print, taken from the middle of the rear view mirror, matched the right thumb of Jefferson.
On April 20, 2012, at the police station, Cinardo and Semedo separately picked out a photograph of Culp as being the taller of the two men involved in the carjacking. On May 4, 2012, Cinardo and Semedo were again called to the police station to perform a photo identification. From the six photographs he was shown, Cinardo picked out a photo of Jefferson as the shorter of the ...