United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 6, 2014 OPINION AND ORDER AND DENYING DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL (Doc. 203; Docs. 180 & 194)
CHRISTINA REISS, Chief District Judge.
Defendant Frank Caraballo requests that the court reconsider its March 6, 2014 Opinion and Order denying his previous motions for judgment of acquittal in light of the Supreme Court's recent decision in Rosemond v. United States, 134 S.Ct. 1240 (2014). (Doc. 203.) Defendant contends Rosemond is an intervening change in the law on aiding and abetting and that in light of the jury instructions given during his trial, he could have been convicted under "an inappropriate standard" if the jury determined that he aided and abetted Melissa Barratt's death. Id. at 4. In his motion, Defendant cites Rosemond as grounds for acquittal on his 18 U.S.C. § 924(j) conviction.
Defendant further seeks the court's "clarification" in light of what Defendant characterizes as a "possible error" if the court "determined" that his previous motions for judgment of acquittal did not challenge the sufficiency of the evidence to sustain his conviction under § 924(j) for causing Ms. Barratt's death. Id. at 1-2.
The government objects to Defendant's motion because it is untimely and because Defendant cannot seek a judgment of acquittal based on alleged errors in the jury instructions under Fed. R. Crim. P. 29(c). The government further contends Defendant's challenges to the jury instructions were not preserved. If the court decides to reconsider its jury instructions, the government urges the court to find Rosemond inapplicable because Rosemond addressed an aiding and abetting challenge to an 18 U.S.C. § 924(c) charge, which is not at issue here, and because Rosemond actually lightened the prosecution's burden in the Second Circuit to prove an individual had the intent to aid and abet the commission of a § 924(c) offense. The government argues that the court did not err in failing to address Defendant's alleged prior challenge to the sufficiency of the evidence supporting his § 924(j) conviction because no such challenge was raised.
The government is represented by Assistant United States Attorney Paul J. Van de Graaf and Assistant United States Attorney Joseph R. Perella. Defendant is represented by Mark A. Kaplan, Esq. and Natasha Sen, Esq.
I. Factual and Procedural Background.
A. Second Superseding Indictment.
Defendant was charged in a four count Second Superseding Indictment (the "Indictment"). Count One alleged Defendant participated in a conspiracy to distribute mixtures or substances containing a detectable amount of cocaine base, cocaine powder, and heroin, as part of a conspiracy involving 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), 846.
Count Two alleged Defendant used or carried a firearm during or in relation to, or possessed a firearm in furtherance of, the drug trafficking crime charged in Count One, with the allegations that Defendant discharged the firearm and caused the death of Melissa Barratt by murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1).
Count Three alleged Defendant used or carried a firearm during or in relation to, or possessed a firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
Count Four alleged Defendant was a felon in possession of a firearm, with an allegation that Defendant had been convicted of four prior drug trafficking felonies, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1). The court ordered the bifurcation of the trial of Count Four from the trial of Counts One through Three. See United States v. Caraballo, 2013 WL 4647787, at *5-6 (D. Vt. Aug. 29, 2013).
B. The Trial.
The trial on Counts One through Three commenced on September 16, 2013. After eleven days of trial, the jury found Defendant guilty of conspiracy to distribute cocaine base, cocaine powder, and heroin, involving 28 grams or more but less than 280 grams of cocaine base (Count One); guilty of using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, the drug trafficking crime charged in Count One and of causing the death of Melissa Barratt by murder (Count Two); and guilty of using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a drug trafficking crime (Count Three). The jury found Defendant not guilty of discharging the firearm that killed Ms. Barratt, as alleged in Count Two. After the jury rendered its verdict, Defendant stipulated to a prior felony conviction, waived his right to a jury trial, and pled guilty to being a felon in possession of a firearm (Count Four).
C. Post-Trial Motions and the Court's Opinion and Order.
After the jury's verdict, Defendant timely moved for a judgment of acquittal on Counts Two and Three of the jury's verdict. (Docs. 180, 194.) With regard to his conviction on Count Two, Defendant argued that the jury's verdict that he caused Ms. Barratt's death was inconsistent with the jury's verdict, finding him not guilty of discharging the firearm that killed her, particularly because the government's theory at trial was that Defendant, himself, discharged the firearm. Defendant further argued that the evidence was insufficient for the jury to find that Defendant murdered Ms. Barratt in the course of violating § 924(c) and in the course of the underlying conspiracy. Defendant also sought acquittal on his convictions on Counts Two and Three for possession of a firearm in furtherance of a drug trafficking crime. He argued that the evidence presented during his trial - that he traded drugs for at least two different firearms - was insufficient as a matter of law to support his convictions under § 924(c)(1)(A).
On March 6, 2014, the court denied Defendant's motions for judgment of acquittal. (Doc. 202.) On March 5, 2014, the Supreme Court decided Rosemond. Neither party addressed Rosemond in briefing Defendant's original post-trial motions.
II. Conclusions of Law and Analysis.
A. Whether Defendant's Motion ...