The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER DENYING DEFENDANT' MARIA DE LOS ANGELES VICENTE'S MOTION FOR JUDGMENT OF ACQUITTAL UNDER RULE 29 AND HER MOTION FOR NEW TRIAL UNDER RULE 33
In this multi-defendant prosecution, defendants were charged collectively with conspiracy to (a) import aliens for immoral purposes (i.e., prostitution) and (b) commit sex trafficking offenses in violation of 18 U.S.C. § 371. They were also charged individually with substantive counts of (1) sex trafficking of children or by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a)(1); (2) transportation of minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a); (3) importation of aliens for immoral purposes in violation of 8 U.S.C. § 1328; (4) harboring certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i); and (5) transporting certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i).*fn1
A jury trial commenced on January 6, 2009 and concluded on February 3, 2009. On February 11, 2009, the jury returned guilty verdicts on twenty-one of the charged counts. The jury was deadlocked as to the remaining nineteen counts.
Pursuant to a joint stipulation,*fn2 defendant Maria de los Angeles Vicente filed a written brief on her pre-verdict Rule 29 motion; she also filed a new post-verdict motion for a new trial.*fn3 She seeks judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, a new trial under Rule 33. The government opposed Vicente's motion on March 11, 2009.*fn4
A. Legal Standard for Judgment of Acquittal Pursuant to Rule 29
Under Rule 29 of the Federal Rules of Criminal Procedure, the court must order the entry of a judgment of acquittal "if the evidence is insufficient to sustain a conviction." FED.R.CRIM.PROC. 29(a); United States v. Tisor, 96 F.3d 370, 379, n. 6 (9th Cir. 1996); United States v. Affinito, 873 F.2d 1261, 1264 (9th Cir. 1989). Motions for judgment of acquittal made after the return of a guilty verdict must be made within seven days or "within any other time the court sets during the 7-day period." FED.R.CRIM.PROC. 29(a); United States v. Navarro Viayra, 365 F.3d 790, 792 (9th Cir. 2004). Here, the court extended the seven day period immediately following the jury's return of a verdict, and defendant filed within the extended time set by the court.*fn5
Entry of a judgment of acquittal is proper only if the court concludes, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in the government's favor, that no reasonable juror could find the defendant guilty of the crime charged beyond a reasonable doubt. United States v. Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2002) ("'. . . this court must review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" quoting United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000)); United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) ("[A] district court can enter a judgment of acquittal on the grounds of insufficient evidence only if, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, it concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt"); United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998) ("A motion for a judgment of acquittal challenges the sufficiency of the evidence to convict. . . . We review the denial of this motion de novo. In doing so, we consider the evidence, all reasonable inferences drawn from it and all credibility determinations in the light most favorable to the Government, and affirm if a reasonable jury could find the offense's essential elements beyond a reasonable doubt"); United States v. Cunningham, 108 F.3d 120, 123 (7th Cir. 1997) ("'We review the evidence and all reasonable inferences in the light most favorable to the government, and will reverse a conviction only if no rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt,'" quoting United States v. Sax, 39 F.3d 1380, 1385 (7th Cir. 1994)).
B. Whether Defendant's Motion for Acquittal Must Be Granted
Defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that she was guilty of importation and harboring of aliens for purposes of prostitution, as charged in Count 27 of the second superseding indictment.*fn6
Count 27 charged defendant with violating 8 U.S.C. § 1328 by importing alien victim Kathy into the United States for purposes of prostitution. Section 1328 provides in pertinent part:
"The importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation, shall be fined under Title 18, or imprisoned not more than 10 years, or both." 8 U.S.C. § 1328.
At trial, the jury was instructed that, before a defendant could be found guilty of violating § 1328, the government had to prove each of the following elements beyond a reasonable doubt: (1) a person who was an alien was imported into the United States for purposes of prostitution; (2) the defendant knew that the person was an alien; and (3) the defendant either (a) knowingly imported (directly or indirectly) the alien into the United States for the purpose of prostitution, or (b) knowingly kept, maintained, controlled, ...