U.S. v. AKEFE

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case/us-v-sasso#p35059 F.3d 341, 350 (2d Cir. 1995). A court must exercise its authority to grant a new trial where there is a "real concern that an innocent person may have been convicted." United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).

A. Mr. Alade

Mr. Alade moves for a new trial based on the allegedly erroneous introduction of evidence related to Alade's 2008 trial, the alleged spoliation of evidence and perjured testimony of Detective Berberich related to the Missing Call, the Court's rulings on a number of hearsay objections and the portion of the jury charge relating to specific intent. Each argument raised by Alade is addressed in turn below.

(1) Evidence Admitted from Mr. Alade's 2008 Trial

The Government moved in limine to admit the fact that Alade was arrested and went to trial in 2008 (the "2008 Trial") on charges stemming from Alade's presence at an apartment in Detroit when a package containing approximately one kilogram of heroin was delivered to that apartment by express mail and to admit testimony about the facts giving rise to the arrest and evidence presented at the trial. Because the events underlying the 2008 Trial involved a large shipment of heroin and evidence presented at trial mentioned the names "A. Smith," "Billy Akin Smith" and "Akin Billy Smith," the Government argued that facts relevant to the 2008 Trial were similar to the facts in the charged conspiracies in this action and were therefore relevant to Alade's knowledge of the nature of the charged conspiracies in this action. Alade opposed the admission of this evidence arguing that it was inadmissible as a prior similar act under Federal Rule of Evidence 404(b) and its probative value was substantially outweighed by the prejudice to Alade.

Prior to trial, the Court reserved ruling as to both the admissibility of evidence related to the 2008 Trial and whether it was properly admissible on the Government's direct case or only in a rebuttal case, noting that both would turn on whether defense counsel challenged Alade's knowledge of the charged conspiracies. (Transcript of March 2, 2010 Pre-Trial Conference at 85-87.) Prior to jury selection, in an effort to eliminate defense counsel's need to voir dire prospective jurors on the issue of a defendant's prior acquittal at trial and to eliminate the Government's need to fly in a witness who would testify about Alade's presence during the testimony elicited at the 2008 Trial, the parties agreed to a stipulation that stated Alade was present for a court proceeding in 2008 — but did not state he was a defendant at trial — and listed the pieces of evidence presented at the 2008 Trial that the Government argued connected Akin Billy Smith to the 2008 Trial. (Tr. at 16-21.)

On March 15, 2010, after one week of trial and near the end of the Government's proof, defense counsel sought to withdraw from the signed stipulation, citing a factual error. The stipulation, as signed, stated the package of heroin was sent "from India," but defense counsel argued there was nothing in the record of the 2008 Trial to show the package was sent from India. (Id. at 927.) Instead of agreeing to strike or re-phrase the two incorrect words, defense counsel sought to withdraw from the stipulation in its entirety, making the same arguments that were raised prior to trial and before the parties signed the original stipulation (id. at 927-31), and the same arguments made on this motion for a new trial. After some discussion, the Government and defense counsel agreed to modify the stipulation so that it read the package of heroin "had been sent by express mail from Texas to be delivered to an apartment in Detroit." (Id. at 931.) In agreeing to this modification, defense counsel stated:

Your Honor, for the record, I want to make my position clear here. I think that any evidence, it is my position that any evidence in the 2007 case violates Rule 404(b) and should not be in. Because the court has ruled that it comes in for knowledge, I have agreed to the stipulation.

(Id.) There is some question whether defense counsel has properly preserved this objection. The Court did not explicitly rule that "it comes in for knowledge," rather, defense counsel resolved its objection to the admission of evidence related to the 2008 Trial prior to jury selection on March 8, 2010 when counsel signed the initial stipulation. Counsel's attempt to re-argue the same objection by seeking to withdraw from the stipulation in its entirety (as opposed to merely objecting to the factually inaccurate words) is at best a thinly-veiled attempt to get a second bite at the apple on this evidentiary issue or an example of lawyer gamesmanship.

Even assuming that Alade's objection to evidence related to the 2008 Trial was properly preserved, it is without merit. First, as the Court noted at trial, such evidence is not "prior similar act" evidence to be analyzed under Federal Rule of Evidence 404(b). (See id. at 928.) By eliminating any reference to acts on the part of Alade and eliminating any reference to the fact that he was on trial, the stipulation cannot be considered "[e]vidence of other crimes, wrongs, or acts." Fed.R.Evid. 404(b). Therefore, Alade's arguments that the subject of the 2008 Trial and the charged conspiracies are not "sufficiently similar" (see Alade Mem. at 28-29) to permit admission under Rule 404(b) miss the point entirely. Rather, the stipulation was offered as evidence probative to the issue of Alade's knowledge of the facts stated in the stipulation, and the Court instructed the jury about the limited purpose for which it was admitted: "It is admitted only insofar as it may show that defendant Alade had knowledge of facts that are stated in the stipulation." (Tr. at 976.)

Under Federal Rule of Evidence 403, the stipulation is properly admitted unless its probative value is substantially outweighed by the prejudice to the defendant. The probative value of the stipulation is clear. It is relevant and probative to Alade's knowledge as of 2008 that a package containing a large amount (approximately one kilogram) of heroin had been sent to Detroit and had been linked to his uncle, Akin Billy Smith. Alade argues that Akin Billy Smith was barely mentioned in the 2008 Trial and therefore the facts contained in the stipulation do not establish that Smith was involved in that case. This argument goes to weight, not admissibility, because even if the facts contained in the stipulation do not conclusively establish that Akin Billy Smith personally sent the heroin or that he was responsible for the heroin, that does not alter the fact that the stipulated facts are relevant and probative to the issue of whether Alade knew in 2009 that his uncle Akin Billy Smith was involved in heroin trafficking. Alade further attacks the probative value of the stipulation on the ground that "Mr. Alade did not contest his knowledge of his uncle's drug dealings" (Alade Mem. at 30), but the stipulation was entered into before it was clear that was the defense's position and is probative to more than the mere issue of Smith's "drug dealings." It is probative of Alade's knowledge that his uncle was involved in heroin specifically and that his uncle was involved in large quantities of close to one kilogram. Further, while defense counsel may not have contested Alade's general knowledge that Smith is a drug dealer in argument, the Government correctly notes that counsel for Alade attempted to impeach and discredit Agent Galu (who testified to Alade's post-arrest statements in which Alade admitted his uncle was a heroin trafficker) both generally and specifically with respect to his preparation of the report of Alade's post-arrest statements. (See Gov't Mem. at 25.)

Finally, Alade argues that he was prejudiced by the introduction of the stipulation. The theory of prejudice offered by Alade is that the stipulation informed the jury that "Mr. Alade had a transactional relationship with the court system, and was an interested party at that proceeding." (Alade Mem. at 30.) This theory of prejudice to Alade is unpersuasive, and even assuming there was some remote possibility of prejudice based on the jury hearing of his attendance at a court proceeding, given Akin Billy Smith was his uncle, the stipulation did not show Alade had a transactional relationship with the court system as an interested party as opposed to a party with an interest due to Alade's relationship with Smith. In any event, any possibility of prejudice was outweighed by the probative value of the stipulation under Rule 403.

Alade also argues he was prejudiced by the introduction of the stipulation by reiterating the argument that the 2008 Trial and the charged conspiracies were not sufficiently similar. As previously discussed, this argument is only relevant to a Rule 404(b) analysis, which is inapplicable in this instance.

(2) Alleged Spoliation of Evidence

Alade argues that the Court's denial of his request for a spoliation of evidence charge, based on the Government's failure to preserve the Missing Call, merits a new trial. Citing In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 147 (2d Cir. 2008) and Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998), Alade argues that he was entitled to a spoliation of evidence charge because the Government's "intentional destruction" of the Missing Call supports the inference that the contents of the call would have been unfavorable to the Government. (See Alade Mem. at 30-32; see also Alade Reply Mem. at 14-15 (further arguing that Government's "deliberate" or "negligent" destruction of tape merits a new trial).)

Critically absent in Alade's argument is any support in the record for Alade's assertion that the Missing Call was destroyed. Defense counsel points to inconsistencies in the testimony of Detective Berberich and Special Agent Jordan, and urges the Court to interpret these inconsistencies as "perjury" and "lies" by Detective Berberich. (Alade Mem. at 30-31; Alade Reply Mem. at 14-15.) Detective Berberich testified that the Missing Call was not recorded because the recording device malfunctioned. (Tr. at 302.) He further testified that he was not able to listen to the call at the time it took place and therefore he did not memorialize the contents of the call in a report or memorandum at the time and was unable to testify as to its contents at trial. (Id. at 302-04, 307-08.) Berberich testified that "at that particular time because of where we were, because you had one party in one place, I was the 3-way point, the other party was in another place, there was no place that I can go monitor that particular phone call because that was plugged into the recording device." (Id. at 304 (emphasis added).) Defense counsel seizes on this as inconsistent with the fact that it is clear from the recordings of the first and third calls placed between Saad and Alade that Detective Berberich was listening to the calls as they took place. (GXs 4T-5, 4T-6; Alade Mem. at 30-31; Alade Reply Mem. at 15-16.) But read in its full context, Detective Berberich's testimony that he could not listen to a call as it took place appears to be specific to the Missing Call. "Q. You are telling me there is no way to listen, you have no idea what Mr. Alade said on that phone call? A. On that one particular phone call, no." (Tr. at 304 (emphasis added).) Defense counsel's assertion that "when Detective Berberich testified that it was impossible to listen to the calls as they were being made, his testimony was clearly perjurious" (Alade Mem. at 30), is premised on the assumption that Detective Berberich testified that he could never listen to any of the calls contemporaneously as they were recorded — an assumption that is not supported by a fair reading of his testimony.

Because Detective Berberich appears to have referred solely to the Missing Call in testifying that he couldn't listen as the call was in progress, it is unclear if his testimony was that the reason he could not listen contemporaneously was solely because the recorder was plugged into the phone (as defense counsel assumes) or if his testimony was that the reason he could not listen contemporaneously was because the recorder was plugged into the phone and the recorder malfunctioned.

Alade also points to inconsistencies between Detective Berberich and Agent Jordan's testimony. Special Agent Jordan testified that, as the 3-way point to the conference call, Detective Berberich can hear the conference call while the recording is going on. (Tr. at 1225.) This point is uncontroversial given that it is clear from the recordings of the first and third calls between Saad and Alade that Detective Berberich listened to the calls as they were recorded. Further, this point is only inconsistent with Detective Berberich's testimony to the extent that Berberich testified he could never hear a call as it was taking place and being recorded — an interpretation that defense counsel assumes but is, at best, unclear from the testimony.

Special Agent Jordan also testified about how the recording device operated and how it was hooked up to the telephone, stating "there is a wire attached with the earpiece. The person that is making the phone call puts the earpiece in their ear and hits the record button and makes the call. And the recorder picks up both sides of the conversation" (id. at 1214) and "[t]he recorder wasn't hooked up to the phone. The recorder is a device that you hold, and the person that is on the phone wears the piece in their ear" (id. at 1224). Detective Berberich testified that the phone that was used as the three-way point was plugged into the recording device. (Id. at 304.) This is a contradiction, but there is no indication which witness's testimony was incorrect. If Detective Berberich was correct in his description of the equipment and the recorder plugs into the telephone and an earpiece plugs into the recorder, the call is essentially wired through the recording device and Detecitve Berberich's assertion that he could not listen to the call for which the recording device malfunctioned becomes more plausible. Even assuming Agent Jordan was correct in her description of the equipment and Detective Berberich was mistaken, there is no indication in the record that he intentionally lied as opposed to being unclear in his answers or mistaken in his recollection.

In fact, it appears most likely that Agent Jordan was mistaken in her description of the equipment because if an earpiece connected to the recorder is needed to hear the conversation that is being recorded (as opposed to hearing the call out loud over speaker phone), it does not appear that the recorder could pick up the telephone conversation without being plugged into the telephone.

In sum, there exist certain ambiguities in the testimony related to the Missing Call, primarily related to whether Detective Berberich could hear the Missing Call as it took place and how the recording device was connected to the telephone. Instead of clearing up these ambiguities on the record, defense counsel now urges the Court to adopt its characterization of Detective Berberich's testimony as lies and perjury. Relying solely on defense counsel's own characterization of Detective Berberich's testimony, defense counsel further asks the Court to follow its logic, which is far from clear, and assume that the Government recorded the Missing Call and then intentionally destroyed it because it was exculpatory. Because there is no support in the record for the premise that Detective Berberich lied in his testimony, there is no basis to assume that the Missing Call was recorded and then destroyed by the Government. While the Missing Call clearly would have related to the change of meeting to the Yum Yum Donut Shop, there is no basis to assume the Missing Call would have been exculpatory.

(See Alade Reply Mem. at 15 ("The only logical reason for Detective Berberich to falsely claim that he could not hear the contents of a call when he clearly could is so that he would not have to testify as to the contents of that call, and the only reason why he would not want to testify as to the contents of that call is because that testimony would exculpate Mr. Alade.").)

Because a spoliation of evidence charge requires a party's "intentional destruction" of evidence, Kronisch, 150 F.3d at 126;accord In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d at 147-48, there was no support in the record for such a charge and it was not error for the Court to deny defense counsel's request. Further, even in the absence of a spoliation charge, counsel for Alade was able to — and did — argue to the jury that Government witnesses were not credible because of the Missing Call and that they should draw the inference that the Missing Call would have been favorable to Alade. (Tr. at 1413-14.) Because the Court did not err in denying defense counsel's request for a spoliation of evidence charge and because defense counsel retained its ability to argue the issue of spoliation to the jury, the interests of justice do not require a new trial under Rule 33 because of the Missing Call.

Alade makes an additional argument — raised for the first time in his reply memorandum — that the Government's failure to preserve the Missing Call amounted to a violation of Brady v. Maryland, 373 U.S. 83 (1963) and Alade's due process rights, and therefore the Government's failure to preserve the Missing Call standing alone merits a directed verdict or new trial. (Alade Reply Mem. at 14-19.) But like Alade's request for a spoliation of evidence charge, these new arguments rest on the assumption that the Missing Call was exculpatory, which in turn rests on the premise that Detective Berberich lied on the stand. For reasons already discussed, there is no support in the record or in the motion papers that Detective Berberich perjured himself and Alade's Brady and due process arguments are without merit.

Alade also argues he was entitled to a spoliation of evidence charge based on Agent Livanis' failure to preserve text messages sent from and received on the 718 Number in the form of the cellular telephone corresponding to the 718 Number itself. This argument is without merit. First, Alade cites no authority for the proposition that the Government has an absolute duty to maintain digital evidence in a particular form. Agent Livanis testified how he transcribed the text messages in his report and the jury was free to weigh the reliability of his procedure and the credibility of his testimony as it saw fit. Second, the Government's failure to retain the actual phone that sent and received text messages using the 718 Number caused no prejudice to Alade because the same information — records of calls from Alade's numbers and text messages to and from Alade — were also presented at trial through Alade's phone records (GXs 13A, 13C) in a format defense counsel does not challenge. The Government's failure to preserve the phone used by agents to send and receive text messages, posing as the courier, on February 19 and 20, 2009 does not require a new trial in the interests of justice under Rule 33.

(3) Hearsay Rulings

Alade takes issue with a number of hearsay rulings by the Court. (Alade Mem. at 13, 32-33.) Defense counsel repeatedly asked the Government's law enforcement witnesses what other agents observed and what other agents told the testifying witness (see, e.g., Tr. at 258-61, 263, 268, 281, 289, 313, 318, 701-02), to which objections were routinely sustained. Defense counsel's repeated assertions at trial that she was eliciting the testimony for knowledge, state of mind or effect on the listener notwithstanding (see, e.g., id. at 265-66), the questions, as phrased by counsel, call for rank hearsay. Further, nothing in the Court's rulings "frustrated the defendant's ability to question these agents about their decision-making" as Alade asserts. (Alade Mem. at 32-33.) Rather, the Court held a lengthy sidebar at trial where counsel for Alade explained part of their theory of the case — that the investigation was flawed, agents had made mistakes and therefore in February 2009 they were desperate to make arrests. (Tr. at 265-66.) After counsel's explained the relevance and her position that the testimony sought was "offered as to his state of mind" and "not offered for the truth of it," the Court stated "[p]hrase your questions appropriately then" (id. at 266), inviting counsel to either lay a proper foundation for the testimony which would normally (if offered for its truth) be hearsay or to frame questions in a way that focused on the witness's knowledge and state of mind directly instead of focusing solely on the contents of the challenged out of court statements. In sum, nothing in the Court's hearsay rulings prevented defense counsel from adequately and skillfully presenting its theory of the case and the interests of justice do not require a new trial on this ground.

(4) Specific Intent Jury Charge

Finally, Alade takes issue with the Court's jury charge as it relates to specific intent — in particular, the Court's explanation of the term "knowingly and intentionally" as "deliberately and purposely" and "the product of the defendant's conscious objective rather than the product of a mistake or an accident or mere negligence or some other innocent reason." (Id. at 1482.) Alade claims the Court's charge "did not explain that the government had to prove that Mr. Alade had any knowledge of the purposes of the conspiracy" and Alade contends that "[a]ll that was required, according to the charge, was that Mr. Alade's actions were deliberate." (Alade Mem. at 34.) He further argues that the Court's explanation of the term "unlawfully" as "simply contrary to law" confused the jury and may have led them to conclude that a defendant "need only have been aware of the generally unlawful nature of the acts." (Id. (emphasis added).) First, the portions of the charge which Alade chooses to challenge are sections explaining specific terms, not portions representing the Court's statements of the Government's ultimate burden on any issue. Second, Alade's arguments demonstrate a failure to read the charge as a whole and conveniently ignore sections where the Court made it clear that the Government needs to prove specific intent beyond a reasonable doubt. Immediately prior to the challenged excerpts of the charge, the Court instructed the jury that:

The government must prove beyond a reasonable doubt that each defendant knowingly and intentionally entered into the conspiracy with a criminal intent, that is, with a purpose to violate the law, and that each defendant agreed to take part in the conspiracy and to promote and cooperate in its unlawful objectives.

(Tr. at 1481-82 (emphasis added).) The Court then instructed on the specific intent requirement a number of times

If you conclude that the government has proven beyond a reasonable doubt that one or both of the conspiracies charged in the indictment existed, then you must next determine the second question: did the defendant you are considering intentionally participate in the conspiracy with knowledge of its unlawful purpose and in furtherance of its unlawful objective.

. . .

It is for you to determine whether the government has established to your satisfaction, beyond a reasonable doubt, that each defendant knowingly participated in each of the charged conspiracies with the intent to further its unlawful purpose.

. . .

In sum, a defendant with an understanding of the unlawful nature of the conspiracy must have intentionally engaged, advised or assisted the charged conspiracy for the purpose of furthering the illegal purpose of the charged conspiracy.

(Id. at 1481, 1483, 1484-85.) The Court's charge as to specific intent was proper and Alade's arguments that a jury could have been misled and convicted under a lesser standard are without merit.

Counsel for Alade also requested a jury charge based on language in United States v. Ceballos, 340 F.3d 115 (2d Cir. 2003), which states that in order for a defendant to be convicted of conspiracy, "he must in some sense promote [the] venture himself, make it his own, have a stake in its outcome, or make an affirmative attempt to further its purposes." Id. at 124 (internal citations omitted); see also id. at 127-28 ("There must be proof that he intended to join the conspiracy, that is, that he participated in it, or in some way made an affirmative attempt to further the conspiracy's purposes, or made it his own venture in the sense of having a stake in its outcome."). The Court denied defense counsel's requested charge that incorporated all of the above-quoted language. (Tr. at 1285-91.) The Court rejected the "stake in the outcome" language as possibly conveying that the Defendant had to be shown to have an investment in the venture. (Id. at 1291.) Further, the recitation of types of proof that could be sufficient to show specific intent to join a conspiracy, as outlined in Ceballos, is a non-exhaustive list and the types of proof are listed in the alternative, as the Court noted during the charging conference. (Id. at 1287.) Incorporating the language in the jury charge would have at best been superfluous and at worst caused jury confusion. Nothing in the Court's charge on specific intent was contrary to controlling case law.

B. Mr. Akefe

Mr. Akefe moves for a new trial based on two grounds, the Court's admission of a Brutonized statement by Alade which Akefe argues violated his right of confrontation and the denial of Akefe's motion to suppress the evidence seized from his vehicle during his arrest without an evidentiary hearing.

(1) Brutonized Statement

The Government moved, in limine, to admit a Brutonized version of a post-arrest statement made by Alade. According to Agent Galu, upon seeing Akefe, Alade said, in sum and substantce, "I told you I could have helped you guys." (Government's Memorandum of Law in Support of its Motions In Limine dated February 23, 2010 at 14.) The Government proposed to replace Akefe's name with "another individual arrested in the same case" (id.), and after hearing argument at the final pre-trial conference, prior to jury selection, the Court granted the Government's motion (Tr. at 22).

At trial, the Government elicited the following testimony from Agent Galu: Q. Other than this post-arrest interview, did Mr. Alade make any other statements to you? A. He did. Q. When did he make those statements? A. When, later that evening, I had transported Mr. Alade to the Wayne County jail and as I was escorting Mr. Alade from my vehicle to the jail processing center, he stated that, he said, oh man, I didn't know you guys got him too, man, I can help you out, I can help you out. Q. Who was he referring to? A. Another person arrested in this case. (Id. at 566-67.) A lengthy sidebar followed where counsel for Akefe objected and moved for a mistrial. (Id. at 573.) The argument focused on whether "another person arrested in this case" was too suggestive. The Court noted that it would have been preferable if the testimony "came out as a single question and answer" but allowed the testimony because the Government's motion in limine had already been granted with respect to the Government's proposed formulation (including "another person in this case") and because "there is no evidence only two persons were arrested in this case." (Id. at 570-73.) In fact, the defense had made it clear that other persons had been arrested in this investigation, including, but not limited to, Hafrida Saad, Ademilola Ogunmokun, Raymond Nsoedo and Lavan Robertson. (See id. at 225, 232, 332, 603-04, 752.)

Defendant Akefe's reliance on Crawford v. Washington, 541 U.S. 36 (2004), in attacking the Government's use of Alade'sBrutonized statement is misplaced because Crawford held that testimonial hearsay offered against a criminal defendant is unconstitutional under the confrontation clause and therefore inadmissible. Here, the challenged testimony was offered only against Alade and the jury was instructed accordingly. (Tr. at 944, 1490-91.) Therefore, Crawford is inapplicable and Alade'sBrutonized post-arrest statement admitted solely against Alade is only violative of Akefe's confrontation clause rights if it violates the rules set out in Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and their progeny. The Second Circuit has been clear that statements made by defendants are admissible against the speaker where the statement is redacted to replace the names of co-defendants with neutral pronouns and the statement on its face does not connect co-defendants to the crimes. See United States v. Sanin, 252 F.3d 79, 84-85 (2d Cir. 2001); United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989).

The statement at issue here falls squarely within Second Circuit precedent because Akefe's name was replaced with a neutral pronoun and the statement, standing alone, did not implicate Akefe. There was no evidence that the two defendants on trial were the only individuals arrested in the investigation. Rather, throughout the trial there was mention of numerous others who were arrested during the course of the same investigation that resulted in the arrests of Alade and Akefe. (See Gov't Mem. at 18.)

(2) Suppression Motion

Next Akefe argues that the Honorable Deborah A. Batts, who presided over this case before it was transferred to the undersigned, improperly denied his pre-trial motion to suppress the evidence seized from his vehicle at the time of his arrest. The Government correctly notes that "Akefe has not presented any new facts or law, or exceptional circumstances, that would undermine Judge Batts' proper denial of his suppression motion. . . ." (Gov't Mem. at 42.) Rather, Akefe makes the conclusory assertion that "[o]n October 14, 2009, this motion was improperly denied by a different judge in this court without an evidentiary hearing. The Court made its findings without a factual record and with very little explanation as to its ruling." (Akefe Mem. at 7.) To the contrary, in a thorough ten-page order dated October 14, 2009 (the "10/14/09 Order"), Judge Batts ruled that given the totality of the circumstances, probable cause existed for law enforcement officials to arrest Akefe on February 20, 2009 (10/14/09 Order at 7), that the search of Akefe's vehicle was a lawful search incident to an arrest where it was reasonable for law enforcement officials to believe evidence relevant to the crime of arrest might be found in the vehicle (id. at 7-8 (citing Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009)), that an evidentiary hearing is not necessary where a defendant has not raised a factual dispute by "definite, specific, detailed, and nonconjectural" moving papers (10/14/09 Order at 5 (citing United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992))), and that in this case, Akefe's conjecture that he does "not recall" being advised of his Constitutional rights was insufficient to raise a factual dispute requiring an evidentiary hearing (10/14/09 Order at 8-9). Akefe has provided no reason the Court should revisit Judge Batts' ruling and, in any event, after review of the 10/14/09 Order the Court finds no error and nothing in that ruling that requires a new trial in the interests of justice.

VI. MR. AKEFE'S MOTION FOR RECONSIDERATION OF DETENTION PENDING SENTENCE AND APPEAL

Finally, Mr. Akefe moves the Court for reconsideration of its oral order remanding him to federal custody after the jury returned its verdict, arguing that pursuant to 18 U.S.C. § 3145(c) and United States v. DiSomma, 951 F.2d 494 (2d Cir. 1991), there are "exceptional reasons" why his detention is not appropriate. The only exceptional reasons cited by Akefe are his view that a number of issues on appeal "appear to be ones that will entitle the defendants to some relief in this matter" and the fact that Akefe is the sole owner of his real estate company and he is the only one who can finalize certain lucrative contracts with the City of Detroit. (Akefe Bail Mem. at 4.) For the reasons discussed in this opinion, the Court is of the view that the issues raised by Akefe on his new trial motion do not present issues that will likely prove meritorious on appeal and thus do not represent "exceptional reasons." The need to run his business is a personal concern and is in no way a remarkable or uncommon factor, nor is it truly exceptional or "out of the ordinary." See United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004). Any convicted criminal defendant who owns a business or is employed in any way will have concerns similar to those of Akefe, further demonstrating that his situation does not represent "exceptional reasons" that would merit release pending sentence and appeal pursuant to 18 U.S.C. §§ 3142, 3143 or 3145.

VII. CONCLUSION

For the reasons disussed herein, Mr. Akefe and Mr. Alade's motions for judgments of acquittal pursuant to Federal Rule of Criminal Procedure 29 or for a new trial pursuant to Federal Rule of Criminal Procedure 33 are denied in all respects. Mr. Akefe's motion for reconsideration of detention pending sentence and appeal is also denied.

IT IS SO ORDERED.