UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 09-cr-33-JL Opinion N o .

Anthony Harris

MEMORANDUM ORDER

On September 8 , 2009, the jury convicted defendant Anthony

Harris of five of the seven counts alleged in the superseding

indictment:

• count 1 , conspiracy to commit robbery, in violation of

;

• count 2 , robbery, in violation of

and

;

• count 3 , use and brandishing of a firearm during and in

relation to a crime of violence, in violation of

(c)(1)(A),

, and Pinkerton v .

United States,

(1946);

• count 4 , possession of a firearm by a convicted felon,

in violation of

(g)(1); and

• count 7 , possession of a stolen firearm, in violation

of

(j). The jury acquitted Harris of two counts:

• count 8 , transporting a stolen firearm, in violation of

(i); and

• count 9, transporting a stolen motor vehicle, in

violation of

.

The other two counts -- count 5 , conspiracy to commit robbery;

and count 6, robbery -- were dismissed without prejudice before

the jury was sworn.

Before the court is Harris’s motion for judgment of

acquittal under Fed. R. Crim. P. 29(c). 1 Harris argues that, in

light of the two acquitted counts and the two dismissed counts,

the prosecution failed to present sufficient evidence for a jury

to convict him of any of the charged offenses. The court denies

the motion. As explained below, the evidence was sufficient to

support each conviction. There was nothing inconsistent about

the verdicts, because the jury was free to accept the testimony

of a cooperating government witness on some matters, but reject

it on others.

1 Document n o . 103.

2 I. Applicable legal standard

When faced with a motion for judgment of acquittal under

Rule 29(c), the court must determine whether, “after assaying all

the evidence in the light most amiable to the government, and

taking all reasonable inferences in its favor, a rational

factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

crime.” United States v . Thomas,

9 , 53 (1st Cir. 2006)

(quoting United States v . Carucci,

(1st Cir.

2004)). Because it is the jury’s responsibility to assess the

credibility of witnesses, “[c]redibility issues must be resolved

in favor of the verdict.” United States v . Pérez-Ruiz,

, 7 (1st Cir. 2003) (citing United States v . Alicea,

(1st Cir. 2000)). Although the prosecution has the

burden of proof at trial, on a Rule 29 motion, the defendant

“bear[s] the heavy burden of demonstrating that no reasonable

jury could have found [him] guilty beyond a reasonable doubt.”

United States v . Munoz,

(1st Cir. 1994)

(citing United States v . Innamorati,

(1st Cir.

1993)).

3 II. Analysis

Harris argues that there was insufficient evidence for the

jury to return guilty verdicts on any of the five convictions.

The court disagrees. One of Harris’s co-conspirators, Orlando

Matos, testified against him at trial and recounted in detail how

they, together with co-conspirator Thomas Peterson, planned and

executed the robbery of a Hannaford Food & Drug store in Dover,

New Hampshire. Matos testified, for example, that Harris

provided transportation to and from the scene of the robbery in a

pickup truck that Harris claimed to have stolen; that Harris also

provided a stolen firearm to Matos for use during the robbery;

that Harris cased the store shortly before the robbery; that

Harris served as a lookout during the robbery; and that Harris

received a one-third share of the proceeds from the robbery.

This testimony alone, which was based on firsthand knowledge, if

believed, would support the jury’s guilty verdicts. See, e.g.,

United States v . Pena-Lora,

7 , 23-24 (1st Cir. 2000)

(“[A] conviction based solely upon the uncorroborated testimony

of an accomplice can be upheld, as long as the jury is properly

instructed and the testimony is not incredible as a matter of

law.”) (citation omitted).

In any event, the prosecution bolstered Matos’ testimony

with a variety of other evidence, including surveillance tapes,

4 phone records, and victim testimony. For example, one of the

surveillance tapes showed an individual, whom Matos identified as

Harris, walking through the store shortly before the robbery.

Phone records also indicated that, just minutes before the

robbery, a message was transmitted from Harris’ cell phone to

Peterson’s cell phone (or vice versa), which Peterson

accidentally dropped and left behind at the store. Matos

testified that this communication was a push-to-talk “chirp” used

to test the phones as a potential warning mechanism. In

addition, the prosecution presented evidence that when Matos and

Peterson were later apprehended by police (without Harris), they

had only two-thirds of the robbery proceeds in their possession.

While not exhaustive, these examples demonstrate that Matos’

testimony did not stand alone and that the evidence, taken as a

whole and construed in the light most favorable to the

government, was sufficient to support conviction.

Harris argues that the jury, by acquitting him of the two

transportation counts (transporting a stolen firearm and

transporting a stolen vehicle), necessarily rejected Matos’

testimony on those two counts and thus could not reasonably have

believed his testimony as to the other counts. This is not the

law. The court instructed the jury, without objection from

Harris, that jurors may believe or disbelieve all or part of the

5 testimony of any witness. See, e.g., United States v . Byrne,

6 , 20 n.1 (1st Cir. 2006) (“The jury was entitled, of

course, to discredit all or part of the defendant’s

testimony.”).2

Nor does logic support Harris’ argument. The jury could

have believed all of Matos’ testimony and nevertheless found

Harris not guilty of the two transportation counts because of a

reasonable doubt about whether Harris actually transported the

stolen items across state lines. Unlike with most of the other

events he described, Matos was not present when Harris obtained

the stolen items. He testified about what Harris told him, but

he did not personally witness the items being stolen, or

transported across state lines. In contrast, Matos did claim to

have seen Harris in possession of the stolen items, and the jury

found Harris guilty of both possession counts. There is no

inconsistency between these verdicts. C f . United States v .

Hernandez,

0 , 33 (1st Cir. 1998) (explaining that

“verdicts are not irretrievably inconsistent” when there is a

“possible” explanation).3

2 The court also cautioned the jury on testimony offered by co-conspirators, cooperating witnesses, and immunized witnesses, as Matos fit all three categories. 3 Harris makes a similar argument with respect to the two counts that were dismissed before the jury was sworn. Those

6 III. Conclusion

For the foregoing reasons, the defendant’s motion for

judgment of acquittal under Fed. R. Crim. P. 29(c) 4 is DENIED.

SO ORDERED.

___ __ Joseph N. Laplarnte Unitfed States District Judge

Dated: September 2 3 , 2009

cc: Kenneth L . Perkes, AUSA Donald A . Kennedy, Esq. Andrew Michael Kennedy, Esq. Mark E . Howard, Esq. Michael J. Iacopino, Esq.

counts, however, were voluntarily dismissed without prejudice and related to a separate robbery, allegedly committed by Harris and Matos, of a Cumberland Farms store in Rochester, New Hampshire. There is no factual basis in the record for asserting that the dismissal of those claims somehow impugned Matos’ credibility, much less any legal basis for concluding that the jury therefore could not reasonably believe Matos’ testimony about the Hannaford robbery. 4 Document n o . 103.

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