Case 3:10-cr-00232-FAB Document 453 Filed 03/15/11 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Criminal No. 10-232 (FAB)
)
JUAN BRAVO FERNANDEZ )
)
and )
)
HECTOR MARTINEZ MALDONADO, )
)
Defendants. )
____________________________________)

UNITED STATES’ SUPPLEMENTAL RESPONSE TO DEFENDANT MARTINEZ’

MOTION TO DISMISS THE JURY’S GUILTY VERDICT ON COUNT ONE

The United States files this supplemental response to defendant Martinez’ motion to

dismiss the jury’s guilty verdict on Count One for the purpose of making an important

clarification. In his motion to dismiss, defendant Martinez makes a critical admission. There, he

says the following:

Although the statutory basis for Mr. Lowell’s motion and this Court’s
decision was not cited, it was plainly a motion made and judgment
rendered under Rule 29. Indeed, Rule 29 is the only basis for a
motion that can be made to challenge a conviction after the verdict
has been rendered. Simply put, a post-verdict decision to dismiss a
count is a judgment of acquittal because there is nothing else it can
be.

Dkt. No. 447 at 13-14 (emphases in original) (citation omitted).

Rule 29 of the Federal Rules of Criminal Procedure says that “[a]fter the government

closes its evidence or after the close of all the evidence, the court on the defendant’s motion must

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enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a

conviction.” Fed. R. Crim. P. 29(a) (emphasis added). Rule 29 also permits a defendant to move

for a judgment of acquittal after a guilty verdict. Fed. R. Crim. P. 29(c).

In his motion, filed at Docket Number 447, and during his post-verdict arguments,

defendant Martinez never argued that the evidence was insufficient to sustain a conviction on

Count One. Indeed, none of the cases relied on by defendant Martinez in his motion address the

issue of whether a court should grant a defendant’s Rule 29 motion to dismiss because the

evidence was insufficient to sustain a conviction. Instead, then and now, defendant Martinez

grounds his argument in what appears to be an inconsistency in the jury’s verdict form—the fact

that the jury checked “Guilty” for the conspiracy count while checking “No” for all three objects

of the conspiracy enumerated on the verdict form. This is an improper basis to request, or grant,

a Rule 29 motion to dismiss. It is not even an attempt to establish a basis for Rule 29 relief.

Moreover, the Government does not concede that the evidence presented at trial was insufficient

to sustain a conviction on Count One, or any of the counts for that matter. In fact, as argued at

the conclusion of the Government’s case, the evidence presented at trial is more than sufficient to

establish defendant Martinez’ guilt beyond a reasonable doubt.

Therefore, at most, defendant Martinez would be entitled to a mistrial on Count One and

a dismissal without prejudice—something he has not yet asked for. But it would not be proper to

grant a Rule 29 motion to dismiss based on something other than the sufficiency of the

evidence—the verdict form.

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Respectfully submitted,
JACK SMITH
Chief

Dated: March 15, 2011 By: /s/ Peter Koski

PETER M. KOSKI
DEBORAH S. MAYER
Trial Attorneys
Criminal Division, Public Integrity Section
United States Department of Justice
1400 New York Avenue, NW
Washington, DC 20005
(202) 514-1412

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date, I electronically filed the foregoing Supplemental

Response with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the attorneys of record for the defendants.

/s/ Peter Koski

PETER M. KOSKI
Trial Attorney
Criminal Division, Public Integrity Section
United States Department of Justice

Dated: March 15, 2011