United States District Court, D. Maine
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
JOHN A. WOODCOCK, Jr., Chief District Judge.
Following a verdict of guilty on a number of criminal offenses, Andrew J. Zarauskas seeks a new trial, claiming that the prosecutors improperly commented on his Fifth Amendment privilege against self-incrimination and his right to counsel, and that the prosecutors incorrectly argued that he must prove his own innocence. The Court concludes that the prosecutor's comments were not inappropriate and denies Mr. Zarauskas' motion.
I. LEGAL STANDARD
The court may grant a new trial in a criminal case "if the interest of justice so requires." FED. R. CRIM. P. 33(a). "Ordering retrial is a rare remedy, " used only "where a miscarriage of justice would otherwise occur, or where the evidence weighs heavily against the jury's verdict." United States v. Vázquez-Botet, 532 F.3d 37, 59 (1st Cir. 2008).
A. Indictment, Trial and Verdict
On November 14, 2012, a federal grand jury indicted Mr. Zarauskas on one count of conspiracy to smuggle narwhal tusks, Indictment at 1-8 (ECF No. 2); one count of conspiracy to commit money laundering, id. at 8-12; two counts of smuggling narwhal tusks, id. at 12-13; and two counts of money laundering. Id. at 14-15. On February 14, 2014, following a four day trial, a jury convicted Mr. Zarauskas on all counts. Jury Verdict Form (ECF No. 132). On May 2, 2014, Mr. Zarauskas moved for a new trial. Mot. for New Trial (ECF No. 158) ( Def.'s Mot. ). The Government opposed the motion on May 22, 2014. Gov't's Opp'n to Def.'s Mot. for New Trial (ECF No. 162) ( Gov't's Opp'n ). After the Court granted several extensions, Mr. Zarauskas replied to the opposition on June 12, 2014. Def.'s Reply to Gov't's Opp'n to Mot. for New Trial (ECF No. 165) ( Def.'s Reply ).
B. The Case Against Andrew Zarauskas: An Overview
A narwhal is a medium-sized toothed whale that lives in the Artic. Indictment at 2; 1 Tr. of Proceedings 22:22-25 (ECF No. 140) (Feb. 11, 2014) ( 1 Trial Tr. ). The narwhal is characterized by a conspicuous tusk or tooth. 2 Tr. of Proceedings 178:1-11, 179:19-180:15 (ECF No. 141) (Feb. 12, 2014) ( 2 Trial Tr. ). Some people prize and collect narwhal tusks and the tusks sell for as much as $70 an inch. See, e.g., 4 Tr. of Proceedings 566:6-8 (ECF No. 147) (Feb. 14, 2014) ( 4 Trial Tr. ); Gov't Ex. 135 at 42:5-8. Narwhals are marine mammals protected by the treaty known as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249, and by federal law under the Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361 et seq. CITES is implemented in the United States by the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. The ESA criminalizes violations of CITES, including the trading or possessing of narwhal tusks. Id. § 1538(c)(1). Similarly, the MMPA criminalizes the importation of narwhal tusks. 16 U.S.C. § 1372(a)(2)(B). The smuggling statute makes it unlawful to fraudulently or knowingly import narwhal tusks or bring them into the United States, 18 U.S.C. § 545, and the money laundering statute prohibits the transfer of money from the United States to or through a place outside the United States with the intent to promote smuggling. 18 U.S.C. § 1956(a)(2)(A).
At some point, federal officials began to investigate a narwhal smuggling operation that originated in Canada and was run by Gregory and Nina Logan. Indictment at 5. The investigation revealed that the Logans had smuggled narwhal tusks into the United States through the Milltown Port of Entry in Calais, Maine. Id. Mr. Logan would take the tusks to Federal Express in Bangor, Maine, and ship them to customers throughout the United States, including Mr. Zarauskas. Id. at 6. The federal agents learned that Mr. Zarauskas had begun purchasing the tusks in 2002 and had continued to purchase them until 2010. 2 Trial Tr. 100:1-25. Mr. Zarauskas, who not only ran a construction business but also collected and sold antiques, would resell the tusks, primarily at flea markets. Id. 217:17; 1 Trial Tr. 31:5-11, 64:13-21. The investigation established that Mr. Zarauskas paid the Logans for the tusks by issuing checks, money orders and international money orders. See, e.g., 3 Tr. of Proceedings 336:1-7, 406:13-22, 408:22-409:7 (ECF No. 142) (Feb. 13, 2014) ( 3 Trial Tr. ).
Federal officials knew Mr. Zarauskas because he had approached them around 2003 to provide information against a resident of Nantucket, Massachusetts, who had been involved in the illegal purchase of sperm whale teeth. 1 Trial Tr. 59:13-62:4. Over the next several years, Mr. Zarauskas provided extensive information to federal law enforcement officers about the illegal sperm whale tooth trade, leading to the investigation and conviction of numerous individuals. Id. 66:2-11; 2 Trial Tr. 153:1-8.
On February 17, 2010, federal agents decided to meet with Mr. Zarauskas at the Cafe Vivaldi in Union, New Jersey, and confront him with his involvement in the Logan narwhal smuggling operation. 1 Trial Tr. 66:15-68:5.
C. The Cafe Vivaldi Interview of Mr. Zarauskas
Mr. Zarauskas did not testify at trial. However, at trial, the Government introduced an audio recording, without objection, of an extensive pre-indictment interview of Mr. Zarauskas that occurred on February 17, 2010 by federal agents at a restaurant in Union, New Jersey. Id. 41:14-15, 42:9-10, 70:18-71:18. Special Agents Guidera and Holmes' interview of Mr. Zarauskas at the Cafe Vivaldi was over two hours long. Id. 67:13-14, 68:2-5, 69:7-11. As the agents had been working with Mr. Zarauskas as an informant on a different smuggling case, it was Mr. Zarauskas' understanding that the purpose of the interview was to discuss that case. Id. 67:19-68:1.
However, as the agents planned, the interview turned to Mr. Zarauskas' own alleged smuggling of narwhal tusks. Much of the dispute turns on the Government's comments during closing argument about what Mr. Zarauskas did not say during the Cafe Vivaldi interview. Mr. Zarauskas, who was talkative and expansive during the first part of the interview, became noticeably reticent and nervous as the agents shifted their focus to him. 2 Trial Tr. 113:20-114:15. Significantly, even though the agents were clearly pressing him for an explanation of his role in a narwhal tusk smuggling operation involving Greg and Nina Logan, Mr. Zarauskas never denied that he was involved in the Logan operation. Id. 114:19-22, 114:25-115:2.
D. The Government's Opening Statement
During the Government's opening statement, the federal prosecutor discussed conversations that the government agents had with Mr. Zarauskas, but he did not specifically refer to the Cafe Vivaldi interview. See 1 Trial Tr. 22:10-30:3.
E. Mr. Zarauskas' Opening Statement Regarding the Cafe Vivaldi Interview
During Mr. Zarauskas' opening statement, defense counsel previewed this interview in the context of Mr. Zarauskas' theory of the case:
You're going to hear a conversation that took place in a cafe in New Jersey. Mr. Zarauskas was invited to the cafe by the agents. They recorded it. You'll hear it. The defense will not object to you hearing it - Mr. Zarauskas' actual words, the agents' actual words. Mr. Zarauskas wants to be helpful to the agents. As you listen to the evidence, please keep in mind the actual words and the actual sentiment behind them, not any particular spin put on them by government agents because you'll hear government agents on this tape, and they'll be saying to Mr. Zarauskas stuff like, well, you must have known or how was he getting them across. And you'll hear Mr. Zarauskas try to be helpful, as a good citizen would.
But listen to the words actually coming out of Mr. Zarauskas' mouth. Listen to the words actually coming out of the agents' mouth. Don't listen to the words coming out of the attorneys' mouths about what it all meant.
F. Trial Evidence
On the first day of trial, the Government moved to admit and play to the jury an audiotape of the February 17, 2010 interview; Mr. Zarauskas did not object and the Court admitted an audiotape of the interview. Id. 70:18-71:18. In fact, the Government intended to play only select portions of the interview, but following an objection by defense counsel, the audiotape of the entire interview-all two hours and nine minutes-was played to the jury. Id. 75:10-77:10.
After playback of the recording finished, on February 12, 2014, the prosecutor had the following exchange with Special Agent Guidera:
Q Okay. What, if anything, did you observe about the defendant's body language during the interview?
A I observed it changing as we got into the topic of narwhals.
Q In what way did you observe it changing?
A Um, in that when we started the interview, um, he was very engaged. He was forward-sitting. He was - he was very engaged and calm, if you would.
And as we got into the narwhal topics, he went from being open to more of a closed position and to sitting way back in his chair and tensing up with his hands, and I could see his - his breathing go rapid and shallow, and he began grooming his face, and at the same time, he began to have sweat bead up on his forehead until it started to run down the side of his head - face.
Q During the interview, was the temperature uncomfortable inside the Cafe Vivaldi?
A No, it wasn't.
Q During the interview, did the defendant ever say anything like you're accusing me of something I didn't do here?
A No, he didn't.
Q Did he ever raise his voice at you?
A He did not.
Q Did he ever get mad at you or say that you misunderstood what happened?
Q Now, near the end -
MR. SMITH [Defense Counsel]: Objection, Your Honor.
2 Trial Tr. 114:1-115:4. After the Court overruled the objection, id. 115:18-24, the direct examination continued:
Q Special Agent Guidera, near the end of the interview, you and the defendant were discussing the possibility of looking at things that were ...